Dr. George IY. cox State Health Officer &Win, Texas

Dear Sir: OpinionNo. O-25804 Rer Acceptance of a gift by Liberty Countyand opamtion of a clinic or dispensaryes public health and sane ltationmf3(1sure~

Your recent request for an opinion of this Department upon the questions as are herein statedhas been received. Your letter reads in part as follows:

"Sometime ago the HonorableMurphy Cole, Comty Auditor of Liberty County, requested an opinion of your Department relativeto the establishment of a Olinic in Liberty, Texas.

"In your opinion numbered O-2580 you stated that the Commissioners' Court of Liberty Countymay lease the clinic lmildizgs in question ormay accept said buildings by deed as a gift only after the court has been duly authorized to establish andmaintain a county hospital by the majority of the qualifiedtax paying voters of the county at a special election. According to Mr. Cole's letter the faots of the case are these: In 1935 'MissYettie Kersting of Liberty County inspired by an ambition to leave a heritage to the needy of the county, particularlythe sick,made her will dedicating her entire estate to Libertg County and direoting that the proceeds of samebe used for the purpose of constructing a county hospital.
"Since Miss Yettie is still alive and haa recently decided that &hewould like to see at least a partial realization of her ambition before her death, she hasmade a proposition to the Conrmissioners' Court that she would,.

with her ownmoney, constructa-medical clinic building and hold the remainderof her property under her charge and connrol until her death and then the terms of her till would take affect,which would give a group of trustees authority to buy,sell, or trade -- or converther property into cash for theDr. George W. Cox, Page 2 (0-2580-A)

purpose of constructinga hospital. Inview of the fact that this wcmderful gift has been offered, the Commissioners' Court of Liberty County desires to accept the gift of the clinioand provide for the maintenance thereof from county funds. Ronever, it
secrmsfrom your opinion numbered O-2.580that this money couldbe accepted only after the court had been duly authorized to establish andmaintain a county hospital by emajority vote of the qualified voters of the countyet a special election.
"4rticle 4410f of the Revised Civil Statutes is
es followsr *It shellbe lawful for the state Department of Health to acceptdonations end contributions to be expended in the interest of the public health and the enforcement of public health laws, The Cmmissioners' Court of eny county shall have the authority to appropriate end expendmoney from the general rewnues of its county for and in behalf of public health and sanitationwithin its county.'

"In viewof thisparticle,would the Ccmmissioners' Court be authorized to spendmoney for themaintenance of this publio health clinicwithout first establishing
e county hospital? Should it be determined that the county is not authorizedto spendmoney under such 

### oirownstances end that a countyhospitalmust first be established before suchgift couldbe accepted, the following petition has been drafted by more than 10 per cent of the qualifiedproperty tax payingvoters of the county:

"' bb, the undersigned qualifiedvoters residing in Liberty County, Texas, do respectfullypetitionyour Honorable Body to order en election in the saidLiberty County for the purpose of determiningtihetheror not the County shallmaintain from year toyear, togetherwith the State and FederalGovernments, a County owned clinic which shellhave been erected end presented to the County
as a gift, end which shell requireno increase in taxes or no bond election.

my Dated this the 16th day of September,A.D., 1940.'
"Under circumstanceses thesewhere there will te no increase in taxes orno bonds issued,would the Cornmissioners' Court be authorized to cell such en election, and whet procedure would they be required to follow?"Dr. George W. Cox, Page 3 (0-2580-A) , :

The letter of hIr.Cole, referred to above, furnishes the following additional informatioar

"The Liberty-Chambers CountyMedical Association has agreed to cooperateby naming frcpaarraong its oxr membership physicianswho till give a oertain nlanberof hours each weekto the treatment of the indigent sick, end et no expense to the county. ~
"The Federal Government, through the Stete Department of Health, will contributeapproximately ~,OOO.OC per year by employing a physician, e nurse and furnishing medicine for the treatrment of venereal diseases, if a county clinio is established,endmade~available for the purpose. ."~ I_

. "All the other expense of the clinic,,except the :'medioal fees in the treatment of the indigent silk, end for venereal diseases control, esmentioned above, would be borne by Liberty County."
Article 4470, Revised Civil Statutes, 1925, enacted in 1913, (33rdLeg., p. 71), reeds es follows:

"The coremissioners court of any county shell have the power to establish e countyhospital and to enlarge any existing hospitals for the cere andtreetment of. persons suffering from any illness, disease or injury; subject to the provisions of this chapter. At intervals of not less than twelvemonths, ten per cent of the qualified property tax peyingvoters of a aountymey petition such court to provide for the establishing or enlarging of a countyhospital, inwhioh event said courtwithin the time designated in suoh petition shall subunitto such voters et a special or regular eleotionthe proposition of issuing bonds in suoh aggregate amount esmay be designated in saidpetition for the establishing or enlarging of such hospital. 

### Whenevereny such proposition shall receive amajority of the votes of the qualified property tax paying voters et such election, said canmissioners' court shell establish end maintain such hospital and

_ shall have the following powers,
"1. To purahase and lease reel property therefor,
or acquire such reel property, and easements therein, by oondemnatioa prddeedings.

"2e 

### Topurchase or erect all necessary buildings, make all necessary improvementsand repairs and alter any existing buildings, for the use of said hospital.Dr. GeorgeW. Cox, Page 4 (O-2580-&)

The plans for such ereotion, alteration, or repair shall first be approved by the State Health Officer, if his approval is requestedby the said oommissioners* oourt.

'3. To oause to be assessed, levied end colleot- *d, suehtaxes upon the real and personal property 01~1~ ed intie countyes it shall deem necessary to provide the funds for themaintenance thereof,end for all other necessary expenditurestherefor.

"4. To issue C&&y bonds to provide funds for the establishing, enlarging and equipping of said hospital andfor all other necessary permanent improvements in connectiontherewith; to do all other things thatmay be requiredby law in order to render bondsvalid.w "5. To appoint a board ofmanagers for said hospital.

“6. To accept and hold in trust for the county, any grant or devise of land, or any gift or bequest ofmoney 'or other personalproperty of any donation to be applied, principal or income or both, for the benefit of said haspital, and apply the seme in aooordance with the terns of of the gift."
Article 4481; Rwised Civil Statutes, 1925,which was enacted es a portion of the 1913Bat, reeds as follows:

"The board ofmanagers may also establish end operate an outpatient department or free dispensary and olinio at the hospital or inthe city nearest to whichthe hospital is located,with branch dispensaries or 

### cli4cs in every city ortovm in the county of five thousand population and over. They shell appoint a physician or physicians,who shall serve et such dispensaries or clinios, and shell determinethe amount of time required to be spent et suchdispenseries or clinics 'by such physicians, end shall fix the salaries, if eny, of such physicians. ~ Saidboard shall also appoint one ormore trainedvisiting
nurses to serve in conneotionwith each such dispensary or clinic, end in connectionwith the hospital, and shell fix their salarieswithin the limits of the appropriationmade therefor by the oozunissioners' court."
Article 44Df, Vernon's Texas Civil Statutes, quoted inyour letter of request,wes passed in 1927,Acts 40th Leg., 1st C.S., p. 131, oh. 42, 8 10.Dr. George W. Co%, Page 6 (B-2580-A) 

## . (

The Act of which Articles 4470 and 4481 were a part is concerned with the establishsentand operation of a countyhospital and the regulation, service andmanagement in connection therewith. The first Section authorizes the establishsent and enlargement, issuadee of bonds, other incidentalpowers and the aoceptanoeand application of gifts "for the benefit of said hospital.'! Sectnons 2 and 3 provide for a board ofmanagers, superintendent, and staff of visiting physicians. Section 5 provides for the establishent, in connectionwith said hospital; of a special and separate school for the education, care and treatment of children suffering from tuberculosis andmatters relative thereto. Section 6 authorizes the Board of hianagers to securefromthe State Board of Health pamphlets, circularsand bulletins at aotual.costof printing on communicablediseases and distribute same to various~organizations and individuals. Provision ismade for thekeeping of records and accounts;making reports to the Board of Managers and Commissioners' Court; and,the admission anddischarge of patients. Wherever countyhospitals may exist in connectionwith
a countypoor house or on its grounds'the terms of the Act shallapply in likemanner as if the hospitalhadbeen originally establibhedunder the provisions of theAct. Article 4481, quoted above, appears as Se&ion 4 of the Act and authorizes the establishmentand operation of an "outpatient department or free dispensary and clinic' and "branohdispensaries or clnics"by the "Board of Danagem" of the hospital.

It till be noted that Section 4 aswell as other sections of the Act places authority in the Board of %nagereof the hospital to establish
an provide the .particulardepartmentsand servicesmentioned. A careful considerationand examination of the Act as a whole leads us to the conolusion that the legislativepurposewas to enact comprehensiveprovisions for the establishment, operation,government,and management of county hospitals, as such, and to give directions and define the powers and services v.hich might be performed in oonnectionwith, andas a part of the hospital institution.~This being true, it doss not necessarily follow thatwhen the Legislature placed it within the statutorypowers of the hospital or its board ofmanagers todo an act or perform a service,when established, that the county or the commissioners'court could not under its general powers furnish any of the facilities-ordo any of i&e acts which couldbe doneby the hospital or Board rir Managers if such institutionwere established.
Subsequent to the passage of the Act of 1913, the Legislature granted general powers to the ccnssissioners' court in the following language1 .~.

"

. . eThe Commissioners'Court of any county shallhaw the authority to appropriate and expendmoney fromthe gen- ,eralrevenues of its county for and inbehalf of publio health and sanitationwithin its county.’ (Art. 4418f,V.T. , C.S.)Dr. George W. Cox, Page 6 (0-2580-A) .

, No detailed direotion is given es to how such general power shell be exercised but this matter is left largelywithin the discretion of the ccmmissiomsrs' court.

In our opinioh Ro. 'O-2281 we had before us for consideration the question as to whether a particular county could establish a "ooun~ health unit." After pointing out the duties of the County Health Officer and the provisions ofArticle 4538a, Vernon's Texas Civil Statutes, authorizing the Commissioners' Court to employ one ormore Graduate Registered nurses whose duty it is to visit the public schools in the county, investigate the health conditions and sanitary surroundings of such schools. cooneretewith the dulv oreanized Board of Health and local health authorities in general and "perform suchother and further duties asmay 4, n it was ruledr re uired of'them

"Although Seation 10 of the-Act (Article 4418f) doss not expressly authorize the creation of a 'County Health Unit, 1 it does authorize the expenditure of funds from the General Fund of the county for and in behalf of public health and sanitation in the county.

"J.tis. therefore, the opinion of this Department that .&ticle'4418fl Vernon's Civil Statutes, authorizes the Commissioners Court to appropriate and expendmoney from the general fund of.the county for and in behalf of publio heslth end sanitationwithin the county. Such statute does not place eny control or limitation on such expenddtures as to how themoney maybe expended. Such funds expended in cooperationtith the State Health Department in its authorized administration of the health and sanitation laws of the State within the countywould meet the requirement of the Statute. No additional levy of taxes outside of the constitutional limit of twentyfice cents on the hundred dollar valuation (Article 8 of Section 9 of the Constitution) is contemplated or authorized."
When it is reasonably necessary in behalf of the public healthand sanitationwithin the county, it is our opinion that the Cnmaissionars~Court of a countymay appropriate and expendmoney from the generalrevenues,of the county for treatment, consultation andmedical supplieswithout bonds and establishing a hospital,notwithstanding such servicesmight be includedwithin the statutory authority of the hospital if established.

The general rule is that countiesmay take by gift and hold the legal title to property or in trust for a public use or purpose inlessprohibited by statute. 7 R.C.L. p. 947, 5 23; 5 R.C.L. p. 320 et seq; 20 C.J.S.p. 994 et seq. In Scholfv. Collins County (Sup. Ct. lSQl), 16 S.i7.314, a pauper who had been received end treated by the county, prior to the executionof the deed, conveyedher homestead to the county. Itwas contended that thecountyDr. George W. Cox, Page 7 (0-2580-A)

couldnot hold such title against the lawful heirs that at the time the county acquiredtitle itwas not "acquired for sny public purpose, such as a site for a courthouse, jail, etc., and that the same has never been used by the county for any such public use or purpose,except the said Lucretia never changed her residence, but lived upon the land, and vas supportedby the county, under the terms of the deed until she died in 1888, and the county since her death has bsen renting~out said land." The courtheldr

'Deknow of no law that limitsthe powerof counties to acquire title to land to such only as are intended for
usesmentioned inthe third objection. Articles 660-682 of the,pevised Statutes (SeeArticle 1576, R.C.S., 1925) contain
an express recognition of the right of~counties to take title to and enjoy real estate without any limitationbeiag expressed as to the purposes for which it shall be used. vs. Alexander, 22 Tex. 350.” Eel1 county

In hell Countyvs. Alex@ider, (1858) 22 Tex. 351, the test&or left a portion.of his property to one county for the benefit of the public schools and a portion to other counties for the benefit of the suffering poor over the age of forty-five. ItNBS contendedthat the countywas not capable of taking, under the will, the property devised. In overruling the contention and upholding the devise the court stated:

"There is as little doubt of the capacityof the county to take an estate in lands, by grant or devise.

. . . Theymaytake and hold, and disposs of, private property formunicipal uses (Sart. Dig. Art.213, et seq.) or such uses and purposes as subserve the public good, and the exercise of the local and subordinate legislative poxers with Ht:ich they may be invested by the public lea of the state, or by private legislative acts. Angel1 6: Ames Eorp: 30; 2 Kent Corn.275, and notes. Though publio corporations, they have the same capacity inthis respect and to this extent, as a private corporationto take and hold property in trust.

n

. . . The counties are entrusted with the duty, to provide for the support of indigent persons, resident in the county (Hart. Dig. Art. 309): and it cannot be doubted, they are competent to take snd administer a charitablebequest for that purpose,"Dr. George W. Cox, Page 8 (0-2580-A)

Here the Conmissioners'Court is authorizedto appmpriate and enpendmoney and it is made its duty to promotethe publio health and sariitationwithin its county. Itmay be neiessary to furnish consultation, treatment,promote public education in thesematters,and dispensemedicines. It is oti opinion that the Countyacting through the Commissioners' Courtmay accept the gift of a building in furtherance of such purpose and as a central place for its activities. I% do not mean of course that the Coannissioners Courtmay build, establish, equip, andmaintain a oouniy hospital or issue bonds therefor other than as provided by Chapter Five, Title 71, Revised Civ'ilStatutes, 1925. That question is.not before
**US.**

It is our opinion'that the Catnaissioners ' court of Liberty County may spendmoney for the~maintenance of a publichealth clinicwithout first establishing a countyhospital, uuder the factspresented.

Our opinion No. O-2580 is somodified asto conform to the oonclusions herein expressed.

Yoursvery truly
ATTOREEYGEXERM, OF TEX4S

CCC:N:egw BY a/ Cecil C. Camnack Ceoil C. Camaaok Bssistrztt

APPROFED OCT 29, 1940
s/Gerald C. Nann
4TPORNEYGE5ERA.L OF TEX.45 This opinion considered ' and approved in limited conference