Untitled Texas Attorney General Opinion ( 1971 )

March 10, 1971
Eon:Clifford P-11 Opinion No. H- 806
CauntyAttorney
Grayson-
County Courthouse Re: huthority of a city and/or
Sherman,Texas a'county to provide for
ambulance services,and
Dear Mr. Powell: related questions.
I
Your recent letter requesting the opinion of this
officeconcerningthe referenced matter poses the following
questions
3
"(1) Does the City of Sherman have the legal
and constitutionalprerogatibe to declare that the
city ambulance service as set out in the attached
ordinincetto be a franchise?
"(lA) If the City has such power, can
.,;.the franchise area be extended to pass
the City limits and into the area of the
City's extraterritorialjurisdiction?
"(2).If the City can declare sucl~ambulance
service4to be a franchise, is the County entitled
to contractwith other private ambulance services
(any or all of them) to service areas of the
county'sresponsibilityhot serviced by the City
of Sherman?
l(2?4 If the County is not so emp c wer ed
-. 'to make suc hprivate qmtracts, must the
County either participate financiallywith
the-City-ofSherman or operate its own
public ambulance service?
-3912-
Hon. cliffora Powell, page 2 (M-806)
~"(3) Is the County entitled to submit to
solicit bids from the private industryto provide
such services aad if so, to what extent must such
successfulbidder be able to furnish such services
(Le., must such a successfulprivate bidder have
ambulancesavailable in a central locationwithin
the county or could'suchanibulanoes be kept within
. points in the county and still satisfy the County's
.duty,if any, to provide such services)?*
Texas courts have held that, under the authority of
hrticles 1011,.10&S,ana 1175, Vernon's Civil'Statutes,the
State has delegatedto municipalitiesthe police,power'and the
comomitant right to -atact the health, safety, moxals, and
generalwelfare of their citisensbyregulations thatarereason-
able ahd necessary for that purpose, subject to limitationsim-
posed by the Constitutionand statutes enacted by the Lsgislature,
12 Tex.J'ur.2d409, CoastitutionalLaw; Sec. 64; 40 Tex.Jur.2d12,
Dunicipal-Corpoxaticas, Sea. 321; SeeI V. Dulte, 10 8.W.2d 694
(Tex.Com.App. 1928); Jmbardo v. DallaL, 124 Tax. Xr 73 S.W.2d
475 (1934)7 and citv of Dallas v..Smith, 130 Te%. 225, 107 S.W.
2a 872 (1937).
Article 4434, V&non's civil Statutes, prwiaes as
‘follows:
*The municipal authoritiesof toims and
cities, ana camissionets courts of the counties
wherein such tams and cities a?zesituated,amy
cm-operatewith 8ach other in msking such imprwe-
meats connected with 8aid towns, cit~es~,sadccunties
as said authoritiesand couHs may deem neew8sax-y to
imprwe the public healtb kna togmsmte efficient
sanitary rsgulations;and, by mutual agreement,
theylaayprwide forth OOM~UC~~~ Of 8aid ha-
prwemsnts and the paymsnttherefor.*
Relevant portions.of the ordinanosmentioned in your
first question alid attached to your letter (Ordinance Ro. 2793,
pa8Sed by.the City council of the city df shermn oa october 20,
1970) are a8 follows*
:
] -3913-
Hon. Clifford Powell, page 3 (M-806)
“SECTION 1. That there be and'there is here-
by created a service to the people to be called.the
Shermsn Ambulance Service, which service shall be
. Fire Department.
operated within the
.
%EcTicH 2. That.the said ambulance eervice
shall be available to the citizens of the City of
Sherman, in accordancewith the terms of this orai-
nance, jand to the citisens of,GravsonCountv, nro-
vided a rruitablecontract for service in the Countv
is annrwed bv the Citv Council of the Citv of Sherman
and the Countv CommissionersCourt.
i
: / ;.
l
. ...
. *’
.
*sDCTIcm'5. Tbe business of providing ambu-
lance service both'emsrgencyand transfer; is here .
1 tiavdeclared 'tobe a busin&s~effected (-1, Qith '
. the .publi.k'interest
and public utility and no.'person:,
8hall opkrate said business ‘withinthe corporateol:.- .?'
extraterritoriallimits of the Citv of Sherman, except
on a mission with a patient through the area, except'~
upon tbe issuance ofa certificate of public convey-
ati& and n8cessity by the City Council 0,f the City of
shemsn, mmss. . . .* (Emphasisadded.)
The City of Sherman is a home rule city; its &din&es must con-
form to this charter.
*Every 8wereignty has an inherent power to enact laws
for sanitary purposes and protection of the health of the public."
28 Tex.Jur.2d 9, Dealth, Sec. 1. .
.*Hunicipalitie8have the right, under the police power,
to protect the health; 8afety, morals, and general welfare of
their citisens by regulations that are -reasonableandnecessary
for the purpose. A city has comprehensivepower in this respect,
and the power is not narrowly circumscribedby'precedent." 40
Tex.Jur.2a 13.,Municipal Corporations,Sec. 322. I .
.
.*. ...
Hon. Clifford Pawell, page 4 (M-806)
"In the interest of public health a municipalitymay
regulate any occupation,trade, or profession . . .* 40 Tex.Ju.
2d 67, Municipal Corporations,Sec. 388.
However, "A municipal corporations'jurisdictionor
zls confined to the territory of its clitus,ana, unless ex-
empoweredby the constitutionor a statute it may not
exercise authoritybeyond its corporatelimits.* 39 Tex.Jur.2d
640, Municipal Corporations,Sec. 310. Ses, also, 55 A.L.R. 1182
and 14 A.L.R.Zd 103 (annotationsdealing with extension of police
power of municipal corporationbeyond territoriallimits).
In the case of Citv of ?unarillov. Griasa~Southwest
j4OrtUarV.Inc, 406 S.w.2d 230 (Te%.Ci~.App.1966, error ref.
n.r.e.), the c&t held that the city of Amarillo coda validly.
pass an oraim03 regulatingambulanoe 8&viceupon the streets
ofthatcity,andreguire, inter alia, the issuance of a city
permit ana of a cert.ificateof convenienceand necessity as a
prerequisitefooperating anaalhlanae 8erViCe.
InhnvOf the
foregoing,and in ansWer+OyaUr first
question,we are of the opinion that'the City.of Sherman has the
legal prerogativeto pa813the Ordinancp attached to your letter
(and partially quoted hereinabove),mbject to our answer, in
the following paragraph; to your querrtionlA, .
Qudstion lJ4involves the extraterritorialjurisdiction
of the City of Sherman, and the applicationof the terms of the
Grainancetothatarea. Pursuant to the terms of Article 4434,.
supoa, the prwieion8 of Section 2 of the Grdinance relating to
thefutni8hing of aabulance8ervicetOthe Citi8ens of GraySon
County, eubject to.the execution of a'con8ensualcon-act between
.the City of Sherman and ~rayson County, are legal.
However, the authorities cited in 39 Tex.Iur.Zd 640,
quoted supra, clearly show that the underscoredportion oe Sec-
tion 5 of the Ordiniuxe, :hezeimbove quoted, 18 void and of no
effect. .-~
Your second guestion involves the power of Grayeon
County to contract with private arbulance services to furnish
-391s
Eon. Clifford mwell, page 5 (M-806)
such services to t.hose,parts
of the County not encompassedwithin
the jurisdictionof the City of Sherman.
Article 441Sf, Vernon-8 Civil Statutes, prwides, in
part, that: ;
* . The CaamDissioners
Court of any County
shall have the authority to appropriateand expend
money from the general revenues of its County for
and in behalf of public health and sanitationwithin
its County."
: .
. ,A’ttorney &&eral'e Opinion No. C-772 (1966) helrtthat,
plrsuant to Article 441Sf, supia, a county could operate’and
msi+ain an ambulanck service; and that it could cooperatewith
a Mty within the county in the operation of that service.
Attortiey General's Opinion No. M-365 (1969)held that
to&s, cities,~'counties, and hospital districts have authority
.,,..to
expexid.mone'y to prwiae ambulance service.whenthere.hss been
'a determinationby such gwernmantal dgency that 8uch bervice will
be in fiktheranceof the public health and general welfare of its
citizens. That Opinion also held that such authority to provide
ambulance service extending to entering into contraotswith a
private agency to provide the service, subject to-the.prwisions
of Section 52 of Article III of the Constituticnof Texas.
See, .alro,Attorney General's Opinion No. C-759.(1966)
and NO. M-231 (1968).
In view of Arti&4418f, supra, and the foregoing
Cipinionsof the Attorney General, your second question is answered
in the affirmative. As this question has been answered in the af-
firmative, question 2A is not applicable.
your third question involves the applicabilityof
Article 2368a(2);Vernon's Civil Statutes. .That Article provides,
in pertinent part, as~followsr
*No county, acting through its Commissioners
Court, and no city in thisstate shall hereafter
make any contract calling for or reguiring the ex-
penditure of payment;o;ff,oThousand Dollars
..,,.-
‘3916,
Bon. Clifford Powell, page 6 (M-806)
($2,000.00) a more out of any fund or funds of any
city or county or subdivisionof any county aeating
or imposing an obligationor liability of any nature
or characterupon such county or any subdivisionof
such county, or upon such city, without first sub-
mitting such proposed contract to competitivebids
. Provided, that in case of public calamity.
;h&e it becomes necessary to act at once to ap-
propriatemoney to relieve the necessity of the
citizens,or to preserve the property of such county,
subdivision,or city, or when it is necessarv to
preserve or nrotect the nublic health of the citi-
sens of such countv or city . . ** thjs Drwisi.on
shall not annlv . . .-(rtnphasis added.1
In Construingthe underscoredportion of Article
2368a(2),supra, the Ccmmission of Appeals, in an opinion
adopted by the Supreme court of Texas, held that a county could
validly expend funds to protect the public health without the
necessity of requiring the competitivebids otherwiserequired
by that Article, .andthat the public health exception to the
competitivebid requirementwas operative at all times, whether
or not there was a "case of public calamity'. )ioffmanv. Citv
of Mt. Pleasant, 126 Tex. 632, 69 S.W.Z# 193 (1936).
You are advised, in answer to that portion of your
third question relating to the necessity of competitivebidding
for ambulance services, that it is the opinion of this office
that such services are encompassedwithin the purview of the
public health exception to Article .2368a(2),supra, and are,
therefore, services~for which the Grayson County Commissioners
Court may contractwithout the necessity of receiving competi-
tive bids therefor.
As for that portion of your third question relating
to the extent to which a successfulbidder must be able to
furnish such services,we have concluded that this is a factual
determinationupon which this office cannot pass,.and that such
determinationis properly left to the judgment and discretion
of the Grayson County Can\miSSionerSCourt.
-3917-
Bon. Clifford Powell,,page 7 (M-806)
SUMMARY
(1) The City of Sherman, subject to the pro-
visions of its Home Rule Charter, has the legal
prerogativeto estabiish,by ordinance,a municipal
ambulance service within its fire department,pur-
suant to its constitutionalpowers to prwide for
'and protect the public health of its citizens. Such
ordinance may also provide that no person shell oper-
ate an ambulance service within the municipalbounda-
ries, except on missions with a patient through that
area, unless such person first obtains a certificate
of public coxdnience and necessity'from'themunici- :
pa1ity.
(2) Pursuant to Article 4434. Vernon's Civil
Statutes, a city and a county *y coopsrate and
jointly contract to establish a city-countyambu-
lance service; however, the operating area of a
city ambulance service cannot be extratarritorially
exteridedbeyond the boundaries of a city without the
consent of the county or other governing body affected.
(3) Pursuant to Article 4418f, Vernon's Civil
S$etutes, a county is entitled to establish a county
ambulance service, for all or part of a county, and
td contract with private ambulance services to psr-
form such services, provided such expendituresto,
private parties a0 not contraveneSection 52 of
Article III of the Constitutionof Texas.
(4) Pursuant to the public health exceptiq of
Article 236Sa(2),Vernon's Civil Statutes,.a county
is not required to follow competitivebidding pro-
cedures in establishinga county ambulance service.
Very truly yours,
CRAWFORD C. MARTIN
Attorney General of Texas
,+y:
NOLA WHITE
First Assistant
-3918-
Eon. Clifford Powell, page 8 (M-806)
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sam Jones
Max Flusthe
8. J. Aronson
David Longoria
&BADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
.
.
-3919-