,, ‘, PRICE DANIEL ATTORNEY

GENERA,. May 16,

### 1952

Hon. Hal H.Booko,ut Opinion No. 

### v-1457 County Attorney Navarro County Corsicana, Texas Re: Authority of the Commissioners'Court to lease or sell ahospital building to anon-profit private organization for operation as an old folks' home. Dear Sir:

You have requested an opinion of this office inwhich you submit the following facts:

"TheNavarro County Memorial Hospital is under construction andwill beready for
use as a County Hospital In July, 1952. When the new hospital is completed and is occupied, Navarro County will no longer have need for the old Physicians' & Surgeons' Hospital building and premises.

"The old P& S Hospital has been operated as a county institution and as ahospital for about thirty years. The building is old and inmuch need ofrepairs. Navarro County has no need for this building and premises in that all equipment and furnishings now in the oldhospital buildingwill bemoved to the new hospital, and the oldhospital will be entirely abandoned.

"TheCommissioners' Court appointed a committee of respectable citizens to investigate the need for ahome for theneedy, aged and senile, and the suitability of the P& SHospital property for such purposes. The committee, after a thorough investigation, reported that there existed in this county a great need for such an institution and recommended the use of the oldhospital property for such purposes.
"The county, because of llmitedHon. Hal H.Booko,ut,page 2 (v-1457)

finances, cannot operate such an old folks' home, and further, county operationwould result In the loss of OldAge Assistance checks to those who might desire to take advantage of such a rest home.

"Agroup ofresponsible interested citizens met and decided to ask the county to sell at anominal figure or to lease for a small monthly rental the old hospital premises, the deed or lease tobe made to Trustees of theNavarro County Old Folks' Home, a non-profitable organization to be organized and tobe governed by Trustees. The control of thehome will be vested In citizens chosen from the county at large, and these Trustees may be appointed by'. the Commissioners' Court if sodesired. The institution will be operated and main-, tained at no expense to the county and as anon-profit organization.

"The old folks whowill live In the home will pay anominal sum for their accomodations when they are,financially able to'do so, but nonewill,be refu,sedadmlssion solely because of lack of funds.
"Either a long term lease ora purchase at private sale at areasonable-sum will be acceptable to those who arewilling to underyrite the project. If a lease ismade, a clause authorizing the,Commissioners' Court to terminate the lease if the home isnot operated fairly and in compliance with its requirements will be acceptable."
Then you ask:

"1

. Whether ornot the Commissioners Court is empowered to call an election, to ascertain whether ornot the people ofNavarro County desire,the oldhospital building to be used and operated crlvately as an old folks' home.,

Hon. Hal H. Bookout, page 3 (V-1457)

"2

. Whether ornot the Commissioners Court ofNavarro County can lease thehospital properties for anominal consideration and restrict the use to an old folks' home tobe operated privately on aprofit
ornon-profit basis.

“3

. Can property, underArt. 1577, be soldwith restrictions or stipulations in the order of sale that the property be used afte: the sale for only philanthropic purposes.
The decisions of theTexas courts have repeatedly held that the commissioners' court isa court of limited jurisdiction andhas only such powers as are conferred upon itby the statutes and Constitution of this State, either by express terms or by necessary implication. State, 127Tex. 343, 92 S.W.2 ;Von Rosen173 S.W. 508 (Tex.Civ. App.1915,

APP. 1925). Hall, 280 S.W. 289r(Tex. Civ.

We know ofno statute authorizing a county to call an election for such a purpose. Neither is there a lawwhich authorizes a county to lease its hospital building that isno longer used as ahospital. Although Section 2 ofArticle 1577,V.C.S., authorizes certain counties to lease their property, Ithas no application toNavar oCounty because of the population brackets fixed the ein. v-1085 (1950), itE InAttorney General's Opinion
asheld that a county which did not comewithin Section 2 ofArticle 1577had no authority to lease its property. Therefore, both ofyour first two questions are answered in the negative.

Article 1577,V.C.S., provides inpart:
"Section.l. The Commissioners Court ' may, by an order to be entered on itsminutes, appoint a commissioner to sell and dispose of any real estate of the county at public auction. The deed of such commissioner, made in conformity to such order for and inbehalf of the county, duly acknowledged and proven and recorded shall be sufficient to convey to the purchasers all the right, title, and interest and estate which theHon. Hal II.Hookout, page 4 (V-1457)

county may have inand to the premises to he conveyed. Nothing contained in this article shall authorize any Commissioners Court to dispose of any lands given, donated orgranted to such county for the purpose of education inany other manner than shall be directed by law."

The above statute does not authorize a private sale ofproperty by a county, but requires that it bemade at public auction. Ferguson v. Halm, 47 Tex. 421 (1877). Moreover, in Llano Count
v. Johnson, 29 S.W. 56 (Tex.Civ. App. stated:

"It isnext contended that the order of the commissioners' court of Llano county, authorizing the land tobe sold, and the sale thereof to Johnson, was unauthorized, because itwas.'virtuallya donation and disposition of 'the lands of the co,untyfor purposes not authorized by law; and that the order requiring the purchaser to erect suitable buildings thereon, and to use the same for 10years for educational purposes, was imposing and, attaching to the purchase of the property illegal conditions, which were calculated to deter bidders, and to defeat the policy of the law requiring counties to only dispose of their real estate at public auction to the highest and best bidder therefor.

. . . The commissioners' court of the county occupy towards its property a trust relation, and they can only dispose .ofitsproperty in themanner required by law, and for purposes that are in keeping with the trust they represent. They have no right to donate the county property or dispose of it so as to virtually amount to a donation. It is a trust estate, and principles of equity will not permit them to be liberal and generous with property they do not own, andwhich they hold in trust for public purposes. The order of the court in question, and the deed exec,utedto Johnson, show that the property was sold for anominal sum, and that itwas, in effect, donated to thepurchaser for educational purposes. This was clearly unauthorized. The property, so the deed recites,Hon. Hal H. Bookout, page 5 (V-1457)

was sold under the semblance of a p,ublic sale, to the highest bidder; but, being sold under the order set out, that required it tohe sold and used for educational purposes, was well calculated to deter and hinder
a sale of the property for a fair price; and the conclusion is irresistible that;the consideration for the salewas not the nominal
sum mentioned in the deed, butwas the use of the property for educational purposes. 11

. . .
In view of the foregoing, it is our opinion that the county cannot sell property with the restriction that itbe used only for philanthropic purposes.
If sale at public a,uctionwithout restrictions will not accomplish the purpose desired by the co,unty,it is suggested that this matter be called to the attention of the Legislature to the end that appropriate legislation may be enacted authorizlng the leasing of the property Inquestion.

SUMMARY
There isno law authorizing a county to call an election to determine if a countyowned building formerly used as ahospital should be leased. Neither is there a law which authorizes Navarro County to lease such building. Section 1ofArticle.:1577, V.C.S., req,uiresthat co,untyreal estate which is to be disposed ofmust he sold at public auction andwithout restrictions. Ferguson v. Halsell, 47Tex. 421 (1877); Llano County v. Johnson, 29 S.W. 56 (Tex. Civ. App. 1895). An act of the Legislature would be required in order to authorize the leasing of the property inquestion.

APPROVED:

J.C. Davis, Jr.
Mary K. Wall Reviewing Assistant Charles D. Mathews First Assistant Yours very truly,

PRICE DANIEL Attorney General

BY&&&&

BA:mh Assistant