Untitled Texas Attorney General Opinion

Dr. George IY. cox State Health Officer &Win, Texas Dear Sir: Opinion No. O-25804 Rer Acceptance of a gift by Liberty County and opamtion of a clinic or dispensary es public health and sane ltation mf3(1sure~ Your recent request for an opinion of this Department upon the questions as are herein stated has been received. Your letter reads in part as follows: "Sometime ago the Honorable Murphy Cole, Comty Auditor of Liberty County, requested an opinion of your Department relative to the establishment of a Olin- ic in Liberty, Texas. "In your opinion numbered O-2580 you stated that the Commissioners' Court of Liberty County may lease the clinic lmildizgs in question or may accept said buildings by deed as a gift only after the court has been duly authorized to establish and maintain a county hospital by the majority of the qualifiedtax paying voters of the county at a special election. According to Mr. Cole's letter the faots of the case are these: In 1935 'Miss Yettie Kersting of Liberty County inspired by an ambition to leave a heritage to the needy of the county, particularly the sick, made her will dedicat- ing her entire estate to Libertg County and direoting that the proceeds of same be used for the purpose of constructing a county hospital. "Since Miss Yettie is still alive and haa recent- ly decided that &he would like to see at least a par- tial realization of her ambition before her death, she has made a proposition to the Conrmissioners'Court that she would,.with her own money, construct a-medical clinic building and hold the remainder of her property under her charge and connrol until her death and then the terms of her till would take affect, which would give a group of trustees authority to buy, sell, or trade -- or convert her property into cash for the Dr. George W. Cox, Page 2 (0-2580-A) purpose of constructing a hospital. In view of the fact that this wcmderful gift has been offered, the Commissioners' Court of Liberty County desires to accept the gift of the clinio and provide for the maintenance thereof from county funds. Ronever, it secrmsfrom your opinion numbered O-2.580that this money could be accepted only after the court had been duly authorized to establish and maintain a county hospital by e majority vote of the qualified voters of the county et a special election. "4rticle 4410f of the Revised Civil Statutes is es followsr *It shell be lawful for the state Depart- ment of Health to accept donations end contributions to be expended in the interest of the public health and the enforcement of public health laws, The Cmmis- sioners' Court of eny county shall have the authority to appropriate end expend money from the general rew- nues of its county for and in behalf of public health and sanitation within its county.' "In viewof this particle,would the Ccmmissioners' Court be authorized to spend money for the maintenance of this publio health clinic without first establishing e county hospital? Should it be determined that the county is not authorized to spend money under such oir- ownstances end that a county hospital must first be es- tablished before such gift could be accepted, the fol- lowing petition has been drafted by more than 10 per cent of the qualified property tax paying voters of the county: "' bb, the undersigned qualified voters residing in Liberty County, Texas, do respectfully petition your Honorable Body to order en election in the said Liberty County for the purpose of determining tihetheror not the County shall maintain from year to year, together with the State and Federal Governments, a County owned clinic which shell have been erected end presented to the County as a gift, end which shell require no increase in taxes or no bond election. my Dated this the 16th day of September, A.D., 1940.' "Under circumstances es these where there will te no increase in taxes or no bonds issued, would the Corn- missioners' Court be authorized to cell such en election, and whet procedure would they be required to follow?" Dr. George W. Cox, Page 3 (0-2580-A) , : The letter of hIr. Cole, referred to above, furnishes the following additional informatioar "The Liberty-Chambers County Medical Association has agreed to cooperate by naming frcpaarraong its oxr membership physicians who till give a oertain nlanberof hours each week to the treatment of the indigent sick, end et no expense to the county. ~ "The Federal Government, through the Stete Depart- ment of Health, will contribute approximately ~,OOO.OC per year by employing a physician, e nurse and furnish- ing medicine for the treatrmentof venereal diseases, if a county clinio is established,end made~available for the purpose. ."~ I_ . "All the other expense of the clinic,,except the :'medioal fees in the treatment of the indigent silk, end for venereal diseases control, es mentioned above, would be borne by Liberty County." Article 4470, Revised Civil Statutes, 1925, enacted in 1913, (33rd Leg., p. 71), reeds es follows: "The coremissionerscourt of any county shell have the power to establish e county hospital and to enlarge any existing hospitals for the cere andtreetment of. persons suffering from any illness, disease or injury; subject to the provisions of this chapter. At intervals of not less than twelve months, ten per cent of the qual- ified property tax peying voters of a aountymey petition such court to provide for the establishing or enlarging of a county hospital, in whioh event said court within the time designated in suoh petition shall subunitto such voters et a special or regular eleotionthe proposition of issuing bonds in suoh aggregate amount es may be des- ignated in said petition for the establishing or enlarg- ing of such hospital. Whenevereny such proposition shall receive a majority of the votes of the qualified property tax paying voters et such election, said canmissioners' court shell establish end maintain such hospital and _ shall have the following powers, "1. To purahase and lease reel property therefor, or acquire such reel property, and easements therein, by oondemnatioa prddeedings. "2 e To purchase or erect all necessary buildings, make all necessary improvements and repairs and alter any existing buildings, for the use of said hospital. Dr. George W. Cox, Page 4 (O-2580-&) The plans for such ereotion, alteration, or repair shall first be approved by the State Health Officer, if his approval is requested by the said oommission- ers* oourt. '3. To oause to be assessed, levied end colleot- *d, suehtaxes upon the real and personal property 01~1~ ed intie county es it shall deem necessary to provide the funds for the maintenance thereof, end for all other necessary expenditures therefor. "4. To issue C&&y bonds to provide funds for the establishing, enlarging and equipping of said hospital andfor all other necessary permanent improvements in connection therewith; to do all other things that may be required by law in order to render bonds valid. w "5. To appoint a board of managers for said hospital. “6. To accept and hold in trust for the county, any grant or devise of land, or any gift or bequest of money ' or other personal property of any donation to be applied, principal or income or both, for the benefit of said has- pital, and apply the seme in aooordance with the terns of of the gift." Article 4481; Rwised Civil Statutes, 1925, which was enacted es a portion of the 1913 Bat, reeds as follows: "The board of managers may also establish end oper- ate an outpatient department or free dispensary and olin- io at the hospital or in the city nearest to whichthe hospital is located, with branch dispensaries or cli4cs in every city ortovm in the county of five thousand pop- ulation and over. They shell appoint a physician or phy- sicians, who shall serve et such dispensaries or clinios, and shell determine the amount of time required to be spent et such dispenseries or clinics 'by such physicians, end shall fix the salaries, if eny, of such physicians. ~ Said board shall also appoint one or more trained visiting nurses to serve in conneotion with each such dispensary or clinic, end in connection with the hospital, and shell fix their salaries within the limits of the appropriation made therefor by the oozunissioners'court." Article 44Df, Vernon's Texas Civil Statutes, quoted in your let- ter of request, wes passed in 1927, Acts 40th Leg., 1st C.S., p. 131, oh. 42, 8 10. . ( Dr. George W. Co%, Page 6 (B-2580-A) The Act of which Articles 4470 and 4481 were a part is concern- ed with the establishsent and operation of a county hospital and the reg- ulation, service and management in connection therewith. The first Section authorizes the establishsent and enlargement, issuadee of bonds, other in- cidental powers and the aoceptanoe and application of gifts "for the bene- fit of said hospital.'! Sectnons 2 and 3 provide for a board of managers, superintendent, and staff of visiting physicians. Section 5 provides for the establishent, in connection with said hospital; of a special and separate school for the education, care and treatment of children suffer- ing from tuberculosis and matters relative thereto. Section 6 authorizes the Board of hianagersto secure fromthe State Board of Health pamphlets, circulars and bulletins at aotual.cost of printing on communicable dis- eases and distribute same to various~organizations and individuals. Pro- vision is made for the keeping of records and accounts; making reports to the Board of Managers and Commissioners' Court; and,the admission and dis- charge of patients. Wherever county hospitals may exist in connection with a county poor house or on its grounds'the terms of the Act shall apply in like manner as if the hospital had been originally establibhed under the provisions of the Act. Article 4481, quoted above, appears as Se&ion 4 of the Act and authorizes the establishment and operation of an "outpatient department or free dispensary and clinic' and "branoh dispensaries or clnics" by the "Board of Danagem" of the hospital. It till be noted that Section 4 as well as other sections of the Act places authority in the Board of %nagereof the hospital to establish an provide the .particular departments and services mentioned. A careful consideration and examination of the Act as a whole leads us to the conolu- sion that the legislative purpose was to enact comprehensive provisions for the establishment, operation, government, and management of county hospit- als, as such, and to give directions and define the powers and services v.hichmight be performed in oonnection with, and as a part of the hospital institution.~ This being true, it doss not necessarily follow that when the Legislature placed it within the statutory powers of the hospital or its board of managers to do an act or perform a service, when established, that the county or the commissioners' court could not under its general powers furnish any of the facilities-or do any of i&e acts which could be done by the hospital or Board rirManagers if such institution were estab- lished. Subsequent to the passage of the Act of 1913, the Legislature granted general powers to the ccnssissioners'court in the following lan- guage 1 .~. " . . e The Commissioners' Court of any county shall haw the authority to appropriate and expend money fromthe gen- ,eral revenues of its county for and in behalf of publio health and sanitation within its county.’ (Art. 4418f, V.T. , C.S.) . Dr. George W. Cox, Page 6 (0-2580-A) , No detailed direotion is given es to how such general power shell be exercised but this matter is left largely within the discretion of the ccmmissiomsrs' court. In our opinioh Ro. 'O-2281we had before us for consideration the question as to whether a particular county could establish a "ooun~ health unit." After pointing out the duties of the County Health Offi- cer and the provisions of Article 4538a, Vernon's Texas Civil Statutes, authorizing the Commissioners' Court to employ one or more Graduate Reg- istered nurses whose duty it is to visit the public schools in the county, investigate the health conditions and sanitary surroundings of such schools. coonerete with the dulv oreanized Board of Health and local health authorities in general and "perform such other and further duties as may 4, re uired of' them n it was ruledr "Although Seation 10 of the-Act (Article 4418f) doss not expressly authorize the creation of a 'County Health Unit, 1 it does authorize the expenditure of funds from the General Fund of the county for and in behalf of public health and sanitation in the county. "J.tis. therefore, the opinion of this Department that .&ticle'4418fl Vernon's Civil Statutes, authorizes the Commissioners Court to appropriate and expend money from the general fund of.the county for and in behalf of publio heslth end sanitation within the county. Such statute does not place eny control or limitation on such expenddtures as to how the money maybe expended. Such funds expended in cooperation tith the State Health De- partment in its authorized administration of the health and sanitation laws of the State within the county would meet the requirement of the Statute. No additional levy of taxes outside of the constitutional limit of twenty- fice cents on the hundred dollar valuation (Article 8 of Section 9 of the Constitution) is contemplated or author- ized." When it is reasonably necessary in behalf of the public health and sanitation within the county, it is our opinion that the Cnmaissionars~ Court of a county may appropriate and expend money from the general revenues,of the county for treatment, consultation and medical supplies without bonds and es- tablishing a hospital, notwithstanding such services might be included within the statutory authority of the hospital if established. The general rule is that counties may take by gift and hold the le- gal title to property or in trust for a public use or purpose inless prohibit- ed by statute. 7 R.C.L. p. 947, 5 23; 5 R.C.L. p. 320 et seq; 20 C.J.S. p. 994 et seq. In Scholf v. Collins County (Sup. Ct. lSQl), 16 S.i7.314, a pauper who had been received end treated by the county, prior to the execution of the deed, conveyed her homestead to the county. It was contended that the county Dr. George W. Cox, Page 7 (0-2580-A) could not hold such title against the lawful heirs that at the time the county acquired title it was not "acquired for sny public purpose, such as a site for a courthouse, jail, etc., and that the same has never been used by the county for any such public use or purpose, except the said Lucretia never changed her residence, but lived upon the land, and vas supported by the county, under the terms of the deed until she died in 1888, and the county since her death has bsen renting~out said land." The court heldr 'De know of no law that limitsthe power of counties to acquire title to land to such only as are intended for uses mentioned in the third objection. Articles 660-682 of the,pevised Statutes (See Article 1576, R.C.S., 1925) contain an express recognition of the right of~counties to take title to and enjoy real estate without any limitation beiag expres- sed as to the purposes for which it shall be used. Eel1 county vs. Alexander, 22 Tex. 350.” In hell County vs. Alex@ider, (1858) 22 Tex. 351, the test&or left a portion.of his property to one county for the benefit of the public schools and a portion to other counties for the benefit of the suffering poor over the age of forty-five. It NBS contended that the county was not capable of taking, under the will, the property devised. In over- ruling the contention and upholding the devise the court stated: "There is as little doubt of the capacity of the county to take an estate in lands, by grant or devise. . . . Theymaytake and hold, and disposs of, private property for municipal uses (Sart. Dig. Art.213, et seq.) or such uses and purposes as subserve the public good, and the exercise of the local and subordinate legislative poxers with Ht:ichthey may be invested by the public lea of the state, or by private legislative acts. Angel1 6: Ames Eorp: 30; 2 Kent Corn.275, and notes. Though publio corporations, they have the same capacity inthis respect and to this extent, as a private corporation to take and hold property in trust. n. . . The counties are entrusted with the duty, to provide for the support of indigent persons, resi- dent in the county (Hart. Dig. Art. 309): and it cannot be doubted, they are competent to take snd administer a charitable bequest for that purpose," Dr. George W. Cox, Page 8 (0-2580-A) Here the Conmissioners' Court is authorized to appmpriate and en- pend money and it is made its duty to promote the publio health and sari- itation within its county. It may be neiessary to furnish consultation, treatment, promote public education in these matters, and dispense medi- cines. It is oti opinion that the County acting through the Commission- ers' Court may accept the gift of a building in furtherance of such pur- pose and as a central place for its activities. I% do not mean of course that the Coannissioners Court may build, establish, equip, and maintain a oouniy hospital or issue bonds therefor other than as provided by Chapter Five, Title 71, Revised Civ'ilStatutes, 1925. That question is.not before US. ' court of Liberty County may It is our opinion'that the Catnaissioners spend money for the~maintenance of a public health clinic without first establishing a county hospital, uuder the facts presented. Our opinion No. O-2580 is so modified as to conform to the oonclu- sions herein expressed. Yours very truly ATTOREEYGEXERM, OF TEX4S BY a/ Cecil C. Camnack Ceoil C. Camaaok Bssistrztt CCC:N:egw APPROFED OCT 29, 1940 s/Gerald C. Nann 4TPORNEYGE5ERA.L OF TEX.45 This opinion considered ' and approved in limited conference