Untitled Texas Attorney General Opinion

_ -._ ._ Honorable A. E. Hickerson County Auditor, Montgomery County Conroe, Texas Dear Mr. Hickerson; Opinion No. O-926 Re: Whether or not the County Rospi,talBoard of Managers is authorized to issue and sell monthly hospitalisa- tion service policies. With further reference to your letter of June 2, kindly be advised that your request f~oran opinion as con- tained therein has received the attention of this depart- ment. The questions asked by you are as follows: Vi. Would the enclosed agreement if put in effect by the Montgomery County Hospital (I will say, which is owned and operated by Montgomery County) and sold only to residents of Montgomery County, comply with any statute which may exist. "2. If so, is there any statute covering the amount of expense which the Montgomery County Hospital may expend in selling these agreements and overhead in general caused the hospital by virtue of inaugurating the plan. "3. Based upon information by hospitals using;such plan, we understand that it Is not necessary to secure a charter, that so long as Montgomery County Hospital issues the agreement only to citizens of Montgomery County, that this is all that is necessary. Is this correct?" Hon. A. E. Hickerson, page 2 o-926 We observe from your letter that the Mont- gomery County Hospital is owned and operated exclusively hy Montgomery County, and we necessarily presume that s'amewas constructed and established under the rovi- sions of Chapter 5, Title 71, Articles 4478 to c4 98 in- clusive, Revised Civil Statutes of 1925 and amendments thereto. Anticle 44.78provides: "The commissioners count of any county shall-have power to establish a county hospital and to enlarge any existing hospitals for the care and treatment of persons suffering from any illness, disease or injury, subject to-the pro-. visions of this chapter. At intervals of not' less than twelv.8 .months. ten uer cent of the quald$*d -.-tax ~aying'voters of a county may petit.ionsuch court to provide for the es- tablishing or enlarging of a county hospital, in which event said court within the time designated in such petition shall submit to such voters at a special or regular election the proposition of issuing bonds in such aggregate amount as may be designated in said petition for the establishdng or enlarging of such hospital. Whenever any such proposition shall rece1ve.a majority of the votes of the qualified property taxpayers voting at such election, said commissioners court shall establish and maintain such hospital and shall have the following powers: "1. To purchase and lease real property therefor, or acquire such real property, and easement6 therein, by condemnation proceedings. "2. To purchase or srect all necessary buildings, make all necessary improvements and repairs and alter any existing buildings, for the use of said hospital, The plans for such erection, alteration, or repair shall first be approved by the State *ealth Officer, if his ap- proval is requested by the said commissioners court. “3. To cause to be assessed, levied and collected, such taxes upon the real and personal property owned in the county as it shall deem Hon. A. E.B&ckerson, Page 3 o-926 necess&ry to provide the funds for the main- tenance thereof, and for all other necessary expenditures therefor. “4. To ;issue county bonds to provide funds-for the establishing, enlarging and ~_ equipping of said hospital and for all other necessary permanent improvements in connection' therewith; to do all other things that may be required by law in order to render said bond3 valid. "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 pro- perty or any donation to,be applied, principal or income or both, for the benefit of said hospital, and apply the ssme in accordancs with the terms of the gift. (Acts 1913, p. 711." Article 4479, as amended by the Acts of the 40th Legislature 1927, pertaining to the board of managers for said hospital, provides that the term of office for 8Wh member of said Board shall be two years, except that in making the first appointments after this Act takes effect three members shall be appointed for one year and three m8mberS for two years 30 that thereafter three members of said board till be appointed every two years. The managers shall receive no compensation for their services but the Act provides that they shall be allowed their actual and necessary traveling and other expenses within this state to be audited and paid by the commissioners court in the same manner as other expenses of the hospital. This Article further provides that any manager after being cited may at any time for cause be removed from office by said court. Article l&80, pertaining to the powers of the Board of Managers, provides in part that the Board shall have the general management end control of the said hospital, grounds, buildings, officers and anployees thereof; of the inmates therein and of all matters rel ting to the government, discipline, contracts and fiscal coe - terns thereof; and make such r~11es and regulations asmay . . Hon. Aa E. Hickerson, page 4 o-926 seem to them necessary for carrying out the purposes of such hospital. Your attention is further.called to .the other pnovisions of Chapter 3 pertaining to the admission of patients, and that no discrimination shall be made in the accommodations, care or treatment of any patients because of the fact that the patient or his relatives contribute to the cost of his maintenance, in whole or in part, and that where a patient is able to pay for his maintenance the hospital shall not charge any greater sum than the aver- age per capita cost of maintaining such patlent including a reasonable allowance for the interest on the cost of the hospital. The above statutes are called to your attention for the purpose of showing the Legislature has treated the subject of erecting, establishing, operating and maintain- ing such hospital with considerable detail. The commissd,onerscourt is given the authority to acquire real property for such purpose; to erect all ne- cessary buildings, and to levy and collect taxes for the maintenance thereof. We do not construe such contracts as-authorized to be made'by the county board of managers as granting to said board any greater power or authority ,tomake and enter into contract for the maintenance of said hospital than would be authorized to be made by the commissioners court in the absence of a board of managerL. We deem it unnecessary to go into the provisions of the policy form aspresented~along with your request in view of the authorities hereinafter cited. "'The commissioners court is a creature of the state constitution and its powers are limited and controlled by the constitution end the laws as passed by the legislaturel. Article 5, Section 18 of the Constitution of Texas; Baldwin v. Travis County, 40 Tex. Civ. App. 199, 88 SW 480; Seward V. Falls County (Tex. Civ. App. ) 2 6 SW 728; Bland v. Orr, 90 Tex. 492, 39 SW 55!bI(-- Commissioners Court v. Wallace, 15 9. W. (2d) 535. Hon. A. E. E:ckerson, page 5 O-926 It is a well settled principle of law that the commissioners court does not have any authority except that which is expressly or impliedly -conferredupon it by law. Edwards County v. Jennings, 33 S W 385; 15 Cor. Jur. 457, Sec. 103; 15 Car.-Jur. p. 537, Sec. 221. "Where a power is granted and the method of its exeroise is prescribed, the prescribed method excludes all others, and must be follow- ed." Lewis' Sutherland Statutory Construction, Vol. 2, par. 572, 527, 828, 631., We quote from 15 Corpus Juris p. 537 as follows: "In ac&ordance with .the ,generalrule here- tofore stated, that county boards or county courts have.knopowers other than those conferred expressly or by necessary implication, such courts or boards have no power to rent or lease property or franchises owned bythe county, in the ab- sence of statutory authority so to d." We quote from the case of Edwards County v. Jennings, 33 SW p. 585, as follows: "Counties are political or civil divisions of the state, created for the purpo~seof bring- ing government home to the people and supplying the necessary means for executing the wishes~bf the people, end bringing'into exercisesthe ma- chinery necessary to the enforcement of local government. Counties, being component parts of the state, have no powers or duties except those clearly set forth and defined in the constitution and statutes. 1 Dill. Mun. Corp. (par. 25). The statutes of Texas have clearly defined the powers, prescribed the duties, and imposed the liabilities of the commissioners court, the ~medium through. which the different counties act, and from those statutes must oome all the authority vested in the counties. It is provided in the constitution that the county commissioners so chosen, with the county judge, as presiding officer, shall compose the county commissioners court, which shall exer- cise such powers and jurisdictions over all county Hon. b. E. Kickerson, page.6 o-926 buslneaep as is conferred by this constitution and the laws of this state, or as m&y be here-, after prescribed. Constitution, Article 5, par. 8, sec. 18. Looking to the powers granted by the Legislature by virtue of the above cohstitu- tional provisions, we find that no authority is given the commissioners court to enter into such contract8 as the one sued on in this case. Revised Statutes, Art. 1514. It is clear that the attempted contract was beyong the power and authority donfided in the county commissioners." We find that in 1927 Honorable H. Grady Chandler, Assistant Attorney General of Texas, wrote a conference opin- ion rendered to Era E. P.!Watts, then County Auditor, of Wichita County, Wichita Falls, T&as, in which this depart- ment held that the commissioners court of Wichita County did not have authority to lease the county hospital. This ruling, we think, lends support to our view that such authority, expressed or implied, for raising tinds for main- taining a county hospital by means of selling policies of insurance is not round in the laws of tMs state. In view of the above authorities, you are, there- fore, respectfully advised thatit as the opinion of this epartment that the.~l~ontgomery County Hospital Board of iisnagers doesnot hav,eauthority to sell policies of lnsur- ante for hospital service under a membership plan as a meens of financing the county hospital affairs. Our answer to your question No. 1 renders it un- necessary for us to answer questions two and three of your letter. Yours very truly ATTORNEY GEEERAL OF TEXAS BY Wm. J. R. Ring Assistant WmlCrBT--pam APPROVED JUL lh 1939 W. F. MOORE FIRST ASSISTANT ATTORNEY GENERAL OF TEXAS APPROVED OPINION COMMITTEE BY WRK, CHAIREAR