The Honorable Anna Beth Merten Opinion No. H-777
County Auditor
Wailer County lie: Operation of a
Hempetead, Texas 71445 medical clinic in
Waller County.
Dear Us. Mertenr
You have requested our opinion regarding the operation
of a medical clinic in Waller County. You state that Waller
.County has received a federal grant from the United States
Department of Health, Education (rWelfare for the purpose oft
operating such a facility. Specifically, you askr
1. Whether Wailer County may build
and maintain a medical clinic without
submitting the decision to a vote of
the people.
2. Whether funds budgeted under
‘Major Repairs to %uflQings’ may
be expended for construction of
such a clinic.
3. Whether Waller County may lease
office space in such a clinic to
physicians engaged in the private
practice of medicine, and, if so,
for what purposes any rental paymntm
resulting therefrom may be expended.
4. Whether funds received under the
federal grant are subject to audit
by the County Auditor.
Article 4470, V.T.C.S., provides:
p. 3279
The Honorable Anna Beth Merten - page 2 (H-777)
The commissioners court of any
county shall have power to establish a
county hospital and any medical or other
health facilities and to enlarge any
existing hospitals or facilities for the
care and treatment 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
qualified property tax paying voters of
a county may petition such court to
provide for the establishing or enlarging
of a county hospital, or any medical or
other health facilities, 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 bondsin such
aggregate amount as may be designated-in
said petition for the establishing or
enlarging of such hospital or facilities.
Whenever any such proposition shall
receive a majority of the votes of the
qualified property tax payers voting at
such election, said commissioners court
shall establish and maintain such hospital
or facilities and shall have the following
powers:
1. To purchase and lease real
property therefor,,,or acquire such real
property, and easements therein, by
condemnation proceedings.
2. To purchase or erect all necessary
buildings, make all necessary improvements
and repairs and alter any'existing~
buildings, for the use of said hospital
or facilities. The plans for such
erection, alteration, or repair shall
first be approved by the State Health
Officer, if his approval is requested by
the said commissioners court.
p. 3280
The Honorable Anna Beth Merten - page 3 (H-777)
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 necessary to
provide the funds for the maintenance
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 or facilities
and for all other necessary permanent
improvements in connection .therewithr to
do all other things that may be required
by law in order to render said bonds
valid.
5. To appoint,a board of managers
for said hospital or facilities.,or
both.
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 or any donation to be
applied, principal or income or both,
for the benefit of said hospital or
facilities, and apply the same in accordance
with the terms of the gift.
7. The Commissioners Court may
lease all or part of any'medical facility
so constructed, purchased or acquired
under this Act.
Although it might be argued that the statute's grant of
authority to the commissioners court "subject to the pro-
visions of this chapter" requires an affirmative vote in a
bond election as a prerequisite to the establishment of any
hospital or other medical facility, it is our view that the
statute confers broad authority upon a county to "establish"
such facilities. As long ago as 1942, this Office reached
this conclusion. Attorney General Opinion O-4569 (1942)
declared that the language of article 4479 "is plain and
unambiguous, and confers unqualified general power upon the
Commissioners Court to establish and to enlarge hospitals
for county purposes.n
p. 3281
The Honorable Anna Beth Merten - page 4 (H-777)
A recent judicial decision supports such a readina of
article 4470. -In Sullivan v. And&s Count 517 S.W.-2d
410 (Tex. Civ. App. -- El Pzomwr +It ref'd n.r.e.), the
court held that
[alrticle 4478 gives the Commissioners
Court power to establish a county
hospital and other medical or health
facilities, includin the ri ht to
call a bond dtEs&sror
The clear implication is that a county’s authority to estab-
lish these facilities is independent of the bond election
provisions of article 4475.
Finally, article 4419f would seem to provide additional
authority for a county's right to build and maintain a
medical clinic without submitting the decision to a vote of
the electorate:
The Commissioners Court of any County
shall have the authority to appropriate
and expend money from the general revenues
of its County for and inbehalf of public
health and sanitation within its County.
Thus, we answer your first question in the affirmative.
You also ask whether funds budgeted for “Major Repairs
to Buildings" in the 1975 budget may be expended for con-
struction of a medical clinic. As we have noted, article
4410f authorizes the expenditure of general revenue funds
"for and in behalf of public health and sanitation." If the
county has not consolidated its four constitutional funds
pursuant to article S, section 9 of the Texas Constitution,
however, we believe that expenditures for construction are
to be made from the county's permanent,improvement fund.
Attorney General Opinion V-567 (1948)t Attorney General
Opinion O-6441 (1945). In order to expend for these
purposes in the 1975 budget, the commissioners court must
certify an emergency and amend its budget, pursuant to
p. 3282
The Honorable Anna Beth Merten - page 5 (H-777)
article 689a-11, V.T.C.S. The existence of an emergency is
;o:;Fstion of fact to be determined by the cemmissioners
Attorney General Opinions O-2499 (1949), O-2315
(1940;. It is therefore our opinion that the county may
construct a medical clinic from funds budgeted in 1975 for
"Major Repairs to %uilaings," provided the commissioners
court certifies an emergency and amends its budget. Such
expenditures are to be made from the county's permanent
improvement fund, or, if the county has,consolidated its
constitutional funds, from its general revenue fund.
Your third question is whether Waller County may lease
office space in its medical clinic to physicians engaged in
the private practice of medicine. We answered this question
in the negative in Attorney General Opinion H-16 (1973).
Subsequent thereto, the Legislature amended article 4478 by
adding the following:
The Commissioner Court,may lease all or
part of any medical facility so constructed,
purchased or acquired under this Act.
In Sullivan VA Andrew8 County, su ra, the court noted that
article 4470 nom the commfr
8s oners court authority to
"lease all or partn of a medical facility. .517.s.w.za at
412. Since we indicated in our anwer to your.Piret question
that the county may establish a medical facility pursuant to
article 4478, our opinion that it may lease "all or part" of
the facility "so constructed, purchased or acquired under
this Act." We note, however, that in order to avoid the
objection that such leasing of a county-owned facility is:
violative of article 3, section 52 of the Texas Constitution,
it must be done for a valid public purpose and the county
must receive 'substantial value in return" for its grant of
the leasing privilege. -See Sullivan & Andrew8 County,
supra at 413.
Rsntal payments received for the lease of the medical
facility are appropriated by article 1629, V.T.C.S., to the
"third class" of county funds, which comprises:
p. 3283
The Honorable Anna Beth Merten - page 6 (H-777)
All money received, not otherwise
appropriated herein or by,the
commissioners court.
Moneys paid into this account are to be utilized to pay
[a]11 the general indebtedness of
the county, including feeding and
guarding prisoners, and paupers
claims. V.T.C.S. art. 1626.
In our opinion, therefore, rental payments received for the
lease of the medical facility should be paid into the county's
general revenue fund, to be expended for the general inaebt-
edness of the county.
your last question is whether funds received under the
federal grant are subject to audit by the County Auditor.
The County Auditor is charged by article 1651, V.T.C.S.,
with the
general oversight of all the books
and records of all the officers of
the county, district or state, who
may be authorized or required by
law to receive or collect any money,
funds, fees, or other property for
the use of, or belonging to, the
county . . .
This statute is extremely broad, and we believe that it
empowers the County Auditor to audit all county funds,
including those received under a federal,grant. An exception
would, of course, obtain if the terms of the grant specified
that the funds received did not become county monies or were
not otherwise subject to county audit. See Attorney General
Opinion M-007 (1971). But, subject to tm exception, it is
our opinion that funds received under a federal grant are
subject to audit by the County Auditor.
p. 3284
The Honorable Anna Beth Merten - page 7 (H-777)
SUMMARY
Waller County may build and main-
tain a medical clinic without submitting
the decision to a vote of the people.
The county may utilize for such purpose
funds budgeted under “Major Repairs to
Building" in the 1975 budget, provided
the commissioners court certifies an
emergency and amends its budget.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jwb
p. 3285