Dr. George IY. cox 

State Health Officer 

&Win, Texas 

Dear Sir: Opinion No. O-25804 

Rer Acceptance of a gift by Liberty 

County and opamtion of a clinic or 

dispensary es public health and sane 

ltation mf3(1sure~ 

Your recent request for an opinion of this Department upon the 

questions as are herein stated has been received. Your letter reads in 

part as follows: 

"Sometime ago the Honorable Murphy Cole, Comty 

Auditor of Liberty County, requested an opinion of 

your Department relative to the establishment of a Olinic in Liberty, Texas. 

"In your opinion numbered O-2580 you stated that 

the Commissioners' Court of Liberty County may lease 

the clinic lmildizgs in question or may accept said 

buildings by deed as a gift only after the court has 

been duly authorized to establish and maintain 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 'Miss Yettie Kersting of Liberty County inspired 

by an ambition to leave a heritage to the needy of the 

county, particularly the sick, made her will dedicating her entire estate to Libertg County and direoting 

that the proceeds of same be used for the purpose of 

constructing a county hospital. 

"Since Miss Yettie is still alive and haa recently decided that &he would like to see at least a partial realization of her ambition before her death, 

she has made a proposition to the Conrmissioners' Court 

that she would,. with her own money, construct a-medical 

clinic building and hold the remainder of 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 convert her property into cash for the 
Dr. George W. Cox, Page 2 (0-2580-A) 

purpose of constructing a hospital. In view of the 

fact that this wcmderful gift has been offered, the 

Commissioners' Court of Liberty County desires to 

accept the gift of the clinio and provide for the 

maintenance thereof from county funds. Ronever, it 

secrms from your opinion numbered O-2.580 that this 

money could be accepted only after the court had 

been duly authorized to establish and maintain a 

county hospital by e majority vote of the qualified 

voters of the county et a special election. 

"4rticle 4410f of the Revised Civil Statutes is 

es followsr *It shell be lawful for the state Department of Health to accept donations 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 expend money from the general rewnues of its county for and in behalf of public health 

and sanitation within its county.' 

"In viewof this particle, would the Ccmmissioners' 

Court be authorized to spend money for the maintenance 

of this publio health clinic without first establishing 

e county hospital? Should it be determined that the 

county is not authorized to spend money under such oirownstances end that a county hospital must first be established before such gift could be accepted, the following petition has been drafted by more than 10 per 

cent of the qualified property tax paying voters of the 

county: 

"' bb, the undersigned qualified voters residing 

in Liberty County, Texas, do respectfully petition your 

Honorable Body to order en election in the said Liberty 

County for the purpose of determining tihether or not the 

County shall maintain from year to year, together with 

the State and Federal Governments, a County owned clinic 

which shell have been erected end presented to the County 

as a gift, end which shell require no increase in taxes 

or no bond election. 

my Dated this the 16th day of September, A.D., 1940.' 

"Under circumstances es these where there will te 

no increase in taxes or no 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 County Medical Association 

has agreed to cooperate by naming frcpa arraong its oxr 

membership physicians who till give a oertain nlanber of 

hours each week to the treatment of the indigent sick, 

end et no expense to the county. ~ 

"The Federal Government, through the Stete Department of Health, will contribute approximately ~,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,end made~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, es mentioned above, would 

be borne by Liberty County." 

Article 4470, Revised Civil Statutes, 1925, enacted in 1913, 

(33rd Leg., p. 71), reeds es follows: 

"The coremissioners court of any county shell have 

the power to establish e county hospital 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 twelve months, ten per cent of the qualified property tax peying voters of a aountymey petition 

such court to provide for the establishing or enlarging 

of a county hospital, in whioh event said court within 

the time designated in suoh petition shall subunit to such 

voters et a special or regular eleotionthe proposition 

of issuing bonds in suoh aggregate amount es may be designated in said petition for the establishing or enlarging of such hospital. Whenever eny such proposition shall 

receive a majority 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. 

" 2 e To purchase or erect all necessary buildings, 

make all necessary improvements and repairs and alter 

any existing buildings, for the use of said hospital. 
Dr. George W. 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 requested by 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 county es it shall deem necessary to provide 

the funds for the maintenance thereof, end for all other 

necessary expenditures therefor. 

"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 

connection therewith; to do all other things that may be 

required by law in order to render bonds valid. 

w 

"5. To appoint a board of managers for said hospital. 

“6. To accept and hold in trust for the county, any 

grant or devise of land, or any gift or bequest of money 

' or other personal property 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 1913 Bat, reeds as follows: 

"The board of managers may also establish end operate an outpatient department or free dispensary and olinio at the hospital or in the 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 determine the amount of time required to be 

spent et such dispenseries or clinics 'by such physicians, 

end shall fix the salaries, if eny, of such physicians. ~ 

Said board shall also appoint one or more trained visiting 

nurses to serve in conneotion with each such dispensary or 

clinic, end in connection with the hospital, and shell fix 

their salaries within the limits of the appropriation made 

therefor by the oozunissioners' court." 

Article 44Df, Vernon's Texas Civil Statutes, quoted in your 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 establishsent and operation of a county hospital and the regulation, service and management in connection therewith. The first Section 

authorizes the establishsent and enlargement, issuadee of bonds, other incidental powers and the aoceptanoe and application of gifts "for the benefit of said hospital.'! Sectnons 2 and 3 provide for a board of managers, 

superintendent, and staff of visiting physicians. Section 5 provides for 

the establishent, in connection with said hospital; of a special and 

separate school for the education, care and treatment of children suffering from tuberculosis and matters relative thereto. Section 6 authorizes 

the Board of hianagers to secure fromthe State Board of Health pamphlets, 

circulars and bulletins at aotual.cost of printing on communicable diseases and distribute same to various~ organizations and individuals. Provision is made for the keeping of records and accounts; making reports to 

the Board of Managers and Commissioners' Court; and,the admission and discharge of patients. Wherever county hospitals may exist in connection with 

a county poor house or on its grounds'the terms of the Act shall apply in 

like manner as if the hospital had been originally establibhed under the 

provisions of the Act. Article 4481, quoted above, appears as Se&ion 4 of 

the Act and authorizes the establishment and operation of an "outpatient 

department or free dispensary and clinic' and "branoh dispensaries or 

clnics" by the "Board of Danagem" of the hospital. 

It till be noted that Section 4 as well as other sections of the 

Act places authority in the Board of %nagereof the hospital to establish 

an provide the .particular departments and services mentioned. A careful 

consideration and examination of the Act as a whole leads us to the conolusion that the legislative purpose was to enact comprehensive provisions 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 oonnection with, and as a part of the hospital 

institution.~ This being true, it doss not necessarily follow that when the 

Legislature placed it within the statutory powers of the hospital or its 

board of managers to do 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-or do any of i&e acts which could be 

done by the hospital or Board rir Managers if such institution were established. 

Subsequent to the passage of the Act of 1913, the Legislature 

granted general powers to the ccnssissioners' court in the following language 1 .~. 

" . . e The Commissioners' Court of any county shall haw 

the authority to appropriate and expend money fromthe gen- 

,eral revenues of its county for and in behalf of publio 

health and sanitation within 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 largely within 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 of Article 4538a, Vernon's Texas Civil Statutes, 

authorizing the Commissioners ' Court to employ one or more 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. coonerete with the dulv oreanized Board of Health and local health 

authorities in general and "perform such other and further duties as may 

4, re uired of' them n it was ruledr 

"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.t is. therefore, the opinion of this Department that 

.&ticle'4418fl Vernon's Civil Statutes, authorizes the 

Commissioners Court to appropriate and expend money 

from the general fund of.the county for and in behalf 

of publio heslth end sanitation within the county. Such 

statute does not place eny control or limitation on such 

expenddtures as to how the money maybe expended. Such 

funds expended in cooperation tith the State Health Department in its authorized administration of the health 

and sanitation laws of the State within the county would 

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 health and 

sanitation within the county, it is our opinion that the Cnmaissionars~ Court 

of a county may appropriate and expend money from the general revenues,of the 

county for treatment, consultation and medical supplies without bonds and establishing a hospital, notwithstanding such services might be included within 

the statutory authority of the hospital if established. 

The general rule is that counties may take by gift and hold the legal title to property or in trust for a public use or purpose inless prohibited 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 Scholf v. Collins County (Sup. Ct. lSQl), 16 S.i7. 314, a pauper 

who had been received end treated by the county, prior to the execution of the 

deed, conveyed her homestead to the county. It was contended that the county 
Dr. George W. Cox, Page 7 (0-2580-A) 

could not hold such title against the lawful heirs that at the time the 

county acquired title it was 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 

supported by 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 court heldr 

'De know of no law that limitsthe power of counties 

to acquire title to land to such only as are intended for 

uses mentioned in the third objection. Articles 660-682 of 

the,pevised Statutes (See Article 1576, R.C.S., 1925) contain 

an express recognition of the right of~counties to take title 

to and enjoy real estate without any limitation beiag expressed as to the purposes for which it shall be used. 

vs. Alexander, 22 Tex. 350.” 

Eel1 county 

In hell County vs. 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. It NBS contended that the county was 

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 capacity of the 

county to take an estate in lands, by grant or devise. 

. . . Theymaytake and hold, and disposs of, private 

property for municipal 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 corporation to 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 

charitable bequest for that purpose," 
Dr. George W. Cox, Page 8 (0-2580-A) 

Here the Conmissioners ' Court is authorized to appmpriate and enpend money and it is made its duty to promote the publio health and sariitation within its county. It may be neiessary to furnish consultation, 

treatment, promote public education in these matters, and dispense medicines. It is oti opinion that the County acting through the Commissioners' Court may 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 Court may build, establish, equip, and maintain a 

oouniy hospital or issue bonds therefor other than as provided by Chapter 

Five, Title 71, Revised Civ'il Statutes, 1925. That question is.not before 

US. 

It is our opinion'that the Catnaissioners ' court of Liberty County may 

spend money for the~maintenance of a public health clinic without first 

establishing a county hospital, uuder the facts presented. 

Our opinion No. O-2580 is so modified as to conform to the oonclusions herein expressed. 

Yours very 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