Untitled Texas Attorney General Opinion ( 1973 )

Honorable Henry F. Cuillet Opinion No. H-16
County Attorney
Andrew8 County Re: Whether the Commissioners
Andrews, Texas Court of Andrews County may
use funds authorized by a
bond election to build a med-
ical clinic on hospital grounds
owned by the County for the
purpose of leasing space or
spaces to a doctor or doctors
engaged in the private prac-
tice of medicine on terms
satisfactory to the Commis-
sioners Court and related
Dear Mr. Ciuillet: questions ?
On November 15, 1972, you requested the opinion of this office
covering two questions:
“(1) May the Commissioners Court of Andrew8
County use funds authorized by a bond election to
build a medical clinic on hospital grounds owned by
the County for the purpose of leasing a space or
spaces to a doctor or doctors engaged in the private
practice of medicine on terms satisfactory to the
Commissioners Court?”
“(‘2) May the Commissioners Court of Andrews
County purchase a medical clinic building which is
owned by local private doctors with money obtained
from a bond election and lease the said medical clinic
building so purchased, back to the same doctors on
terms satisfactory to the Commissioners Court?”
Your letter advised that:
“In connection with the foregoing, the Commis -
sioners Court of Andrew8 County, Texas, authorized
P. 76
Honorable Henry F. Cuillet, page 2(H-16)
an election for the issuance of bonds in the principal
amount of $2,750,000.00 ‘for the purpose of pro-
viding funds for enlarging and equipping of the County
hospital and for all other necessary permanent im-
provements in connection therewith. ’ The proposi-
tion for the bond election was submitted to the voters
of Andrew8 County on October 21, 1972, and the
same carried by a vote of 1,086 for to 721
against. . . .”
On February 6, 1973, the Commissioners Court of Andrews County
submitted the following additional questions:
“May the Commissioners Court of Andrew8
County use $136.000.00 of the bond funds referred
to in the original opinion (sic) to purchase facilities
now being used as a doctors clinic, which facility
is in an internal unit of the hospital building with
open passage between the facility and which for all
purposes is one unit?
“Secondly, may the Commissioners Court, after
additions to this unit to be purchased, lease space in
the building purchased together with additions to the
building; to medical doctors currently officing in the
building, as well as additional doctors who may de -
sire to office in such building, and additions added
thereto? ”
We have been made aware of the extreme importance of
these questions to the people of Andrew8 County and have given them a
great deal of consideration. Further, we note with due respect the opinion
of the Commissioners Court that the presence of doctor’s offices in the
hospital facility itself would be in the public interest.
Section 18 of Article 5 of the Constitution of Texas provides:
II . . . the County Commissioners so chosen,
with the County Judge as presiding officer; shall
compose the County Commissioners Court, which
shall exercise such powers,and jurisdiction 0.ve.r a!1
county business, as is conferred by this Constitution
P. 77
Honorable Henry F. Cuillet, page 3 (H-16)
and the laws of the State, or as may be hereafter
prescribed. ‘I (emphasis added)
In Can&es v. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (1948) the
Supreme Court of Texas said:
“The Constitution does not confer on the
commissioners courts ‘general authority over the
county business’ and such courts can exercise
only such powers as the Constitution itself or the
statutes have ‘specifically conferred upon them’
. . while the commissioners courts have a
broad discretion in exercising powers expressly
conferred upon them, nevertheless the legal basis
for any action by any such- court must be ulti-
mgtely found in the Constitution or the statutes. ”
Several statutes authorize counties of various classifications to lease
county owned hospitals but we have diligently searched for one authorizing
counties to lease a portion of a county hospital to private practitioners for
use as private offices, even though such leasing be in the general public
interest. Our search has not revealed any such specific authority.
Can it, be tb+t the general authority to lease a county .owned hospital
under such terms and conditions as may be satisfactory to the Commis-
sioners Court includes the authority to lease a portion of such hospital to
private practitioners for use as private offices? We c~onclude that the
answer is “No” .
The two statutes which apply directly to Andrew8 County appear .to be
Artkles 449411 and 44941, Vernon’s Texas Civil Statutes. Article 4494h
reads., in part:
“Any county in this State having a population
of not less than five thousand (5,000) and not more
than ten thousand, three hundred and ninety
(10,390) inhabitants according tomthe last preceding
Federal Census, s-11 have authority to lease any
county hospital belonging to said county to be
operated by the lessee of same under such terms
and conditions as may be satisfactory to the
Commissioners Court of said county and the
lessee . . .‘I
P. 78
Honorable Henry F. Guillet, page 4 (H-16)
Article 44941 applicable to all counties provides in part:
Section 1. “Any county in this State having
a county hospital which is operated by said county,
may, and such county is hereby authorized to
lease such hospital, provided the Commissioners
Court of said county shall find and determine by
an order entered in the minutes of said Court
that it is to the best interest of said county to
lease such hospital . . . .‘I
Logically, we can only construe these statutes to mean that a
Commissioners Court has authority to lease a hospital, or so much of it
as ~would constitute a complete hospital, to be-operated by the lessee as
a hospit& for the people of the county. The phraseology of the statutes
is such that it is extremely difficult to read into them any legislative
intent inconsistent
_ __. . with.the simple granting of power to lease hospital
__.
property for use as a hospital. “Under such terms and conditions as may
be satisfactory to the Commissioners Court” still must be read together
with the basic purpose to which the language relates, i.e. , leasing and
operating a hospital.
While other statutes ~authorizing other classifications of counties
are more specific, we’believe all of them express the shame general intent.
Compare Articles 4494a, 4494b. 4494c, 4494k and 4494m, Vernon’s
Texas Civil Statutes. Also see Articles 4494e, and 4494d, 4494f, 4494g
and 4494j, Vernon’s Texas Civil Statutes.
Finding no statutory~orconstitutional authority for the Commissioners
Court of Andrew8 County to lease any portion of county hospital space for
the use of private .physicians as private offices ; it is our opinion that it
may not do so. This does not mean, of course, that the contemplated
clinic cannot be built or purchased as a hospital addition with the bond
funds if it is to be used as an enlargement of the hospital or a necessary
permanent improvement thereto.
Also, nothing we have said in this opinion is intended to challenge
or affect the validity of any bonds which may have been issued pursuant
to the bond election referred to. Our opinion is limited solely to the
leasing of county hospital property for use as private offices for private
physicians.
P.,79
Honorable Henry F. Guillet, page 5 (H-16)
The foregoing makes it unnecessary for us to decide whether the
proposed action would violate Section 52 of Article 3 of the Constitution
of Texas.
,I’-
-SUMMARY -
A county hospital may be enlarged, or
permanent improvements may be made in connec-
tion therewith, as the best interests of the county
dictate. Although the Commissioners Court has
authority to lease a county hospital to be used as
a hospital, it is our opinion that the Legislature
and the Constitution have not granted commis-
sioners courts and particularly the Commis-
sioners Court of Andrews County, authority to
lease portions of the county hospital for use as
private medical offices. In the absence of such a
grant of authority, such leasing is unauthorized by
law.
Very truly yours,
Attorney General of Texas
APPROVED:
y&y-J?@
DAVID M. KENDALL, Chairman
Opinion Committee
P. 80