Untitled Texas Attorney General Opinion ( 1939 )

_ -._ ._
Honorable A. E. Hickerson
County Auditor, Montgomery County
Conroe, Texas
Dear Mr. Hickerson;
Opinion No. O-926
Re: Whether or not the County
Rospi,talBoard of Managers
is authorized to issue and
sell monthly hospitalisa-
tion service policies.
With further reference to your letter of June 2,
kindly be advised that your request f~oran opinion as con-
tained therein has received the attention of this depart-
ment. The questions asked by you are as follows:
Vi. Would the enclosed agreement if put
in effect by the Montgomery County Hospital
(I will say, which is owned and operated by
Montgomery County) and sold only to residents
of Montgomery County, comply with any statute
which may exist.
"2. If so, is there any statute covering
the amount of expense which the Montgomery
County Hospital may expend in selling these
agreements and overhead in general caused the
hospital by virtue of inaugurating the plan.
"3. Based upon information by hospitals
using;such plan, we understand that it Is not
necessary to secure a charter, that so long as
Montgomery County Hospital issues the agreement
only to citizens of Montgomery County, that this
is all that is necessary. Is this correct?"
Hon. A. E. Hickerson, page 2 o-926
We observe from your letter that the Mont-
gomery County Hospital is owned and operated exclusively
hy Montgomery County, and we necessarily presume that
s'amewas constructed and established under the rovi-
sions of Chapter 5, Title 71, Articles 4478 to c4 98 in-
clusive, Revised Civil Statutes of 1925 and amendments
thereto.
Anticle 44.78provides:
"The commissioners count of any county
shall-have power to establish a county hospital
and to enlarge any existing hospitals for the
care and treatment of persons suffering from any
illness, disease or injury, subject to-the pro-.
visions of this chapter. At intervals of not'
less than twelv.8 .months. ten uer cent of the
quald$*d -.-tax ~aying'voters of a county
may petit.ionsuch court to provide for the es-
tablishing or enlarging of a county hospital, in
which event said court within the time designated
in such petition shall submit to such voters at a
special or regular election the proposition of
issuing bonds in such aggregate amount as may be
designated in said petition for the establishdng
or enlarging of such hospital. Whenever any such
proposition shall rece1ve.a majority of the votes of
the qualified property taxpayers voting at such
election, said commissioners court shall establish
and maintain such hospital and shall have the
following powers:
"1. To purchase and lease real property
therefor, or acquire such real property, and
easement6 therein, by condemnation proceedings.
"2. To purchase or srect all necessary
buildings, make all necessary improvements and
repairs and alter any existing buildings, for
the use of said hospital, The plans for such
erection, alteration, or repair shall first be
approved by the State *ealth Officer, if his ap-
proval is requested by the said commissioners
court.
“3. To cause to be assessed, levied and
collected, such taxes upon the real and personal
property owned in the county as it shall deem
Hon. A. E.B&ckerson, Page 3 o-926
necess&ry to provide the funds for the main-
tenance thereof, and for all other necessary
expenditures therefor.
“4. To ;issue county bonds to provide
funds-for the establishing, enlarging and ~_
equipping of said hospital and for all other
necessary permanent improvements in connection'
therewith; to do all other things that may be
required by law in order to render said bond3
valid.
"5. To appoint a board of managers for said
hospital.
"6. To accept and hold in trust for the
county, any grant or devise of land, or any
gift or bequest of money or other personal pro-
perty or any donation to,be applied, principal
or income or both, for the benefit of said
hospital, and apply the ssme in accordancs with
the terms of the gift. (Acts 1913, p. 711."
Article 4479, as amended by the Acts of the 40th
Legislature 1927, pertaining to the board of managers for
said hospital, provides that the term of office for 8Wh
member of said Board shall be two years, except that in
making the first appointments after this Act takes effect
three members shall be appointed for one year and three
m8mberS for two years 30 that thereafter three members
of said board till be appointed every two years. The
managers shall receive no compensation for their services
but the Act provides that they shall be allowed their
actual and necessary traveling and other expenses within
this state to be audited and paid by the commissioners
court in the same manner as other expenses of the hospital.
This Article further provides that any manager after being
cited may at any time for cause be removed from office
by said court.
Article l&80, pertaining to the powers of the
Board of Managers, provides in part that the Board shall
have the general management end control of the said
hospital, grounds, buildings, officers and anployees
thereof; of the inmates therein and of all matters rel ting
to the government, discipline, contracts and fiscal coe -
terns thereof; and make such r~11es and regulations asmay
. .
Hon. Aa E. Hickerson, page 4 o-926
seem to them necessary for carrying out the purposes
of such hospital.
Your attention is further.called to .the other
pnovisions of Chapter 3 pertaining to the admission of
patients, and that no discrimination shall be made in the
accommodations, care or treatment of any patients because
of the fact that the patient or his relatives contribute
to the cost of his maintenance, in whole or in part, and
that where a patient is able to pay for his maintenance
the hospital shall not charge any greater sum than the aver-
age per capita cost of maintaining such patlent including
a reasonable allowance for the interest on the cost of the
hospital.
The above statutes are called to your attention
for the purpose of showing the Legislature has treated the
subject of erecting, establishing, operating and maintain-
ing such hospital with considerable detail.
The commissd,onerscourt is given the authority
to acquire real property for such purpose; to erect all ne-
cessary buildings, and to levy and collect taxes for the
maintenance thereof. We do not construe such contracts
as-authorized to be made'by the county board of managers
as granting to said board any greater power or authority
,tomake and enter into contract for the maintenance of
said hospital than would be authorized to be made by the
commissioners court in the absence of a board of managerL.
We deem it unnecessary to go into the provisions of the
policy form aspresented~along with your request in view
of the authorities hereinafter cited.
"'The commissioners court is a creature of
the state constitution and its powers are limited
and controlled by the constitution end the laws
as passed by the legislaturel. Article 5, Section
18 of the Constitution of Texas; Baldwin v. Travis
County, 40 Tex. Civ. App. 199, 88 SW 480; Seward
V. Falls County (Tex. Civ. App. ) 2 6 SW 728;
Bland v. Orr, 90 Tex. 492, 39 SW 55!bI(--
Commissioners Court v. Wallace, 15 9. W. (2d) 535.
Hon. A. E. E:ckerson, page 5 O-926
It is a well settled principle of law that the
commissioners court does not have any authority except
that which is expressly or impliedly -conferredupon it
by law. Edwards County v. Jennings, 33 S W 385; 15 Cor.
Jur. 457, Sec. 103; 15 Car.-Jur. p. 537, Sec. 221.
"Where a power is granted and the method
of its exeroise is prescribed, the prescribed
method excludes all others, and must be follow-
ed." Lewis' Sutherland Statutory Construction,
Vol. 2, par. 572, 527, 828, 631.,
We quote from 15 Corpus Juris p. 537 as follows:
"In ac&ordance with .the ,generalrule here-
tofore stated, that county boards or county
courts have.knopowers other than those conferred
expressly or by necessary implication, such courts
or boards have no power to rent or lease property
or franchises owned bythe county, in the ab-
sence of statutory authority so to d."
We quote from the case of Edwards County v. Jennings,
33 SW p. 585, as follows:
"Counties are political or civil divisions
of the state, created for the purpo~seof bring-
ing government home to the people and supplying
the necessary means for executing the wishes~bf
the people, end bringing'into exercisesthe ma-
chinery necessary to the enforcement of local
government. Counties, being component parts of
the state, have no powers or duties except those
clearly set forth and defined in the constitution
and statutes. 1 Dill. Mun. Corp. (par. 25). The
statutes of Texas have clearly defined the powers,
prescribed the duties, and imposed the liabilities
of the commissioners court, the ~medium through.
which the different counties act, and from those
statutes must oome all the authority vested in
the counties. It is provided in the constitution
that the county commissioners so chosen, with the
county judge, as presiding officer, shall compose
the county commissioners court, which shall exer-
cise such powers and jurisdictions over all county
Hon. b. E. Kickerson, page.6 o-926
buslneaep as is conferred by this constitution
and the laws of this state, or as m&y be here-,
after prescribed. Constitution, Article 5, par.
8, sec. 18. Looking to the powers granted by
the Legislature by virtue of the above cohstitu-
tional provisions, we find that no authority is
given the commissioners court to enter into such
contract8 as the one sued on in this case. Revised
Statutes, Art. 1514. It is clear that the attempted
contract was beyong the power and authority donfided
in the county commissioners."
We find that in 1927 Honorable H. Grady Chandler,
Assistant Attorney General of Texas, wrote a conference opin-
ion rendered to Era E. P.!Watts, then County Auditor, of
Wichita County, Wichita Falls, T&as, in which this depart-
ment held that the commissioners court of Wichita County
did not have authority to lease the county hospital. This
ruling, we think, lends support to our view that such
authority, expressed or implied, for raising tinds for main-
taining a county hospital by means of selling policies of
insurance is not round in the laws of tMs state.
In view of the above authorities, you are, there-
fore, respectfully advised thatit as the opinion of this
epartment that the.~l~ontgomery
County Hospital Board of
iisnagers doesnot hav,eauthority to sell policies of lnsur-
ante for hospital service under a membership plan as a meens
of financing the county hospital affairs.
Our answer to your question No. 1 renders it un-
necessary for us to answer questions two and three of your
letter.
Yours very truly
ATTORNEY GEEERAL OF TEXAS
BY Wm. J. R. Ring
Assistant
WmlCrBT--pam
APPROVED JUL lh 1939
W. F. MOORE
FIRST ASSISTANT
ATTORNEY GENERAL OF TEXAS
APPROVED OPINION COMMITTEE
BY WRK, CHAIREAR