Untitled Texas Attorney General Opinion ( 1954 )

. ”
.
Hon. William Caven Opinion No. S-126
County Attorney
Harrison County Re: Authority of a county to
Marshall, Texas leaab apace and facilities
from a pl'lvatehospital for
the purpose of hospitalizing
Dear Mr. Caven: county paupere.
You have requested an opinion of this office in
answer to the followli~gquestion:
"Ie the Commlaslonere'Court of Harrison
County authorized to enter into a lease agreement
with the Kahn Memorial kospltal, a private
corporation,situated in Harrison County, covering
such space and facilitiesas would be necessary
In the care of paupers, whe~reit Is shown that
hi%pltallzatlonIs needed."
You state that there le no County Hoapltal In
Harrison County a"ndthat Kahn Memorial Hospital Is chartered
as a charitable and benevolent non-profitablelnstltutltin
organized for the purpose of promoting the general welfare
of the surrounding cominunltyand furnishes hospital facll-
ltles to the general public.
Commlsslon&s' Court6 In this state are courts of
limited jurisdictionand have only such powers as are ex-
pressly or lmplledly conferred upon them by law. Chlldress
County v. State, 127 Tex. 343. 92 S.W.2d 1011 (193m; Van
Rosenberg v. Lc;is; 173 S~.W~.-5b8 (Tex.Clv,App.1915; 'error
ref.). Wheneve: r a Dower ie dxoresslv conferred,uoonthe Com-
missioners'Courts by statute everythingtiecessaryto make
lt.efflctualor that may be requisite to Bttaln lte eridis
As stated In Terre11 v, Sparks, 104 Tex. 191, 135
~%t3"'$~ 521 (1911): 'Yhe grant of an express power carries
with It iy necessary lmpllcatlonevery other power necessary
and proper to the execution of the power granted." See also
Moon v. Alred, 277 S.W. 787 (Tex.Civ.App.1925 error dlsm.);
Canales v. Lauahlj&, 147 Tex. 169, 214 S.w.2d 451 (1948).
Honi William Cayen, page 2 (S-126)
6.
Article 2351, Vernon's Civil Statutes; provides $n
part:
"Each CommleslonereCourt ehall:
"11. Provide for the support of paupers
. . ., reeldente of their county, who are
unable to support themaelves. By the term
resident a8 uaed hepeln, Is meant a peraon
who has been a bona fide Inhabitantof the
county not less than six montSfeand of the
State not leae than one year. ,
In deflnfng the word "support"as used In the above
statute the court in Monghon & Sleson v. Van Zandt County,
3 Wlllson 240 (Tex.Civ.App.1886)',said:
"'Support',a8 here used,~meanamore
than supplying them fiauperz7 with food and
clothing and a houae to stay In, It means
all that la neaeesary to bodily health.and
aomfort, and especiallydoes It 'Includeprol
per care, attention and treatment during
8lckne86."
It can har&ti bkedoubted,'particularlyIn view of
,therecent advgncementa1.nmedical aclence and equipment, that
hospltalPzaflonI.8often necessary for proper care, at,tention
and treatment during sl.ckneas.Therefore, unleas redtribted
by the Constitutionor Borneother statute, the Commlaslonere'
Court would have broad dlscretlonarypower! In regard to the
method and means to be used In furnlahinghospital care.to
quallfled paupers. Terre11 v. SPark8, supra.
A county 113prohlb,ltedfrom enterl,ngInto a joint
venture with any indlvtdual,aaaociatlonor oorporatlonwhat-
soever, Tex. Con&.,, Art. Ill, Sec.,52; and from making any
appropriationor donation, or in anywl~aeloaning It8 oredit
to any private aorporatlonor &aoclatlqn, Tex. Con&., Art.
XI, Sea. 3.
Therefore, a county oo,uldnot enter into an agree-
ment providing'for the joint operatlon of such hoepital, nor
could It purchase equipment for the u8e of euch private hoe
pltal. However, If a bona fide leaae was exeouted which
during Ita term placed exclusive domln+on and oontrol of the
leased premieee in the ~ommlesloners 1 Court such prohibitions
would not apply. See Attorney General Opinion No. V-173 (1947).
Hon. Willl~m Caven, page 3 (s-126)
In Attorney General Opinion No. O-4569 (1942), it
was held that a county could lease an entire hospital building
under the provisions of Article 4478, V.C.S., for the estab-
llehment of a county hospital. No reason Is apparent why the
oounty could not, If in the discretionof the court lese space
waB needed, likewise lease only a designated part of such
hoapltal building 80 long as the leaaed premises are under the
exclusive management and control of the county.
Article 4438, V.C.S., provides:
"If there 18 a regular establishedpublic
hoepltal In the county, the commlsalonerscourt
shall provide for sending the Indigent sick of
the county'to such hoebltal. . . . . . . .'. ."
In Wlllacy County v. Valley Baptist Hoepltal, 29
S.W.2d 456 (Tex.Clv.App.1930) It was held that the above
statute authorized the Commlseionere' Court to eehd the
indigent eiok to "publl&" hospltale In the county, and by
neceeaary lmpllcatlon,excludes any duty or authority to send
euch persona to private hospitala, or to public hospitals
without the county.
The Court further.recognized a dletinctionbetween
"paupers"and "Indigent elck" and a correrpondlngdistinction
In the authorFty to provide for each6 for, after the above
hold13 In regard to "Indigent sick; the court said:
"The provleion that'the,Commlssloners'
Court ehall support 'pauperswho are unable to
support thamselves~ is Inapplicablein this
oaBe, for the plain reason that thf facta do
not pnt Barbosa witpin that OlaaB.
This dietinotion between pauper0 and Indigent
persons ie fully dlscuesed and recognized in,Attorney
s;;;;~l Opinions O-2633 (1940), O-2633A (1941) and R-1538
.
It further becomea evident that the Leglalature did
not intend to limit the authority of the Commlaalonere~Court
to "provide for the support of paupera" by Article 4438 when
it la oonsldered that an originally paased thetieatatutea, now’
codified as Artiole 2351, V.C.S., and'Artiole44 a, V.C.S.,
were both contained In the same enaotment (Ch. 52 , General
Laws of Texae, 15th Legislature, 1876, page 51). The portion .
oodiiied aa Article 2351(U) appeara as Subaeotion 9 of Section
4 of euoh Act, while the portion oodlfled a8 Article 4438
. .
Hon. Wllllam Caven, page 4 (S-126) .
appears as Seation 21 of the same Act.
“It eeey evident that the Leglslatu$e bx the Me M
the word puw In Subaectlon 9~of Section 4, and by uee of
the worda ,lndlgent slok” in Section 21 of the Act recognized
and Intended that the rorde be given different rheanlnw, and
the mandatory duty plaoed on the Commlesioners’ Court to pro-
vide for the support of paupera by Section 4 iiae neither
moQl?led nor limited by the provisions ot:SBotion 21 which
only require the Court to ,“proviQe fdr the Indigent siok In
their oounty by sending such aiok persons to a hos ltal” in
oaee there In a regular det+bllshe& public hoepita P in the
county.
It Ie therefore the oi&nloh of thle bfftce that the
CouunUEionera~ Court of Harrison County rould be authorlred
to enter into a lease (rgreement uith the Xahn Memorial Hoe-
pital, a priirate oorgoration, altuated in Harrtaon County,
Sor rwh spaoe and raollltlea aa the Commlralon&bL Court
deema reasonably neoe$eary for the support,aqd hospitallsd-
tlon ‘o? quellfled, resident pauper6 o? the county. The
determination an to whether a lease oontraot meets the,test
of placing the exolusive oontrol and supervision of the leaeed
premises in the Comml6sloners l Court, Qr provides for a joint
venture or donation prohibited by 8eotlon 52 of ArtioJe III
or Seotion 3 ac Artfole XI o? the Conatitut$on OS Texan, would
depend on the teram of eaah partioular agreement.
A Commlssloners~ Court Ie authorized .
to leaee suoh apace and faoilltles from a
private hoepltal within the OoUntY am It
deem reabonably.neoeesary for the proper
er$;t ,horpltallzatlon of auallfled, :
r I PauDercq of the oounf;y, Art. .23!51,
3 11 V C 9 no long ae the leased
p%lrei &e’u& the exolualve oontrol
and rupervirlon .oi the oounty.
Hon. William Caven, page 5 (S-126)
APPROVED: Yours very truly,
J. C. Davis, Jr. JOHN BEN SHEPPERD
County Affaira Division
John Atchison
Reviewer
Robert S. Trottl
First Aselatant
John Ben Shepperd
Attorney General
EB:mj