,, ‘, 

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 a hospital building to a non-profit private organization for 

operation as an old folks' 

Dear Sir: home. 

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

"The Navarro County Memorial Hospital 

is under construction and will be ready 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 

a hospital for about thirty years. The 

building is old and in much need of repairs. 

Navarro County has no need for this building and premises in that all equipment and 

furnishings now in the old hospital building will be moved to the new hospital, and 

the old hospital will be entirely abandoned. 

"The Commissioners' Court appointed a 

committee of respectable citizens to investigate the need for a home for the needy, 

aged and senile, and the suitability of the 

P & S Hospital 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 old hospital 

property for such purposes. 

"The county, because of llmited 
Hon. Hal H. Booko,ut, page 2 (v-1457) 

finances, cannot operate such an old 

folks' home, and further, county operation would result In the loss of Old Age 

Assistance checks to those who might desire to take advantage of such a rest 

home. 

"A group of responsible interested 

citizens met and decided to ask the county to sell at a nominal figure or to lease 

for a small monthly rental the old hospital 

premises, the deed or lease to be made to 

Trustees of the Navarro County Old Folks' 

Home, a non-profitable organization to be 

organized and to be governed by Trustees. 

The control of the home will be vested In 

citizens chosen from the county at large, 

and these Trustees may be appointed by'. 

the Commissioners' Court if so desired. 

The institution will be operated and main-, 

tained at no expense to the county and as 

a non-profit organization. 

"The old folks who will live In the 

home will pay a nominal sum for their accomodations when they are,financially able 

to' do so, but none will, be refu,sed admlssion solely because of lack of funds. 

"Either a long term lease ora purchase at private sale at a reasonable-sum 

will be acceptable to those who are willing to underyrite the project. If a lease 

is made, a clause authorizing the,Commissioners' Court to terminate the lease if 

the home is not operated fairly and in compliance with its requirements will be acceptable." 

Then you ask: 

"1 . Whether or not the Commissioners 

Court is empowered to call an election, to 

ascertain whether or not the people of Navarro County desire,the old hospital building 

to be used and operated crlvately as an old 

folks' home. 
, 

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

"2 . Whether or not the Commissioners 

Court of Navarro County can lease the hospital properties for a nominal consideration and restrict the use to an old folks' 

home to be operated privately on a profit 

or non-profit basis. 

“3 . Can property, under Art. 1577, 

be sold with restrictions or stipulations 

in the order of sale that the property be 

used afte: the sale for only philanthropic 

purposes. 

The decisions of the Texas courts have repeatedly held that the commissioners' court is a 

court of limited jurisdiction and has only such powers as are conferred upon it by the statutes and 

Constitution of this State, either by express terms 

or by necessary implication. 

State, 127 Tex. 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 of no statute authorizing a county 

to call an election for such a purpose. Neither is 

there a law which authorizes a county to lease its 

hospital building that is no longer used as a hospital. 

Although Section 2 of Article 1577, V.C.S., authorizes 

certain counties to lease their property, It has no application to Navar o County because of the population 

brackets fixed the ein. 

v-1085 (1950), it E 

In Attorney General's Opinion 

as held that a county which did not 

come within Section 2 of Article 1577 had no authority 

to lease its property. Therefore, both of your first 

two questions are answered in the negative. 

Article 1577, V.C.S., provides in part: 

"Section .l. The Commissioners Court ' 

may, by an order to be entered on its minutes, 

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 

in behalf 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 the 
Hon. Hal II. Hookout, page 4 (V-1457) 

county may have in and to the premises to 

he conveyed. Nothing contained in this 

article shall authorize any Commissioners 

Court to dispose of any lands given, donated or granted to such county for the 

purpose of education in any other manner 

than shall be directed by law." 

The above statute does not authorize a 

private sale of property by a county, but requires 

that it be made 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 is next contended that the order 

of the commissioners' court of Llano county, 

authorizing the land to be sold, and the sale 

thereof to Johnson, was unauthorized, because 

it was.'virtually a donation and disposition of 

'the lands of the co,unty for purposes not authorized by law; and that the order requiring 

the purchaser to erect suitable buildings 

thereon, and to use the same for 10 years 

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 .of its property 

in the manner 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, and which 

they hold in trust for public purposes. The 

order of the court in question, and the deed 

exec,uted to Johnson, show that the property 

was sold for a nominal sum, and that it was, 

in effect, donated to the purchaser 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 to he 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 sale was not the nominal 

sum mentioned in the deed, but was 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 it be used only for philanthropic 

purposes. 

If sale at public a,uction without 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 In question. 

SUMMARY 

There is no law authorizing a county 

to call an election to determine if a countyowned building formerly used as a hospital 

should be leased. Neither is there a law 

which authorizes Navarro County to lease 

such building. Section 1 of Article.:1577, 

V.C.S., req,uires that co,unty real estate 

which is to be disposed of must he sold at 

public auction and without restrictions. 

Ferguson v. Halsell, 47 Tex. 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 in question. 

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