Untitled Texas Attorney General Opinion

. ” . 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