. - 

Honorable Murphy Cole 

County Auditor 

Liberty County 

Liberty, Texas 

Dear Sir: Opinion No. O-2494 

Re: Liability of county for hospitalization 

and medical expenses. 

You seek an opinion of this department as to the liability of the 

county of Liberty for hospitalization and medical expenses furnished one 

under the following circumstances: 

"A constable having seen a suspicious looking character in the 

alleys after dark, ordered the man to stop and identify himself, and upon 

his failure so to do, shot the man. The victim was then moved to the 

hospital and doctors, nurse8 and others were called in the case, all without the lmowledge of the Commissioners' Court or of the M&riot Attorney." 

We assume for the purpose of this opinion that the injured man was 

carried to a private hospital and not to a public institution. 

We held in our Opinion No. O-2179 that the county was not liable 

for medical attention furnished a transient who was injured while riding 

a freight train,, even though the county judge attempted to authorize 

such care prior to its being furnished. 

We believe that the case of Willaay County ~8. Valley Baptist 

Hospital, et al, 29 SW 2d 456 to be determinative of the question here 

presented. The facts were substantially a6 follows: 

On a certain night in July, 1929, a person by the name of Rifael 

Barboss, a resident of Nillacy County, was struck by an automobile, and 

seriously injured. He lay wounded by the roadside the remainder of the 

night. The next morning his condition wae discovered by the Sheriff of 

Willacy County, who in turn called the County Judge, who direoted that all 

necessary medical aid be given to the injured man, stating that the county 

would pay the expenses. The Sheriff thereupon called Dr. McCann, a local 

physician, who upon examination of the injured man concluded that an operation was necessary. There was no hospital in Willaoy County and the 

sheriff, accompanied by Dr. McCann, rushed Barbosa to the Valley Baptist 

Hospital at Harlingen. in Cameron County, where another physician, ~88 

called in and performed an operation. A few days later Barbosa died es a 

result of his injuries. Afterward the two physicians and the hospital 

filed olaims against the oounty for thirty dollars, one hundred end fifty 
Honorable Murphy Cole, page 2 o-2494 

dollars, and eighty-nine dollars, respectively, as their fees for the 

services rendered by them to Barbosa, The county oomnissioners8 court 

rejected these claims, and the olaimants each filed suit against Willacy 

County, in 8 justice of the peace court. The three suits were consolidated and judgment was rendered in favor of the plaintiffs for the amount 

of their respective claims, On appeal to the County Court a like judgment 

was rendered upon a directed verdict, end Willacy County appealed. The 

judgment was based upon the assumption that Barbosa was a pauper and therefore such a charge upon the county as to render it the duty of the latter 

to furnish him the services for which the suit was brought; and that the 

County Judge was clothed with authority to bind the county with his agreement to pay for such services, although it was considered that the ccrmnissioners ' court as a body, or the commissioners' individually, had taken 

no action to declare Bsrbosa a pauper or to authorize the County Judge to 

so bind them, and no such matters had ever been presented to them. 

Willacy County, with but a little population, had no public or private 

hospital, such as are being operated in counties or large population. 

The judgment of the County Court was reversed and rendered. 

We quote from the above mentioned ease as follows: 

"The powers and duties of county~bommissioners' courts, and the 

obligations of the counties to paupers are fixed by statute, and cannot 

be enlarged upon by unnecessary implication. These powers and duties, in 

so far as applicable here are defined in and restricted by the provisions 

of Articles 2351 and 4438, Revised Statutes, 1926. In Article 2351 it is 

provided that each commissioners' court shall (subdivision 11~) 'provide 

for the support of paupers D.OD residents of their county, who are unable 

to support themselvesP, end (subdivision 12) 'for the bural of paupers.* 

In Article 4438 it is provided that 'if there is a regular established 

public hospital in the county, the commissioners~ court shall provide for 

sending the indigent sick e0Da to such hospitalOe In the latter provision 

the duty and the authority of the commissioners' court to send the indigent sick to hospitals is limited to public hospitals within the county, 

which provision, by necessary implicetion excludes any duty or authority 

to send such persons to private hospitals, or to public hospitals without the county. Even if Barbosa was within the class defined as 'indigent sick,' the aommissionerspoourt as a body, much less the county judge 

acting singularly, was under no duty, and was denied the authority to 

send Barbosa to a hospital, either publia or private, outside the county. 

"Os.e Under the provisions of Article 4438, the county was under 

no duty to send Barbosa to any hospital, there being no public hospital 

in the county, and under the implied restrictions of this provision it is 

doubtful if the county could be bound by the comissloners~ court, oertainly not otherwise, to send him to a hospital without the county, at 

public expense.,..' 
- - 

Honorable Murphy Cole, page 3 o-2494 

In view of the foregoing authority, you are advised that the 

county is not liable under the facts set forth. 

Very truly yours 

ATTORhZY GENERAL OF TEXAS 

By s/Lloyd Armstrong 

Lloyd Armstrong 

Assistant 

APPROVED OCT. 7, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED Opinion Committee By BWB Chairman