Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX JI:LY 22, 1985
Attorney General
Supreme Court Building Honorable William A. Ewert, Jr. Opinion No. JM-335
P. 0. Box 12546 Kleberg County Attorney
Austin, TX. 76711. 2546 P. 0. Box 1411 Re: Whether a county must comply
5121475.2501 Kingsville, Texas '78363 with the public auction require-
Telex 9101674-1367
Teleccnier 512/475-0266
ments of article 44941, V.T.C.S.,
in order to sell a county hos-
pital in accordance with articles
714 Jackson, Suite 700 44941 and 4437e-2, V.T.C.S.
Dallas. TX. 75202-4506
2141742.6944
Dear Mr. Ewert:
4624 Alberta Ave., SUite 160 You have inquired about the procedures Kleberg County must follow
El Paso. TX. 79905.2793 in selling its county hospital. You have explained that Kleberg
9151533.3464 County has complied with the provisions of a statute that authorizes a
county to sell a hospital after notice by publication, a public
1001 Texas, Suite 700
hearing and, in tt.is instance, a referendum election approving the
Houston, TX. 77002-3111 sale. V.T.C.S. art. 44941. The proposed sale you have described also
7131223-5666 comes within the scope of a statute that authorizes an issuer of
hospital revenue bonds to sell s "hospital project" to a non-profit
corporation. V.T.C.S. art. 4437e-2, P5. Your question is whether
606 Broadway, Suite 312
Lubbock, TX. 79401.3479
Kleberg County most also comply with article 1577, V.T.C.S., which
6061747-5236 authorizes counties to sell real estate by public auction.
In our opinion article 1577 is inapplicable when a county sells a
4304 N. Tenth, Suite B
hospital pursuant to article 44941 or article 4437e-2. Because
McAllen, TX. 76501-1665
5121662-4547
Kleberg County has fulfilled the requirements of both article 44941
and article 4437e-i.,we do not consider whether a county must comply
with article 4494;: when it sells a hospital pursuant to article
200 Main Plaza, Suite 400 4437e-2.
San Antonio, TX. 76205-2797
5121225.4191
The source of your concern is the statement in several Texas
cases that a county must comply with article 1577 in order to sell
An Equal Opportunity/ real estate. --
See, e&,Ferguson v. Halsell, 47 Tex. 421. 422 (1877);
Affirmative Action Employer Hardin County v. Nona Mills Co., 112 S.W. 822 (Tex. Civ. App. 1908, no
writ). Such state&ts must be read in their historical context. The
legal basis for any action by a county must be found in the Texas
Constitution or st~wtes. Canales v. Laughlin, 214 S.W.Zd 451, 453
(Tex. 1948). A conveyance of land by a county is void if it is not
done in a manner I'rescribedby statute. Wilson v. City of Calhoun,
489 S.W.Zd 393, 397 (Tex. Civ. App. - Corpus Christi 1972, writ ref'd
n.r.e.). Article lli77states that counties x sell real estate in
accordance with its provisions. Absent other authority for selling
real estate, however, a county must sell real estate in accordance
with article 1577 or not at all. 15 Tex. Jur. 2d Counties 188.
p. 1527
-1
Honorable William A. Ewert, Jr. - Page 2 (JM-335)
Clearly, when counties sell real estate by other means authorized by
the constitution or statutes, compliance with article 1577 is not
mandatory. -See Ferguson v. 'lalsell,47 Tex. at 422 (1877).
Also, both article 445,41 and 4437e-2 authorize something more
than the sale of real est.ate. Both statutes clearly permit and
perhaps anticipate the sale of a hospital as a going concern. Such a
sale would include not on:Ly real property but also tangible and
intangible personalty. Consequently, article 1577 alone would not be
sufficient to authorize the sale of a functioning hospital. Indeed,
in 1969 this office considered whether Wharton County had the
authority to sell its county hospital. At that time article 1577
authorized counties to sel:. real estate at public auction, but no
statute applicable to Whartco County specifically authorized a county
to sell its county hospital. Finding no authority for the sale, this
office concluded that Wharton County had no authority to do so.
Attorney General Opinion M-,048 (1969). See also Attorney General
Opinion H-668 (1975). SimiLarly, in response to questions regarding
the lease of a county hospital, this office has consistently looked to
statutes dealing specifically with the lease of county hospitals, not
to article 1577, which also gives counties authority to lease real
estate. Attorney General Opinions H-777 (1976); H-16 (1973).
Implicit in those opinions is the conclusion that article 1577 does
not authorize the lease of a county hospital in the absence of
specific statutory suthorit,y for such a lease. It would be non-
sensical to conclude that even though article 1577 does not authorize
the sale or lease of a cow&y hospital, its provisions are mandatory
when a county hospital is sald or leased pursuant to another statute.
The establishment and aiaintenance of hospitals is an important
and unique county function. Consequently, the legislature has enacted
a wide range of statutes 5;overning county hospitals. See, e.g.,
V.T.C.S. arts. 4478 throu@;h 4494r-4; V.T.C.S. arts. 4437 through
4437d. In our opinion a statute that specifically refers to a
county's power with regard to a county hospital applies to the
exclusion of a relevant statute that deals with a county's powers
generally. See State v. .A=, 570 S.W.Zd 122 (Tex. Civ. App. -
Austin 1978,Twrit).
SUMMARY
A county is n#,I:required to comply with the
public auction ,:equirements of article 1571,
V.T.C.S., when ii: sells a hospital pursuant to
article 44941 or rrticle 4437e-2, V.T.C.S.
JIM MATTOX
Attorney General of Texas
D. 1528
Honorable William A. Ewert, Jr. - Page 3 (JM-335)
I
TOM GREEN
First Assistant Attorney*Genc!ral
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Conrmittee
Prepared by Sarah Woelk
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1529