Untitled Texas Attorney General Opinion ( 1989 )

.
June 27, 1989
Honorable Joe Lucas Opinion No. JM-1064
El Paso County Attorney
City-County Building, #201 Re: Authority of a commis-
El Paso, Texas 79901 sioners court to remove a
member of the' board of
managers of a hospital dis-
trict created under article
4494n, V.T.C.S. (RQ-1622)
Dear Mr. Lucas:
You ask two questions regarding the removal of a member
of the board of managers of a county hospital district.
First you ask whether the County Commissioners Court of El
Paso County has the authority to remove, without cause, a
member of the Board of Managers of El Paso County Hospital
District and replace him with another appointee.
You tell us that the El Paso County Hospital District
[hereinafter the district] was created pursuant to article
4494n, V.T.C.S. Section 5 of that article provides for the
appointment of a board of managers as follows:
The Commissioners Court shall aonoint a
Board of Hospital Managers, consisting of not
less than five (5) nor more than seven (7)
members, who shall serve for a term of two (2)
years, with overlapping terms if desired, and
with initial appointments to terms of office
arranged accordingly, without pay, and whose
duties shall be to manage, control and
administer the hospital or hospital system of
the Hospital District. (Emphasis added.)
V.T.C.S. art. 4494n, 5 5. Neither that section nor any
other section of article 4494n provides for the removal of
managers.
In answering your question, we must first decide
whether the managers of county hospital districts are
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Honorable Joe Lucas - Page 2 (JM-1064)
officers or employees. In Attorney General Opinion M-409
(1969), this office found that a member of a board of
managers of a hospital district created under article 4494n,
V.T.C.S., holds a position of honor and trust under article
XVI, section 33, of the Texas Constitution. That opinion
stopped short of declaring that the position is an office,
because that conclusion was not required for the purposes of
the opinion. We have considered the powers vested in the
board of managers and have concluded that such managers are
public officers.
In the earlier opinion, this office relied on the
classic definition of l'office,*l which distinguishes an
office from an employment in that the former involves the
exercise of any sovereign function of government for the
benefit of the public largely independent of the control of
others. Attorney General Opinion M-409 (1969) at 2; see
f&g Aldine IndeD. School Dist. v. Standley 280 S.W.2d 578
(Tex. 1955); Dunbar v. Brazoria'Countv, 224'S.W.2d 73% (Tex.
Civ. App. - Galveston 1949, writ ref'd).
When article 4494n was originally enacted, the
following provision prevented the board from functioning
"largely independent of the control of others":
The Board shall be responsible to the
Commissioners Court for the operation of the
hospital, and individual members may be
removed for cause.
Acts 1953, 53d Leg., ch. 266, 5 4, at 692-693.
The deletion of that language in 1955 reflects a legis-
lative intent to make the board more independent of the
commissioners court and to change membership on the board
from one of agency or employment to that of an office. See
Acts 1955, 54th Leg., ch. 257, g 5, at 719. That interpre-
tation is reinforced by the emergency clause in the bill,
which based the emergency on "[t]he fact that the present
laws do not provide sufficient details as to the powers,
duties, responsibilities and methods of creation and of
operation of Hospital Boards . . . .I* Id. 5 17, at 722.
The county commissioners court retains some control
over the business of the district, for example, by approving
its budget and intergovernmental contracts and by pre-
scribing purchasing and accounting procedures. V.T.C.S.
art. 4494n, §§ 5, 6, 8. Section 5 of the act, without
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making the board responsible to the commissioners court,
authorizes the board of managers to manage, control and
administer the hospital or hospital system. That section
also authorizes the board to sue and be sued, appoint
hospital staff, hire an administrator, commission peace
officers, and keep its own seal. Additionally, section 9
authorizes the district to exercise the power of eminent
domain.
For these reasons, we believe that the board of
managers exercises sovereign functions of government largely
independent of the control of others, and that the managers
are public officers. See Arseneau v. Tarrant Countv HOSD.
Dist., 408 S.W.2d 802 (Tex. Civ. App. - Fort Worth 1966,
writ ref'd n.r.e.) (public hospital is performing govern-
mental function in providing medical care to indigents).
Having determined that the district's managers are
public officers, we can answer your first question. It has
long been established in Texas law that where an officer has
a set term, as opposed to serving at the pleasure of the
appointing authority, the appointee is not subject to
removal at the will of the appointing authority. Dorenfield
v. State, 73 S.W.2d 83 (Tex. 1934); Rovston v. Griffin, 42
Tex. 566 (1875). As noted above, managers of county
hospital districts established under article 4494n,
V.T.C.S., are appointed for a term of two years. APPlYiw
the rule set out in Rovston, the managers are not subject to
removal without cause by the commissioners court which
appoints them. V.T.C.S. art. 4494n, § 5.
In the alternative, you ask whether a member of the
Board of Managers of the El Paso County Hospital District is
a "county officer" and subject to removal under the pro-
visions of article V, section 24, of the Texas Constitution
and section 87.011 et sea. of the Local Government Code.
Article V, section 24, of the Texas Constitution reads
as follows:
County Judges, county attorneys, clerks of
the District and County Courts, justices of
the peace, constables, and other county
officers, may be removed by the Judges of the
District Courts for incompetency, official
misconduct, habitual drunkenness, or
other causes defined by law, upon the cause
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Honorable Joe Lucas - Page 4 (JM-1064)
therefor being set forth in writing and the
finding of its truth by a jury.
There are several factors that lead us to believe that
county hospital district managers are included in this
constitutional provision as "other county officers."
First, the hospital district is generally defined in
terns of the county. The constitutional provision
authorizing the creation of these districts authorizes the
creation of "county-wide Hospital Districts." Tex . Const.
art. IX, 5 4. The county electorate authorizes the creation
of the district. The district's tax base is identical to
that of the county. The boundaries of the district are the
same as those of the county, thus limiting the geographical
area in which the board of managers fulfills its govern-
mental purpose of providing medical care to the indigent.
See id .; V.T.C.S. art. 4494n, § 1.
Second, persons holding other positions that are
denominated as *'district" positions have been found to be
"other county officers" within the terms of the constitu-
tional provision. See Enaleman Land Co. v. Donna Irriaation
Dist. No. 1, 209 S.W. 428 (Tex. Civ. App. - San Antonio
1919, writ ref'd) (director of irrigation district is county
officer within removal provision); Hendericks v. State, 49
S.W. 705 (Tex. Civ. App. 1899, no writ) (school district
trustee is county officer within removal provision).
Finally, as noted above, the county commissioners court
retains some control over the affairs of the district. In
addition to appointing the board of managers, V.T.C.S. art.
4494n, 5 5, the county commissioners court has the duty to
levy a tax for the district. Id. 5 2. The commissioners
court also may prescribe purchasing and accounting proce-
dures, id. 5 6, and it must approve the district's budget.
Id. 5 8. While at one time the board of managers was
completely responsible to the commissioners court for the
operation of the hospital district, the legislature has
retained these significant ties between the district and the
county.
We conclude that members of a board of managers of a
county hospital district established under article 4494n,
V.T.C.S., are county officers, and, as such, they are
subject to removal under the terms of article V, section 24,
of the Texas Constitution and chapter 87 of the Local
Government Code.
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Honorable Joe Lucas - Page 5 (JM-1064)
SUMMARY
Members of a board of managers of a county
hospital district established under article
4494n, V.T.C.S., are county officers and
subject to removal under the terms of article
V, section 24, of the Texas Constitution and
chapter 87 of the Local Government Code.
JIM MhTTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
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