The Attorney General of Texas 

August 17, 1983 

JIM MA rTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 78711-2548 

5121475-2501 

Telex 910/674-1367 

Telecopier 5121475.0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201-4709 

2141742-6944 

4624 Alberta Ave.. Suite 160 

El Paso. TX. 79905-2793 

9151533~3484 

1220 Dallas Ave.. Suite 202 

Houston, TX. 77002-6986 

7131650-0666 

806 Broadway, Suite 312 

hbbock. TX. 79401-3479 

8061747-5238 

4309 N. Tenth. Suite B 

McAllan, TX. 76501-1685 

5121662-4547 

200 Main Plaza, Suite 400 

San Anlonio. TX. 78205-2797 

512/225-4191 

A” Equal OpportunityI 

Affirmative Action Employer 

Honorable Harold R. Schmidt 

Mason County Attorney 

Courthouse 

Mason, Texas 76856 

Opinion No. JM-65 

Re: Whether a county may contribute funds to a privately 

owned hospital 

Dear Mr. Schmidt: 

You have asked if Mason County may provide funds for the general 

operating expenses of a hospital that is owned and operated by a 

private, non-profit corporation. You have also inquired about the 

extent and manner in which the county may compensate a privately owned 

hospital for the care of indigents and for services associated with 

the operation of a volunteer county ambulance program. Mason County 

does not have a county hospital, a hospital authority, or a hospital 

district. We believe that the county may not make a donation or gift 

of its funds to a privately owned hospital’s general operating 

expenses, but the county may contract with a hospital to perform 

services of functions that the county is authorized to provide. 

It is well established that a county may not make a contribution 

of public funds to a facility owned and operated or controlled by a 

private, non-profit corporation. Tex. Const. art. III. 952; art. XI, 

§3. See Attorney General Opinions NW-329 (1981); MW-36 (1979); 

H-1189, H-1123 (1978); H-520 (1975); H-397 (1974); M-661 (1970); 

WW-630 (1959). However, it also is well established that a county may 

contract with private corporations and others to carry out its 

statutory duties to provide for public or governmental purposes. See 

Attorney General Opinions H-1123 (1978); H-912 (1976); H-675 (1975); 

H-127 (1973); M-843 (1971); M-605 (1970); C-334, C-246 (1964). 

A county commissioners court has only the powers that the 

constitution and statutes have conferred on it. Therefore. the 

authority of the commissioners court to make a contract on the 

county’s behalf is strictly limited to the power conferred either 

expressly or by reasonable implication by the constitution and 

statutes. See Tex. Const. art. V, §18; Canales v. Laughlin, 214 

S.W.2d 451,453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 

(Tex. 1941); Attorney General Opinions MW-329 (1981); H-1280 (1978); 

H-912 (1976); H-367 (1974); C-772 (1966); WW-630 (1959); V-173 (1947). 

p. 279 
Honorable Harold R. Schmidt - Page 2 (JM-65) 

Since a county may contract with a private corporation to perform 

services that the county is authorized to perform itself, a primary 

issue 1s whether the county has authority to perform the specific 

service. Without that authority, an expenditure by the county 

constitutes a donation of the county's funds in violation of the 

constitution. See Attorney General Opinions MW-329 (1981); H-1123 

(197%); H-127 (1973). You mention the responsibility of the county to 

provide for the care of indigents and services associated with an 

ambulance program. It is well established that the county must 

provide necessary medical care for its indigents. V.T.C.S. art. 2351, 

$11; V.T.C.S. art. 443%; Attorney General Opinion MW-33 (1979). We 

believe that it also is well established that a county may provide 

ambulance service pursuant to its power regarding public health. Se* 

V.T.C.S. art. 4418f; Attorney General Opinions H-976 (1977); M-845 

(1971); M-806 (1971); M-385 (1969). See also V.T.C.S. art. 2372t. 

Article 4418f. V.T.C.S., grants to the commissioners court of any 

county "the authority to appropriate and expend money from the general 

revenues of its County for and in behalf of public health and 

sanitation within its County." The authority conferred by that 

statute on the commissioners court to expend the county's general 

revenues for public health and sanitation is general in its scope. 

Since article 4418f provides no detailed direction to guide the 

commissioners court in the exercise of this power, it must be guided 

largely by its sound discretion. Prior opinions of this office 

interpreting article 4418f have approved funding by the county of 

numerous services that the commissioners courts have determined would 

aid the sick or deal with public health or sanitation problems, 

including ambulance services, county health units, public health 

clinics, outpatient medical treatment, preventive units, garbage 

disposal, storm sewer connection to a county hospital, and control of 

noxious aquatic weed. Attorney General Opinions H-1280 (197%); H-912 

(1976); M-806 (1971); M-385 (1969); C-772 (1966); O-5670 (1944); 

0-2580-A (1940). The factual determination of specific conditions 

that create a threat to public health and sanitation within the 

meaning of article 4418f should be made by the commissioners court. 

When the commissioners court is granted a power or charged with a 

duty, it has implied authority to exercise broad discretion to 

accomplish the intended purpose. Anderson v. Wood, supra; Madison 

County v. Wallace, 15 S.W.2d 535, 537 (Tex. 1929). The terms and 

conditions of a contract, such as whether a contract should provide 

for payment of a specified amount or reimbursement of documented 

expenses. can be determined by the commissioners court in light of the 

facts known to it. 

However, it is not our opinion that the authority of a county is 

unbridled with respect to the terms of a contract to provide for 

indigents or public health. The extent of the county's expenditure 

p. 280 
Honorable Harold R. Schmidt - Page 3 (JM-65) 

under such an agreement cannot contravene the limitations of article 

III, section 52 of the Texas Constitution. The commissioners court 

may not expend county funds in a manner that amounts to a virtual 

donation. In return for its expenditure, the county must receive an 

adequate consideration. such as a oublic benefit or a service the 

co&y has a duty to provide. See'Sullivan v. Andrews County, 517 

S.W.2d 410, 413 (Tex. Cl". App. 71 Paso 1974, writ ref'd n.r.e.); 

Llano County v. Knowles, 29 S.W. 549, 553 (Tex. Civ. App. 1895, no 

writ). We believe that such a contract should indicate clearly that a 

public purpose is being served. 

SUMMARY 

A county may not donate county funds for the 

operating expense of a privately owned and 

operated hospital but may contract with the 

hospital to perform services that the county is 

authorized to provide. The commissioners court 

has discretionary authority to determine the terms 

and conditions for such a contract that provide 

for adequate consideration to the county and do 

not contravene the limitations of article III, 

section 52 of the Texas Constitution. I 

Very truly your , 

. J-k 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Acting Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Jim Moellinger 

Nancy Sutton 

p. 281