Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
August 17, 1983
JIM MA rTOX
Attorney General
Supreme Court Building Honorable Harold R. Schmidt Opinion No. JM-65
P. 0. BOX 12546 Mason County Attorney
Austin. TX. 78711-2548 Courthouse Re: Whether a county may con-
5121475-2501 Mason, Texas 76856 tribute funds to a privately
Telex 910/674-1367
owned hospital
Telecopier 5121475.0266
Dear Mr. Schmidt:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709 You have asked if Mason County may provide funds for the general
2141742-6944
operating expenses of a hospital that is owned and operated by a
private, non-profit corporation. You have also inquired about the
4624 Alberta Ave.. Suite 160 extent and manner in which the county may compensate a privately owned
El Paso. TX. 79905-2793 hospital for the care of indigents and for services associated with
9151533~3484 the operation of a volunteer county ambulance program. Mason County
does not have a county hospital, a hospital authority, or a hospital
1220 Dallas Ave.. Suite 202 district. We believe that the county may not make a donation or gift
Houston, TX. 77002-6986 of its funds to a privately owned hospital’s general operating
7131650-0666 expenses, but the county may contract with a hospital to perform
services of functions that the county is authorized to provide.
806 Broadway, Suite 312
hbbock. TX. 79401-3479 It is well established that a county may not make a contribution
8061747-5238 of public funds to a facility owned and operated or controlled by a
private, non-profit corporation. Tex. Const. art. III. 952; art. XI,
§3. See Attorney General Opinions NW-329 (1981); MW-36 (1979);
4309 N. Tenth. Suite B
H-1189, H-1123 (1978); H-520 (1975); H-397 (1974); M-661 (1970);
McAllan, TX. 76501-1685
5121662-4547
WW-630 (1959). However, it also is well established that a county may
contract with private corporations and others to carry out its
statutory duties to provide for public or governmental purposes. See
200 Main Plaza, Suite 400 Attorney General Opinions H-1123 (1978); H-912 (1976); H-675 (1975);
San Anlonio. TX. 78205-2797
H-127 (1973); M-843 (1971); M-605 (1970); C-334, C-246 (1964).
512/225-4191
A county commissioners court has only the powers that the
A” Equal OpportunityI constitution and statutes have conferred on it. Therefore. the
Affirmative Action Employer
authority of the commissioners court to make a contract on the
county’s behalf is strictly limited to the power conferred either
expressly or by reasonable implication by the constitution and
statutes. See Tex. Const. art. V, §18; Canales v. Laughlin, 214
S.W.2d 451,453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085
(Tex. 1941); Attorney General Opinions MW-329 (1981); H-1280 (1978);
H-912 (1976); H-367 (1974); C-772 (1966); WW-630 (1959); V-173 (1947).
p. 279
Honorable Harold R. Schmidt - Page 2 (JM-65)
Since a county may contract with a private corporation to perform
services that the county is authorized to perform itself, a primary
issue 1s whether the county has authority to perform the specific
service. Without that authority, an expenditure by the county
constitutes a donation of the county's funds in violation of the
constitution. See Attorney General Opinions MW-329 (1981); H-1123
(197%); H-127 (1973). You mention the responsibility of the county to
provide for the care of indigents and services associated with an
ambulance program. It is well established that the county must
provide necessary medical care for its indigents. V.T.C.S. art. 2351,
$11; V.T.C.S. art. 443%; Attorney General Opinion MW-33 (1979). We
believe that it also is well established that a county may provide
ambulance service pursuant to its power regarding public health. Se*
V.T.C.S. art. 4418f; Attorney General Opinions H-976 (1977); M-845
(1971); M-806 (1971); M-385 (1969). See also V.T.C.S. art. 2372t.
Article 4418f. V.T.C.S., grants to the commissioners court of any
county "the authority to appropriate and expend money from the general
revenues of its County for and in behalf of public health and
sanitation within its County." The authority conferred by that
statute on the commissioners court to expend the county's general
revenues for public health and sanitation is general in its scope.
Since article 4418f provides no detailed direction to guide the
commissioners court in the exercise of this power, it must be guided
largely by its sound discretion. Prior opinions of this office
interpreting article 4418f have approved funding by the county of
numerous services that the commissioners courts have determined would
aid the sick or deal with public health or sanitation problems,
including ambulance services, county health units, public health
clinics, outpatient medical treatment, preventive units, garbage
disposal, storm sewer connection to a county hospital, and control of
noxious aquatic weed. Attorney General Opinions H-1280 (197%); H-912
(1976); M-806 (1971); M-385 (1969); C-772 (1966); O-5670 (1944);
0-2580-A (1940). The factual determination of specific conditions
that create a threat to public health and sanitation within the
meaning of article 4418f should be made by the commissioners court.
When the commissioners court is granted a power or charged with a
duty, it has implied authority to exercise broad discretion to
accomplish the intended purpose. Anderson v. Wood, supra; Madison
County v. Wallace, 15 S.W.2d 535, 537 (Tex. 1929). The terms and
conditions of a contract, such as whether a contract should provide
for payment of a specified amount or reimbursement of documented
expenses. can be determined by the commissioners court in light of the
facts known to it.
However, it is not our opinion that the authority of a county is
unbridled with respect to the terms of a contract to provide for
indigents or public health. The extent of the county's expenditure
p. 280
Honorable Harold R. Schmidt - Page 3 (JM-65)
under such an agreement cannot contravene the limitations of article
III, section 52 of the Texas Constitution. The commissioners court
may not expend county funds in a manner that amounts to a virtual
donation. In return for its expenditure, the county must receive an
adequate consideration. such as a oublic benefit or a service the
co&y has a duty to provide. See'Sullivan v. Andrews County, 517
S.W.2d 410, 413 (Tex. Cl". App. 71 Paso 1974, writ ref'd n.r.e.);
Llano County v. Knowles, 29 S.W. 549, 553 (Tex. Civ. App. 1895, no
writ). We believe that such a contract should indicate clearly that a
public purpose is being served.
SUMMARY
A county may not donate county funds for the
operating expense of a privately owned and
operated hospital but may contract with the
hospital to perform services that the county is
authorized to provide. The commissioners court
has discretionary authority to determine the terms
and conditions for such a contract that provide
for adequate consideration to the county and do
not contravene the limitations of article III,
section 52 of the Texas Constitution.
J-k
I
Very truly your ,
.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton
p. 281