Untitled Texas Attorney General Opinion ( 1952 )

PRICE DANIEL
ATTORNEYGENERA,.
May 16, 1952
Hon. Hal H. Booko,ut Opinion No. v-1457
County Attorney
Navarro County Re: Authority of the Commis-
Corsicana, Texas sioners ' Court to lease
or sell a hospital build-
ing to a non-profit pri-
vate organization for
operation as an old folks'
,, ‘, Dear Sir: home.
You have requested an opinion of this of-
fice in which you submit the following facts:
"The Navarro County Memorial Hospital
is under construction and will be ready for
use as a County Hospital In July, 1952.
When the new hospital is completed and is
occupied, Navarro County will no longer have
need for the old Physicians' & Surgeons'
Hospital building and premises.
"The old P & S Hospital has been
operated as a county institution and as
a hospital for about thirty years. The
building is old and in much need of repairs.
Navarro County has no need for this build-
ing and premises in that all equipment and
furnishings now in the old hospital build-
ing will be moved to the new hospital, and
the old hospital will be entirely abandoned.
"The Commissioners' Court appointed a
committee of respectable citizens to inves-
tigate the need for a home for the needy,
aged and senile, and the suitability of the
P & S Hospital property for such purposes.
The committee, after a thorough investiga-
tion, reported that there existed in this
county a great need for such an institution
and recommended the use of the old hospital
property for such purposes.
"The county, because of llmited
Hon. Hal H. Booko,ut, page 2 (v-1457)
finances, cannot operate such an old
folks' home, and further, county opera-
tion would result In the loss of Old Age
Assistance checks to those who might de-
sire to take advantage of such a rest
home.
"A group of responsible interested
citizens met and decided to ask the coun-
ty to sell at a nominal figure or to lease
for a small monthly rental the old hospital
premises, the deed or lease to be made to
Trustees of the Navarro County Old Folks'
Home, a non-profitable organization to be
organized and to be governed by Trustees.
The control of the home will be vested In
citizens chosen from the county at large,
and these Trustees may be appointed by'.
the Commissioners' Court if so desired.
The institution will be operated and main-,
tained at no expense to the county and as
a non-profit organization.
"The old folks who will live In the
home will pay a nominal sum for their ac-
comodations when they are,financially able
to' do so, but none will, be refu,sed admls-
sion solely because of lack of funds.
"Either a long term lease ora pur-
chase at private sale at a reasonable-sum
will be acceptable to those who are will-
ing to underyrite the project. If a lease
is made, a clause authorizing the,Commis-
sioners' Court to terminate the lease if
the home is not operated fairly and in com-
pliance with its requirements will be ac-
ceptable."
Then you ask:
"1 . Whether or not the Commissioners
Court is empowered to call an election, to
ascertain whether or not the people of Navar-
ro County desire,the old hospital building
to be used and operated crlvately as an old
folks' home.
,
Hon. Hal H. Bookout, page 3 (V-1457)
"2 . Whether or not the Commissioners
Court of Navarro County can lease the hos-
pital properties for a nominal considera-
tion and restrict the use to an old folks'
home to be operated privately on a profit
or non-profit basis.
“3 . Can property, under Art. 1577,
be sold with restrictions or stipulations
in the order of sale that the property be
used afte: the sale for only philanthropic
purposes.
The decisions of the Texas courts have re-
peatedly held that the commissioners' court is a
court of limited jurisdiction and has only such pow-
ers as are conferred upon it by the statutes and
Constitution of this State, either by express terms
or by necessary implication.
State, 127 Tex. 343, 92 S.W.2 ; Von Rosen-
173 S.W. 508 (Tex. Civ. App.1915,
Hall, 280 S.W. 289r(Tex. Civ.
APP. 1925).
We know of no statute authorizing a county
to call an election for such a purpose. Neither is
there a law which authorizes a county to lease its
hospital building that is no longer used as a hospital.
Although Section 2 of Article 1577, V.C.S., authorizes
certain counties to lease their property, It has no ap-
plication to Navar o County because of the population
brackets fixed the ein. In Attorney General's Opinion
v-1085 (1950), it E as held that a county which did not
come within Section 2 of Article 1577 had no authority
to lease its property. Therefore, both of your first
two questions are answered in the negative.
Article 1577, V.C.S., provides in part:
"Section .l. The Commissioners Court '
may, by an order to be entered on its minutes,
appoint a commissioner to sell and dispose
of any real estate of the county at public
auction. The deed of such commissioner,
made in conformity to such order for and
in behalf of the county, duly acknowledged
and proven and recorded shall be sufficient
to convey to the purchasers all the right,
title, and interest and estate which the
Hon. Hal II. Hookout, page 4 (V-1457)
county may have in and to the premises to
he conveyed. Nothing contained in this
article shall authorize any Commissioners
Court to dispose of any lands given, do-
nated or granted to such county for the
purpose of education in any other manner
than shall be directed by law."
The above statute does not authorize a
private sale of property by a county, but requires
that it be made at public auction. Ferguson v. Hal-
m, 47 Tex. 421 (1877). Moreover, in Llano Count
v. Johnson, 29 S.W. 56 (Tex. Civ. App.
stated:
"It is next contended that the order
of the commissioners' court of Llano county,
authorizing the land to be sold, and the sale
thereof to Johnson, was unauthorized, because
it was.'virtually a donation and disposition of
'the lands of the co,unty for purposes not au-
thorized by law; and that the order requiring
the purchaser to erect suitable buildings
thereon, and to use the same for 10 years
for educational purposes, was imposing and,
attaching to the purchase of the property
illegal conditions, which were calculated
to deter bidders, and to defeat the policy of
the law requiring counties to only dispose
of their real estate at public auction to
the highest and best bidder therefor. . . .
The commissioners' court of the county oc-
cupy towards its property a trust relation,
and they can only dispose .of its property
in the manner required by law, and for pur-
poses that are in keeping with the trust they
represent. They have no right to donate the
county property or dispose of it so as to
virtually amount to a donation. It is a
trust estate, and principles of equity will
not permit them to be liberal and generous
with property they do not own, and which
they hold in trust for public purposes. The
order of the court in question, and the deed
exec,uted to Johnson, show that the property
was sold for a nominal sum, and that it was,
in effect, donated to the purchaser for edu-
cational purposes. This was clearly unau-
thorized. The property, so the deed recites,
Hon. Hal H. Bookout, page 5 (V-1457)
was sold under the semblance of a p,ublic
sale, to the highest bidder; but, being
sold under the order set out, that required
it to he sold and used for educational pur-
poses, was well calculated to deter and hinder
a sale of the property for a fair price; and
the conclusion is irresistible that;the con-
sideration for the sale was not the nominal
sum mentioned in the deed, but was the use
of the property for educational purposes.
. . .11
In view of the foregoing, it is our opin-
ion that the county cannot sell property with the
restriction that it be used only for philanthropic
purposes.
If sale at public a,uction without restric-
tions will not accomplish the purpose desired by the
co,unty, it is suggested that this matter be called to
the attention of the Legislature to the end that ap-
propriate legislation may be enacted authorizlng the
leasing of the property In question.
SUMMARY
There is no law authorizing a county
to call an election to determine if a county-
owned building formerly used as a hospital
should be leased. Neither is there a law
which authorizes Navarro County to lease
such building. Section 1 of Article.:1577,
V.C.S., req,uires that co,unty real estate
which is to be disposed of must he sold at
public auction and without restrictions.
Ferguson v. Halsell, 47 Tex. 421 (1877);
Llano County v. Johnson, 29 S.W. 56 (Tex.
Civ. App. 1895). An act of the Legislature
would be required in order to authorize the
leasing of the property in question.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
Attorney General
Mary K. Wall
Reviewing Assistant
Charles D. Mathews BY&&&&
First Assistant
Assistant
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