. -

HonorableMurphy Cole CountyAuditor 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 hospitalizationandmedical expenses furnished one under the following circumstances:

"A constablehaving seen a suspicious looking character in the alleys after dark, ordered the man to stop and identifyhimself, and upon his failure so to do, shot theman. 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 injuredman was carried to a private hospital and not to a public institution.

We held in our OpinionNo. O-2179 that the countywas not liable for medical attention furnished a transientwho was injuredwhile riding a freight train,,

even though the county judge attempted to authorize such careprior 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 substantiallya6 follows:

On a certainnight 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 conditionwae discoveredby the Sheriff of Willacy County,who in turn called the County Judge,who direoted that all necessarymedical aid be given to the injuredman, stating that the county would pay the expenses. The Sheriff thereupon called Dr. McCann, a local physician,who upon examination of the injuredman concludedthat an operation was necessary. Therewas no hospital in Willaoy County and **the** sheriff, accompaniedby Dr. McCann, rushed Barbosa to the Valley Baptist Hospitalat 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 fiftyHonorableMurphy Cole, page 2 o-2494

dollars, and eighty-nine dollars, respectively,as their fees for the services renderedby 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 suitswere consolidated and judgmentwas rendered in favor of the plaintiffs for the amount of their respective claims, On appeal to the County Court a like judgment was renderedupon a directedverdict, end Willacy County appealed. The judgmentwas based upon the assumption that Barbosawas a pauper and therefore such a chargeupon the county as to render it the duty of the latter to furnishhim the services for which the suitwas brought; and that the County Judgewas clothedwith authority to bind the countywith his agreement to pay for such services, although it was consideredthat 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 suchmatters 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 countiesor large population.

The judgment of the County Courtwas 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 enlargedupon by unnecessary implication. These powers and duties, in so far as applicablehere are defined in and restrictedby the provisions of Articles 2351 and 4438, Revised Statutes, 1926. InArticle 2351 it is provided that each commissioners'court shall (subdivision 11~)'provide for the support of paupers D.ODresidents of their county,who are unable to support themselvesP,end (subdivision12) 'forthe bural of paupers.* InArticle 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 e0Dato 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 hospitalswithin the county, which provision,by necessary implicetion excludes any duty or authority to send such persons to private hospitals, or to public hospitalswithout the county. Even if Barbosawas within the class defined as 'indigent sick,' the aommissionerspoourtas 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 countywas 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 hospitalwithout the county, at public expense.,..'- -

HonorableMurphy Cole, page 3 o-2494

Inview 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