March 10, 1971

Eon:Clifford P-11 Caunty Attorney OpinionNo. H- 806 Grayson-

County Courthouse **Re:** huthority of a city and/or Sherman,

Texas a'county to provide **for** ambulance services,and DearMr. Powell: related questions. I

Your recent letter requestingthe opinion of this officeconcerningthe referencedmatter poses the following questions

3"(1) Does the City of Sherman have the legal and constitutional prerogatibeto declare that the city ambulance service as set out in the attached ordinincet

o be a franchise? "(lA) **If** the City has such power, can .,;.the franchisearea be extended to pass the City limits and into the area of the City's extraterritorialjurisdiction? "(2).If the City can declare sucl~ambulance service4

to be a franchise, is the County entitled to contractwith other private ambulance services (any or all **of** them) to service areas of the county's

responsibility

hot servicedby the City of Sherman? l(2?4 If **the** County is not so em p cw e r ed
-. 'to make s u c h

private qmtracts, must the **County** either participatefinancially with the-City-ofSherman or operate its own public ambulance service?

-3912-**Hon. cliffora**  Powell,page 2 **(M-806)**

~"(3)Is **the** County entitled to submit to solicitbids from the private industryto provide such servicesaad if so, to what extent must such successful

bidder be able to furnish such services (Le., must such a successful privatebidder have ambulancesavailable in a central location within the county or could'suchanibulanoes be kept within

. points in the county and still satisfy the County's .duty,if any, to provide such services)?*
Texas courtshave held that, under the authorityof hrticles 1011,.10&S, ana 1175, Vernon'sCivil'Statutes, the State has delegatedto municipalities the police,

power'andthe comomitant right to -atact the health, safety,moxals, and generalwelfare of their citisensbyregulations thatarereasonable ahd necessary**for** that purpose, subject to limitationsimposed by the Constitution and statutes enactedby the Lsgislature, 12 Tex.J'ur.2d

409, Coastitutional Law; Sec. 64; 40 Tex.Jur.2d12, Dunicipal-Corpoxaticas, Sea. 321; SeeI V. Dulte, 10 **8.W.2d** 694 (Tex.Com.App. 1928);Jmbardo v. DallaL, 124 Tax. Xr 73 S.W.2d 475 (1934)7and citv **of** Dallas v.. Smith, 130 Te%. 225, 107 S.W. 2a **872 (1937).** 

Article 4434, V&non's civil Statutes,prwiaes as ‘follows: *The municipalauthoritiesof toims and cities, ana camissionets courts **of** the counties wherein such tams **and** cities a?ze situated,

amy cm-operate

with 8ach other in msking such imprwemeats **connected** with 8aid towns, cit~es~,sad ccunties as said authorities and couHs may **deem neew8sax-y**  to imprwe the public healtb kna togmsmte efficient sanitaryrsgulations; and, by mutual agreement, theylaayprwide **forth** OOM~UC~~~ **Of** 8aid **ha** prwemsnts and the paymsnttherefor.* Relevantportions.ofthe ordinanosmentioned in your first **question alid**  attached to your letter (Ordinance Ro. 2793, pa8Sed by.the City council of the city df **shermn** oa october 20, 1970) are a8 follows* : ] -3913-Hon. Clifford Powell,page 3 **(M-806)**

**“ SECTION**  1. That there be and'there is hereby created a service to the people to be called.the ShermsnAmbulance Service,which service shall be operatedwithin the Fire Department.

. . **%EcTicH 2.**  That.

the said ambulance eervice shall be available to the citizens of the City of Sherman, in accordance with the terms of this orainance,jand to the citisens of,GravsonCountv, nrovided a rruitable

contract for service in the Countv is annrwed bv the Citv Council of the Citv of Sherman and the Countv Commissioners Court. i

l : / ;
. . . . . *í

**.** *sDCTIcm'5. Tbe business **of** providingambulance serviceboth'emsrgency and transfer; is here
. tiav declared 'to

be a busin&s~effected (-1, Qith ' 1

. the .publi.k'interest and public utility and no.'person :, 8hall opkrate said business ‘within the corporateol:.- .?' extraterritorial

limits of the Citv of Sherman, except on a mission with a patient through the area, except'~ upon tbe issuance ofa certificateof public conveyati& **and** n8cessityby the City Council **0,f** the City of shemsn, mmss. . . .* (Emphasisadded.) The City of Sherman is a home rule city; its **&din&es** must con**form** to this charter.

*Every 8wereignty has an inherentpower to enact laws **for** sanitarypurposes and protection of the health **of** the public." 28 Tex.Jur.2d 9, Dealth, Sec. 1.
.

.*Hunicipalitie8

have the right, under the police power, to protect the health; 8afety, morals, and generalwelfare of their citisensby regulationsthat are -reasonable andnecessary **for the**  **purpose. A**  city **has** comprehensive power in this respect, and the power is not narrowly circumscribed by'precedent." 40 Tex.Jur.2a13.,

Municipal Corporations,Sec. 322. I .

. .*.
.. .Hon. Clifford Pawell,page 4 **(M-806)**

"In the interest**of** public health a municipality may regulateany occupation,trade, or profession
. . .* 40 Tex.Ju. 2d 67, MunicipalCorporations, Sec. 388. However, "A municipal corporations' jurisdiction

or zls confined to the territoryof its clitus, ana, unless exempoweredby the constitution or a statute it may not exercise authoritybeyond its corporatelimits.* 39 Tex.Jur.2d 640, MunicipalCorporations, Sec. 310. Ses, also, 55 A.L.R. 1182 and 14 A.L.R.Zd 103 (annotations dealingwith extensionof police power of municipal corporation beyond territoriallimits).
In the case of Citv of ?unarillo v. Griasa~Southwest **j4OrtUarV.** Inc, 406 S.w.2d 230 (Te%.Ci~.App. 1966, error **ref.** n.r.e.), the c&t held that the city of Amarillo coda validly. pass an oraim03 regulatingambulanoe 8&viceupon the streets ofthatcity,andreguire, inter alia, the issuanceof a city permit ana **of** a cert.ificate **of** convenience

and necessityas a prerequisitefooperating anaalhlanae 8erViCe.

**InhnvOf the**  foregoing,and in ansWer+OyaUr first question,we are of the opinion that'theCity.of Sherman has the legal prerogativeto pa813 the **Ordinancp** attached to your letter (and partiallyquoted hereinabove), mbject to our answer, in the followingparagraph; to your querrtion lA,
. **Qudstion** lJ4

involves the extraterritorial jurisdiction of the City of Sherman, and the applicationof the terms of the Grainancetothatarea. Pursuant to the terms of Article **4434,.** supoa, the prwieion8 of Section 2 of the Grdinancerelating to thefutni8hing of aabulance8ervicetOthe Citi8ensof GraySon County, eubject to.the execution of a'con8ensualcon-act between .the City of Sherman and ~rayson County, are legal.

However, the authoritiescited in 39 Tex.Iur.Zd 640, quoted supra, clearly **show** that the underscoredportion oe Section **5 of**  **the** Ordiniuxe, **:hezeimbove** quoted, 18 void and **of** no **effect. .-~** 

**Your** second guestion involves the power of Grayeon County to contractwith private arbulanceservices to furnish

**-391s**Eon. Clifford mwell, page 5 (M-806)

such services to t.hose,parts of the County not encompassed within the jurisdictionof the City of Sherman.

Article 441Sf, Vernon-8 Civil Statutes,prwides, in part, that: ;

*

. The CaamDissioners Court of any County shall **have** the authority to appropriateand expend money from the general revenues of its County for and in behalf of public health and sanitation within its County." : .

. **,A ’** **ttorney** &&eral'e Opinion No. C-772 (1966)helrt that, plrsuant to Article 441Sf, **supia, a**  county could **operate ’** **and msi+ain**  an ambulanck **service;** and **that** it could cooperatewith a Mty within the county in the operation of that service.

**Attortiey** General's Opinion No. M-365 (1969)held that to&s, cities,~'counties, and hospital districtshave authority .,,..to expexid.mone'y

to prwiae ambulance service.whenthere.hssbeen 'a determination

by such gwernmantal dgency that 8uch bervice will be in fiktherance**of** the public health and general welfare of its citizens. That Opinion also **held** that such authority to provide ambulance service **extending** to entering into contraotswith a private agency to provide the service , subject to-the.prwisions of Section 52 of Article III of the Constituticn**of** Texas.

See, .alro,

Attorney General's Opinion No. C-759.(1966) and **NO.** M-231 (1968).

In view **of** Arti&4418f, **supra,** and **the** foregoing Cipinions

of the Attorney General, your second question is answered in the affirmative. As this question **has** been answered in the affirmative,question 2A is not applicable.

your **third** question involves the applicabilityof Article 2368a(2);

Vernon's Civil **Statutes. .That**  Article provides, in pertinent **part,** as~followsr

*No county, acting through its Commissioners Court, and no city in thisstate shall hereafter make any contract calling for or reguiring the expenditure of payment;o;ff,o Thousand Dollars ..,,.- ‘3916,Bon. Clifford Powell, page 6 **(M-806)**
**($2,000.00)** a more out of any fund or **funds** of any city or county or subdivisionof any county aeating or imposingan obligationor liabilityof any nature or characterupon such county or any subdivision **of** such county, or upon such city, without first submitting such proposed contract to competitive bids

. Provided,that in case of public calamity. ;h&e it becomes necessary to act at once to appropriate**money** to relieve the necessityof the citizens,or to preserve the property of such county, subdivision,

or city, or when it is necessarvto preserve or nrotect the nublic health of **the** citisens of such countv or city

. . ** thjs Drwisi.on shall not annlv
. . .-(rtnphasis added.1 In Construingthe underscoredportion of Article 2368a(2),supra, the Ccmmission of Appeals, in an opinion adoptedby the Supreme court **of** Texas, held that a county could validly expend funds to protect the public health without the necessity **of** requiringthe competitive bids otherwiserequired by that Article, .and that the public health exceptionto the competitive

bid requirement

was operativeat all times,whether or not there was a "case of public calamity'. )ioffman v. Citv of Mt. Pleasant, 126 Tex. 632, 69 S.W.Z# 193 (1936).

You are advised, in answer to that portion of your third question relating to the necessity of competitive bidding **for** ambulance services,that it is the opinion of this office that such servicesare encompassed within the purview of the public health exception to Article .2368a(2), supra, and are, therefore,services**~for** which the Grayson County Commissioners Court may contractwithout the necessity **of** receiving competitive bids therefor.

As for that portion of your third questionrelating to the extent to **which** a successfulbidder must be able to furnish such services,we have concludedthat this is a factual determination

upon which this office cannot pass,. **and** that such determination

is properly left to **the** judgmentand discretion of the Grayson County Can\miSSionerS Court.

**-3917-**Bon. Clifford Powell,, page 7 (M-806)

SUMMARY (1) The City of Sherman, subject to the provisions of its Home Rule Charter,has the legal prerogativeto estabiish,by ordinance,a municipal ambulance servicewithin its **fire** department,pursuant to its constitutional powers to prwide for 'andprotect the public health of its citizens. Such ordinancemay also provide that no person shell operate an ambulance servicewithin the municipalboundaries, except on missionswith a patient through that area, unless such person first obtains a certificate of public coxdnience and necessity'from'the munici- : pa1ity. (2) Pursuant to Article 4434. Vernon's Civil Statutes,a city and a county *y coopsrateand jointly contract to establisha city-countyambulance service;however, the operatingarea **of** a city ambulance service cannot be extratarritorially exterided

beyond the boundaries of a city without the consent **of** the county or other governingbody affected. (3) Pursuant to Article 4418f, Vernon's Civil S$etutes, a county is entitled to establisha county ambulance service, for all or part of a county, and td contractwith private ambulance services to **psr** form such services,provided such expendituresto, private parties a0 not contraveneSection 52 of Article III of the Constitutionof Texas. (4) Pursuant to the public health exceptiq of Article 236Sa(2),

Vernon's Civil Statutes,.a county is not required to follow competitive bidding procedures **in** establishinga county ambulance service. Very truly yours, CRAWFORD C. MARTIN Attorney General of Texas

,+y:NOLA WHITE First Assistant -3918-Eon. Clifford Powell,page 8 (M-806)

Preparedby Austin C. Bray, Jr. AssistantAttorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Sam Jones Max Flus

the 8. J. Aronson David Longoria &BADE F. GRIFFIN Staff Legal Assistant
ALFREDWALKER ExecutiveAssistant

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