Untitled Texas Attorney General Opinion ( 1971 )

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Honorable Ned Grange? Opinion No. M-845
County Attorney
Travis County Courthouse Re: Whether an independent am-
Austin, Texas 78711 bulance service employed by
Travis County to provide am-
bulance service in Travis
County may ucle the public
streets of the City of ~Austin
without securing a franchine
.Dear Mr. &anger: from the City.
Your recent letter requesting the opinion of this office concerning
the referenced matter pose, the following question:
“May an independent ambulance service em-
ployed by Travis County to provide service in said
County use the public streets of the City of Austin
without securing a franchise from the City if it meets
all standards required by the City cave the securing
of a franchise? ‘3
Your letter also informs us that Ordinance No. 67051 1-I (part 1)
of the City of Austin provides as follows:
“No person shall engage in furnishing trans-
fer or ambulance service by operating or driving or
causing to be operated or driven an ambulance or
transfer vehicle upon the public streets of the city,
without firet having obtained a franchise in accord-
ance with the terms and provisions of this article. ”
The controlling question presented ia ,whether the county must ob-
tain a city franchise to operate its ambulance service from points outside
the city to hospitals or other medical points within the city, or can the city
deny that right or franchise to the county by refusal to grant the franchise.
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Honorable Ned Granger, page 2 (M-845)
As stated in 25 Texas Jurisprudence 599, Section 1, Franchises,
“To be a franchise the right must be of such a nature that without
express legislative authority, it cannot be exercised. ”
We do not interpret the City Ordinance to apply to the county or
State, acting in a governmental capacity, and if it were to be so in-
terpreted, we would be of the opinion that it could not validly require
these bodies to obtain a franchise for the right to use the public streets
of the City in carrying on their governmental duties within their respective
jurisdictions.
Counties are political subdivisions of the State and they act as
agencies for the administration of matters that are state concerns. They
are created by the sovereign will of the state for the purpose of discharg-
ing the state’s duties toward its inhabitants and to aid in the administration
of its governments.
“The powers conferred on them are more in
the nature of duties than privileges. As an integral
part of the state they are said to be endowed with a
certain amount of sovereignty . . . ” 15 Tex. Jur. 2d
233, Counties. Sec. 1.
Counties are by statute declared to be bodies corporate and politic.
Art. 1572, V. C. S. They are empowered to appoint agents for the accomp-
lishment of purposes.authorized by law and contracts or acts of such agents,
when performed on behalf of the county and within the scope of their author-
ity, effectually bind the county. 15 Tex. Jur. 2d 277, Counties, Sec. 48, Art.
1580, V. C. S.
The Legislature, by Article 4418f, Vernon’s Civil Statutes, has
granted authority to the Commissioners’ Court of any county
II . to appropriate and expend money from
the general revenues of its County for and in behalf
of public health and sanitation within its County. ‘I
This broad delegation of authority has been held by this office to
authorize a county
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Honorable Ned Granger, page 3 (M-845)
II
. to operate and maintain an ambulance
. .
service within the county if the Commissioners Court
determines that such service is in furtherance of
the public health and sanitation. This authority ex-
tends to entering into contracts with a private agency
to provide ambulance service, subject to the pro-
visions of Article III, Section 52, Texas Constitution. I’
Attorney General’s Opinion No. M-385 (1969. ) In
accord, Attorney General Opinion No. C-772 (1966. )
The home rule power of a city (such as Austin), with the right
to make its own charter so long as the provisions are not inconsistent
with the Constitution or general laws, was upheld in the case of City of
Amarillo v. Griggs Southwest Mortuary, Inc. , 406 S.W.2d 230 (Tex. Civ.
App. 1966,. error ref. , n. r. e. ) In that case, the city’s right to enact an
ordinance regulating vehicles, including traffic regulations, was recog-
nized, citing Article II, Section 5, Constitution of Texas, and Articles
1175, Sections 20 and 21, 4590b, Vernon’s Civil Statutes. The Amarillo
ordinance .did not. attempt to make the obtaining of a franchise a condition
precedent to travel upon the streets of the city, nor was such attempted
to be required of a county operated ambulance service.
Consequently, a different question is presented here, where the
question concerns whether obtaining a franchise can be made a condition
precedent to a county ambulance service’s right to use the public streets
of the city in addition to compliance with all reasonable safety or vehicular
traffic standards.
It has been held that,” in case of conflict between jurisdiction of a
city and a county, the one serving the superior right of the public must pre-
vail over the one serving a subordinate public purpose . . . ” McGuillin
on Municipal Corporations, Volume 2, Section 7. 08, pages 303-304, citing
Galveston v. Galveston County, 159 S.W.2d 976 (Tex. Civ. App. 1942, error
ref. ), holding that the city’s jurisdiction served a “subordinate right of
the public” and “must
” yield to the jurisdiction of the Commissioners’ Court
which in their instance serves a superior right of the public. ”
It is also recognized by the authorities, that,
‘1. . . if the power so to do has been conferred
on the municipality or a town or other political sub-
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Honorable Ned Granger, page 4 (M-845)
division of the state government, by the legiala-
ture . . . as upon home-rule cities, it may grant
a franchise or license to use the streets . . , The
use of the streets may be granted for . . . an am-
bulance service . . . e. g., between termini within
the municipal limits . . . ” McGuillin ~1 Municipal
Corporations, Vol. 12, Sec. 34. 14, pp. 45-46.
(Emphasis added. )
However, it appears well settled that,
“The statutory charter power of a munici-
pality to prohibit any ambulance or other motor
vehicle for hire from using its streets does not
carry with it the power to grant an exclusive right
or franchise to one engaged in a private business
to so use the streets for such purpose. ” McQuillin
on Municipal Corporations, Vol. 12, Sec. 34. 23, p.
66; Macon Ambulance Service, Inc. v. Snow Proper-
ties, ,Inc., 12,7 S. E. 2d-598 (Ga.Sup. 1962); see also
40, Tex. Jur. 2d 129, Mun. Corps. , Lea County Electric
Co-op, Inc. v. Plains, 373 S.W.2d 90 (Tex. Civ. App.
1963, error ref., n. r. e. )
The statutory authorization and right of the county to operate such
an ambulance service is not subordinate to any right of the city, and we
are of the opinion if there is any conflict between the respective juris-
diction of the county and the city, the city’s jurisdiction must yield to that
of the county at least to the extent of any conflict. You have advised that
the County does not seek the right to do intra-city business as such, but
seeks only the right to service county residents not living within the city.
We conclude that if the county ambulance service complies with all
traffic and safety regulations of the city, it has the right to make a pickup
out of the city and bring the patient to a hospital or the treatment facility
within the city. It has the right to drive over city streets in so transport-
ing the patient without having to obtain a city franchise. However, it would
not be permitted to make pickups within the city or make intra-city transfers
without such a franchise.
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Honorable Ned Granger, page 5 (M-845)
SUMMARY
Travis County may employ an ambulance service
to provide service to county residents residing outside
the City of Austin to transport such patients from points
outside the city to hospitals or other medical service
points within the city, thereby using the public streets of
the city without securing a city franchise, providing all
other traffic and safety standards of the city have been
met.
Yours very truly,
CRAWFORD C. MARTIN
Attorney General of Texas
NOLA WHITE
First Assistant
Prepared by Austin Bray
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen. Co-Chairman
Max Hamilton
2. T. Fortescue
Kenneth Nordquist
Jim Swearingen
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
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