. ”

.

Hon. William Caven

County Attorney Harrison County Marshall,Texas

Dear Mr. Caven: OpinionNo. S-126
Re: Authority of a county to leaab apace and facilities from a pl'lvate

hospital for the purpose of hospitalizing county paupere. You have requestedan opinion of this office in answer to the followli~g question:
"Ie the Commlaslonere' Court of Harrison County authorizedto enter into a lease agreement with the Kahn Memorialkospltal,a private corporation,situated in HarrisonCounty, covering such space and facilitiesas would be necessary In the care of paupers,whe~re it Is shown that hi%pltallzatlon

Is needed."
You state that there le no County Hoapltal In Harrison County a"nd that Kahn MemorialHospital Is chartered as a charitableand benevolentnon-profitable lnstltutltin organized for the purpose of promotingthe general welfare of the surroundingcominunlty and furnisheshospital facllltles to the general public.

Commlsslon&s' Court6 In this state are courts of limited jurisdiction and have only such powers as are expressly or lmplledlyconferredupon them by law. Chlldress County v. State, Rosenberg v. Lc 127 Tex. 343. 92 S.W.2d 1011 (193m; Van error ref.). Wheneve:

;is; 173 S~.W~.-5b8 (Tex.Clv,App.

1915; ' r a Dower ie dxoresslvconferred,uoon the Commissioners'

Courts by statute everythingtiecessary to make lt.efflctual

or that may be requisiteto Bttaln lte erid is ~%t3"'$~ 521 (1911): 'Yhe grant of an express power carries

As stated In Terre11 v, Sparks, 104 Tex. 191, 135 with It iy necessary lmpllcatlonevery other power necessary and proper to the executionof 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.

part: Article 2351,Vernon's Civil Statutes;provides $n

"Each Commleslonere Court ehall: "11. Provide for the support of paupers

. . ., reeldenteof their county,who are unable to support themaelves. By the term residenta8 uaed hepeln, Is meant a peraon who has been a bona fide Inhabitantof the county not less than six montSfe and 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,~meana more than supplyingthem fiauperz7 with food and clothingand a houae to stay In, It means all that la neaeesaryto bodily health.and aomfort,and especiallydoes It 'Include prol per care, 8lckne86."

attentionand treatmentduring

It can har&ti bke

doubted,'

particularlyIn view of ,the recent advgncementa1.n medical aclence and equipment,that hospltalPzaflon

I.8 often necessary for proper care, at,tention and treatmentduring sl.ckneas.Therefore,unleas redtribted by the Constitutionor Borne other statute, the Commlaslonere' Court would have broad dlscretlonary power! In regard to the method and means to be used In furnlahing hospital care.to quallfledpaupers. Terre11 v. SPark8, supra.

A county 113

prohlb,lted

from enterl,ng

Into a joint venturewith any indlvtdual, aaaociatlonor oorporatlonwhatsoever,Tex. Con&.,, Art. Ill, Sec.,52; and from making any appropriation

or donation,or in anywl~ae loaning It8 oredit to any privateaorporatlonor &aoclatlqn, Tex. Con&., Art. XI, Sea. 3.

Therefore,a county oo,uld not enter into an agreement providing'

for the joint operatlonof such hoepital,nor could It purchaseequipmentfor the u8e of euch private hoe pltal. However, If a bona fide leaae was exeoutedwhich during Ita term placed exclusive domln+onand oontrol of the leased premieee in the ~ommlesloners 1 Court such prohibitions would not apply. See Attorney General OpinionNo. V-173 (1947).Hon. Willl~m Caven, page 3 (s-126)

In Attorney General OpinionNo. O-4569 (1942), it was held that a county could lease an entire hospitalbuilding under the provisionsof Article 4478, V.C.S., for the establlehmentof a county hospital. No reason Is apparentwhy the oounty could not, If in the discretionof the court lese space waB needed, likewise lease only a designatedpart of such hoapltalbuilding 80 long as the leaaed premisesare under the exclusivemanagementand control of the county.

Article 4438, V.C.S., provides: "If there 18 a regular established public hoepltal In the county, the commlsaloners court 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 authorizedthe Commlseionere ' Court to eehd the indigent eiok to "publl&"hospltale In the county, and by neceeaary lmpllcatlon,excludes any duty or authorityto send euch persona to privatehospitala,or to public hospitals without the county.
"paupers"The Court further. recognizeda dletinctionbetween and "Indigentelck" and a correrpondlng distinction In the authorFty to provide for each6 for, after the above hold13 In regard to "Indigentsick; the court said:

"The provleionthat' the,Commlssloners' Court ehall support 'paupers who 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 dlscuesedand recognized in,Attorney s;;;;~lOpinions O-2633 (1940),O-2633A (1941) and R-1538

. It further becomea evident that the Leglalaturedid not intend to limit the authority of the Commlaalonere~ Court to "providefor the support of paupera"by Article 4438 when it la oonslderedthat an originallypaased thetie atatutea,now’ codifiedas Artiole 2351, V.C.S., and'Artiole44 a, were both contained In the same enaotment (Ch. V.C.S., 52 , General Laws of Texae, 15th Legislature,1876, page 51). The portion

. oodiiiedaa Article 2351(U) appeara as Subaeotion 9 of Section 4 of euoh Act, while the portion oodlfleda8 Article 4438. .

Hon. Wllllam Caven, page 4 (S-126)

.

appears as Seation 21 of the same Act.

“It eeey evident that the Leglslatu$e bx the Me M the word puw In Subaectlon 9~ of Section 4, and by uee of the worda ,lndlgent slok” in Section 21 of the Act recognized and Intended that the rorde be given different rheanlnw, and the mandatory duty plaoed on the Commlesioners’ Court to provide for the support of paupera by Section 4 iiae neither moQl?led nor limited by the provisions ot:SBotion 21 which only require the Court to ,“proviQe fdr the Indigent siok In their oounty by sending such aiok persons to a hos ltal” in oaee there In a regular det+bllshe& public in the hoepita P county. It Ie therefore the oi&nloh of thle bfftce that the CouunUEionera~ Court of Harrison County rould be authorlred to enter into a lease (rgreement uith the Xahn Memorial Hoepital, a priirate oorgoration, altuated in Harrtaon County, Sor rwh spaoe and raollltlea aa the Commlralon&bL Court deema reasonably neoe$eary for the support,aqd hospitallsdtlon ‘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 3 PauDercqof the oounf;y, Art. .23!51, 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