. ” 

. 

Hon. William Caven 

County Attorney 

Harrison County 

Marshall, Texas 

Dear Mr. Caven: 

Opinion No. 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 requested an opinion of this office in 

answer to the followli~g question: 

"Ie the Commlaslonere' Court of Harrison 

County authorized to enter into a lease agreement 

with the Kahn Memorial kospltal, a private 

corporation, situated in Harrison County, covering 

such space and facilities as 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 Memorial Hospital Is chartered 

as a charitable and benevolent non-profitable lnstltutltin 

organized for the purpose of promoting the general welfare 

of the surrounding cominunlty and furnishes hospital 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 lmplledly conferred upon 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 dxoresslv conferred,uoon the Commissioners' Courts by statute everything tiecessary to make 

lt.efflctual or that may be requisite to 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 lmpllcatlon every other power necessary 

and proper to the execution of 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 

. . ., reeldente of their county, who are 

unable to support themaelves. By the term 

resident a8 uaed hepeln, Is meant a peraon 

who has been a bona fide Inhabitant of 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 supplying them fiauperz7 with food and 

clothing and a houae to stay In, It means 

all that la neaeesary to bodily health.and 

aomfort, and especially does It 'Include prol 

per care, 

8lckne86." 

attention and treatment during 

It can har&ti bke doubted,' particularly In view of 

,the recent advgncementa 1.n medical aclence and equipment, that 

hospltalPzaflon I.8 often necessary for proper care, at,tention 

and treatment during sl.ckneas. Therefore, unleas redtribted 

by the Constitution or 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 

quallfled paupers. Terre11 v. SPark8, supra. 

A county 113 prohlb,lted from enterl,ng Into a joint 

venture with any indlvtdual, aaaociatlon or oorporatlon whatsoever, Tex. Con&.,, Art. Ill, Sec.,52; and from making any 

appropriation or donation, or in anywl~ae loaning It8 oredit 

to any private aorporatlon or &aoclatlqn, Tex. Con&., Art. 

XI, Sea. 3. 

Therefore, a county oo,uld not enter into an agreement providing' for the joint operatlon of such hoepital, nor 

could It purchase equipment for the u8e of euch private hoe 

pltal. However, If a bona fide leaae was exeouted which 

during Ita term placed exclusive domln+on and oontrol of the 

leased premieee in the ~ommlesloners 1 Court such prohibitions 

would not apply. See Attorney General Opinion No. V-173 (1947). 
Hon. Willl~m Caven, page 3 (s-126) 

In Attorney General Opinion No. O-4569 (1942), it 

was held that a county could lease an entire hospital building 

under the provisions of Article 4478, V.C.S., for the establlehment of a county hospital. No reason Is apparent why the 

oounty could not, If in the discretion of the court lese space 

waB needed, likewise lease only a designated part of such 

hoapltal building 80 long as the leaaed premises are under the 

exclusive management and 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 authorized the Commlseionere ' Court to eehd the 

indigent eiok to "publl&" hospltale In the county, and by 

neceeaary lmpllcatlon, excludes any duty or authority to send 

euch persona to private hospitala, or to public hospitals 

without the county. 

"paupers" 

The Court further. recognized a dletinction between 

and "Indigent elck" and a correrpondlng distinction 

In the authorFty to provide for each6 for, after the above 

hold13 In regard to "Indigent sick; the court said: 

"The provleion that' the,Commlssloners' 

Court ehall support 'paupers who are unable to 

support thamselves~ is Inapplicable in 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 dlscuesed and recognized in,Attorney 

s;;;;~l Opinions O-2633 (1940), O-2633A (1941) and R-1538 

. 

It further becomea evident that the Leglalature did 

not intend to limit the authority of the Commlaalonere~ Court 

to "provide for the support of paupera" by Article 4438 when 

it la oonsldered that an originally paased thetie atatutea, now’ 

codified as Artiole 2351, V.C.S., and'Artiole 44 a, 

were both contained In the same enaotment (Ch. 

V.C.S., 

5 2 , General 

Laws of Texae, 15th Legislature, 1876, page 51). The portion . 

oodiiied aa Article 2351(U) appeara as Subaeotion 9 of Section 

4 of euoh Act, while the portion oodlfled a8 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 hoepita P in the 

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 

PauDercq of 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