Untitled Texas Attorney General Opinion ( 1962 )

THE ATTORNEY GENERAL
OF TEXAS
Honorable Clyde Boose Opinion No. WW-1332
Nolan County Attorney
P. 0. Box 1200 Re: Whether the Commissioners'
Sweetwater, Texas Court of Nolan County may
legally approve expendl-
tures for a hospital laundry
under the stated facts and
Dear Mr. Boose: related questions.
Your request for opinion from this office reveals that
in 1956 Nolan County and the City of Sweetwater entered Into a
joint agreement for the operation of a city-county hospital,
pursuant to Article 44941 of Vernon's Civil Statutes.
Two pertinent paragraphs of this agreement state as
follows:
"9. It is stipulated that the City shall
have right to remove for cause any member of the
Board of Managers appointed by the City Commission;
the County Commlssloners Court shall have the
right to remove for cause any member of the Board
of Managers appointed by the County; the member of
the Board of Managers appointed jointly by the City
and County shall be removable for cause by the
joint action of the City Commission of the City of
zy;i&;;er and the Commissioners Court of County
II
. . .
“14. It is speclficallv anreed that the Board
of Manaaers shall not make any exDenditure not
covered bs its budget as approved by the Clts and
County exceDt with the specific Dermlsslon and con-
sent of the Cltv Commission of the Clts of Sweet-
water and the Commissioners Court of Nolan Counts,
Texas." (Emphasis added)
Further facts are that the Board of Managers recently
expended close to $30,000.00 for the construction and equipping
of a hospital laundry which was an unbudgeted Item. No permls-
sion was obtained from either the City Commission or the
. .
Honorable Clyde Boose, Page 2 (WW-1332)
Commissioners' Court. Bids were advertised
_ _ and
. received
-..on
the building, but were not on tne laundry equipment. It 1s
further slgnlflcant that in October of 1961, the Commissioners'
Court of Nolan County approved the budget for the hospital
which did not include the laundry.
You then ask the following three questions:
"(1) Can'the Commissioners Court of Nolan
County legally approve these expenditures since
the building was not a budgeted Item nor was any
single Item of the laundry equipment shown In
their budget, and no permission of any kind was
sought or obtained from either governmental unit.
"(2) Would the City and County be liable
for these expenditures not authorized by the
hospital budget or any other form of authorization
from the governmental units? Would such action
on the part of the Board of Managers be cause for
their removal as board members?
" 3) In regard to Attorney General's Opinion
No. ~6 A3 dated 1948, could you advise me what
would be Included in materials and supplies in
excess of $150.00 and what would be meant by con-
tracts in excess of $2,000.00?"
Article 44941 provides in part as follows:
"Section 1. Any county of the State and any
incorporated city or town within such county, act-
ing through the Commissioners Court of such county
and the governing body of such city or town, may
jointly establish, erect, equip, maintain and
operate a hospital or hospitals for the care and
treatment of the sick, infirm, and/or injured; and
for the purposes of establishing, erecting, equip-
ping, maintaining and operating such a hospital or
hospitals, the Commissioners Court of any county
and the governing body Of any city or town within
such county may, by resolution or other appropriate
action, confer upon, delegate to and grant to a
Board of Managers, as hereinafter provided, full
and complete authority to establish, erect, equip,
maintain and operate such hospital or hospitals.
Such cities or towns and counties that have hereto-
fore issued and sold bonds for the specific purpose
of jointly establishing, erecting, equipping,
maintaining and operating such joint county-city.
.
Honorable Clyde Boose, Page 3 (WW-1332)
hospital may finance,such hospital or hospitals
out of general revenues and are each, respectively,
hereby authorized to levy and collect a tax, not
to exceed Ten (10) Cents per one hundred dollar
valuation on the property subject to taxes therein,
for such purposes.
I,
.,. .
"Sec. 4. Such Board of Managers ahall have
full and complete authority to enter Into any
contract connected with or Incident to the estab-
lishment, erection, equipping, maintaining or
operating such hospital or hospitals, and in this
connection shall have authority to disburse and
Pay out all funds set aside by such county and
such.clty or town for purposes connected with
such hospital or hospitals, and such action by
such city or town as though such action had been
taken by the Commissioners Court of such county
or governing body of such city or town.
‘Sec. 5. Once each Near such Board of
Mananers shall DreDare and Dresent to such Com-
missioners Court and the noverninn body of such
city or town a comDlete financial statement of
>
and shall submit therewith a DroDosed budnet of the
anticiDated financial needs of such hOsDita1 or
hosoitals for the ensulna year. On the basis of
such financial statement and budnet the Commissioners
Court of such county and the aovernlnn body of such
clts or town shall aDDroDriate or set ~aslde for
the use of such Board of Managers In the oDeratIon
of such hosDita1 or hosDitals the amount of money
which seems DroDer and necessary for such DurDose.
II
. . .
“Sec. 7. In.connectlon with the erection and
equipping of such hospital or hospitals said Board
of Managers shall have the authority to determine
the manner of ,expendingany funds that may have
been provided by such county and such city or town..
for such purpose, whether by the Issuance of bonds
or other obligations, or by appropriations from
other funds of such county and city or town, It be-
ing the lntent?.onby this Act to grant to such
Boards.the complete authority to manage and control
all matters affecting such hospitals, reserving.to
Honorable Clyde Boose, Page 4 (WW-1332)
such county and city or town the right only to ap-
point members to such Board of Managers and to
approve the annual budget hereinabove provided for."
(Emphasis added)
We feel that the leglslatlve intent of Article 44941
was that the annual budget was to be a complete financial state-
ment of condition of the city-county hospital. It therefore
follows that since the amounts expended for the hospital
laundry were unbudgeted, the expenditures were unauthorized ones.
Many opinions from this office have held that the
commissioners' court Is a court of limited jurisdiction and does
not have any power unless expressly given to it by the consti-
tution or the statutes.
An Inspection of Artlclo 2351 et seq. of Vernon's Civil
Statutes reveals that there Is no:statute allowing the commls-
sioners ' court to make contracts at their discretion; such
power If exercised must be delegated to them or reasonably in-
ferred from the Constitution or the statutes. In Canales v.
Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948), the Supreme
Court stated:
"The Constitution does not confer on the
commissioners courts 'general authority over the
county business' and such courts can exercise
only such powers as the Constitution Itself or
the st~atuteshave 'specifically conferred upon
them'. . . . While the commissioners courts have
a broad discretion In exercising powers expressly
conferred on them, nevertheless the legal basis
for any action by any such court must be ultimately
found in the Constitution or the statutes."
For other cases denying the use of implied powers in
absence of a statute, see uv. 110 Tex. 179, 217
S.W. 373 (1919); Moon v. Alred, 277 S.W. 787 (Clv.App. 1925,
error dlsm. w:;o..j.); Hill v. Sterrett, 252 S.W.2d 766 (Civ.
App. 1952, error ref. n. r. e.).
.
Since the legislature has provided for the establlsh-
ment, operation and management of city-county hospitals, It
therefore follows that the commissioners' court had no power to
make the agreement set out In paragraph 9. Section 2 of Article
44941 provides for the selection of members of the Board of
Managers and states how their successors shall be selected. Any
attempt by the clty,and county to otherwise control the selection
is Invalid, and therefore we must hold Section 9 of the agree-
ment to be void. However, Section 14 of the agreement is In line
with the rrovislons of Article 44941 and is therefore a valid
provision.
Honorable Clyde Boose, Page 5 (WW-1332)
Numerous court decisions of this state have held that
if the Commlssloners' Court Initially had the authority to make
a contract, and that if any unauthorized action is taken without
their approval, that they may subsequently ratify same, which
will then become binding. We quote from Galveston County v.
Gresham, 220 S.W. 560 (Clv.App. 1920, error ref.) as follows at
-563:
"'A contract made in the name of a Com-
missioners' Court by an unauthorized par:%
may be ratified by a formal order; . . .
Here we are not concerned with a contract made by the
commissioners' court but only with thelr approval of a contract
or action taken by another body. Under these circumstances we
advise you that the Commissioners' Court of Nolan County may
now ratify and approve expenditures made by the Board of Managers
if they so desire. Boydstun v. Rockwall Count& 86 Tex. 234,
24 S.W. 272 (1893), Galveston County v. Gresham, su ra, Williams
v. Pure 011 Co., 124 Tex. 341, 78 S.W.2d 929, 9317" 1935).
As to.your second question, If the Commissioners' Court
does not ratify the expenditure of the Board of Managers, It
follows that the unbudgeted and unauthorized expenditures do not
bind the County or the City as a contractual act.
You then ask if the action of the Board of Managers
would be cause .for their removal. Since our opinion holds Section
9 o? the agreement Invalid, we must hold that neither the city
commission nor the county commissioners' court may remove any
members for cause by virtue of said agreement. In this connection,
however, we refer yoti to Article 5970, Vernon's Civil Statutes,
which provides-that county officers may be removed from office
for lncompentency, official misconduct, etc. We also refer you
to Section 4 of Article 5.of.the Texas Constitution and J. C.
Ennleman Land Co. v. Donna Irrlnatlon Dist, 1209 S.W. 42-v.
App. writ ref. 1919) which holds that a director of an lrr$gatlon
district can be tiemovedonly as prescribed in Article 5970, and
Hendricks v. Stat=, 4g.S.W. 705 (Clv.App. 18%) which made the
same holding in reference to school trustees.
Regardln your third question, In Attorney General's
Opinion No. v-683 71948) we find the following conclusions:
"It is our opinion that the Board of Managers
of a City-County hospital operating under the pro-
visions of Art. 44941, does not have to advertise for
bids for materials and supplies in excess of $150.00
or on contracts in excess of $2,030.00 as provided
in Articles 1659 and 2368a, V. C. S."
. .
Honorable Clyde Boose, Page'6 (WW-1332)
Since the Board of Managers may make contracts for
or purchase supplies and materials without complying with the
requirements of Articles 1659 and 2368a, It therefore follows
that it Is unnecessary to answer your third question.
SUMMARY
The Commissioners' Court of Nolan County may legally
approve and ratify a previous unauthorized expenditure
of the Board of Managers of a city-county hospital if
they see fit.
If they do not so approve and ratify, the City of
Sweetwater and the County of No-an are not legally
liable for the unauthorized expenditures under an un-
authorized contract.
The Commissioners Court and the city commission has
the right only to appoint members to such Board of
Directors and may not by an agreement assume the power
to discharge the Board of Directors.
The provisions of Articles 1658, 1659, and 2368a do
not apply to a city-county hospital established pur-
suant to Article 44941 of Vernon's Civil Statutes.
Sincerely yours,
WILL WILSON
,:~~~iii$Gq-
Assistant
FDW:jkr
APPROVED:
OPINION COMMIT'X!EE
W. V. Geppert, Chairman
J. C. Davis
Marvin Sentelle
Bob Patterson
Malcolm Quick
REVIEWRDFORTHRAlTCRNHYGRNRRAL
BY: Houghton Brownlee, Jr.