September 30, 1965
HonorableRalph Prince Opinion No. C-517
County Attorney
Box 2403 Re: Whether the Commissioners
Longvlew,Texas Court may, acting under the
provisions of Article 4494(L),
V.C.S., lease the county
hospital for a 99 year term
with the express agreement
that the lessee may encumber
the land, existing buildings
and equipment for substantial
improvementsthereto, lnclud-
ing the constructionof new
buildings and the purchase of
Rear Sir: new equipment.
You have requested an opinion ofthls office on the
followingquestion:
"May the CommissionersCourt acting under
the provisions of Article 4494 (L) R.C.S. lease
the county hospital for a 99 year term ,withthe
express agreement that the lessee may encumber
the land, existing buildings, and equipment for.
substantialImprovementsthereto, including the
constructionof new buildings and the purchase
of new equipment?'
In 1959,.you requested an opinion of this office
(~~-630) as to whether the CommissionersCourt of Gregg County
bad the authority under Article 4494 (L), Verhon's Civil Statutes,
to lease the county hospital. While 'answeringyour request
in the affirmative,our office pointed outthat in,the proposed
lease contract:
II .the county does not lend Its credit
or be&ml a stockholderIn or subscrlber~to the
capital~ofthe lessee and,does not enter upon a
joint venture with said lessee since control over
the management and operation of the hospit.alis
ceded to .the~lessee,all debts of the hospital.
-2424:
Hoi. Ralph Prince, page 2 (C-517)
are avoided by the county, and it Is held safe
for atiyliability which might arise from the
operation of the hospital. . . .'I
The Proposed lease'.lnthe present Instance would allo
. the lessee to encumber the county's property and in case of
default of the lessee leave the county liable to the lien holde
Therefore, the lease In effect pledges the credit of the county
.thiscontravenes Article III, Sections 50 and 52 'ofthe Consti-
tution of the State of Texas.
Further, as also noted in Opinion w-630:
II
.No appropriationof ,public.fundsto
. .
charitable or non-charitableorganizationsmanaged
and operated or controlledby private individuals
can be made by a Commlsslone'rst
Court. Tex.Const.
Art. III Sec. 50, Sec. 51 and Sec. 52; TexiConst.
Art. VIIf Sec. 3;,and Tex.Const. Art. XVI ~Sec.
6. Upon the lease of the hospital it will: of
course, cease to be a legitimate reckpient of
county funds."
The Commissioners Court is a court of limited jurls-
diction and has only such powers as.are o,onferred upon it by
statutes and the Constitutionpy express terms 07 b necessary
implication. Childress County v. State 127 Tex. 3313, 92 S.W.2
1011 (1936); Von Rosenberg v. Lovett 1 3 S.W. 508 (Tex.Civ.App
1915 error ,ref.);Roper v. ~11;2& S!W. 289 (Tex.Civ.App.
1925). However; the Commlss oners' Court has no statutory
authority to encumber the property-through liens. Under the
proposed lease, the Commissioners1Court would allow the lessee
to encumber the land, existing buildlng~, and equipment of the
hospital. In Opinion No: O-47, this department held that:
1, .The Cixnmlssloners' Court, having np
power &iept that specially conferred by the'
Cdnstitutlonand statutes pass.edpursuant
thereto wou1.dhave no power to enter into any
contract for the building and maintenance of a
hospital, the title td which would.be held in
any main&r contrary to the principal provisions
of Article 4478.11 .
Article 4478 provides:
.At Intervals of not less than.twelve
~months';