# TheAttorney General ofTexas

August 17, 1983 JIM MArTOX Attorney General

Supreme Court Building P.0. BOX 12546 Austin. TX. 78711-2548 5121475-2501 Telex 910/674-1367 Telecopier 5121475.0266

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A” Equal OpportunityI Affirmative Action Employer Honorable Harold R. Schmidt Mason County Attorney Courthouse Mason, Texas 76856 Opinion No.JM-65

Re: Whether acountymay contribute funds to a privately ownedhospital

DearMr. Schmidt:

You have asked ifMason Countymay 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 andmanner inwhich the countymay compensate aprivately owned hospital for the care of indigents and for services associated with the operation of avolunteer county ambulance program. Mason County does not have a county hospital, a hospital authority, or ahospital district. Webelieve that the county may notmake adonation 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 thecounty isauthorized toprovide.

It iswell established that a county may notmake 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, italso iswell established thata countymay contract with private corporations and others to carry out its statutory duties toprovide forpublic 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. 279Honorable Harold R. Schmidt -Page 2 (JM-65)

Since acountymay contract with aprivate corporation toperform 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). Youmention theresponsibility 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 iswell established that a county may provide ambulance service pursuant to itspower 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). SeealsoV.T.C.S. art. 2372t.

Article 4418f. V.T.C.S., grants tothe commissioners court ofany county "theauthority toappropriate and expendmoney from thegeneral 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 thispower, itmust 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 toa 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 ofarticle 4418f shouldbemade by the commissioners court.

When the commissioners court isgranted apower or chargedwith 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. canbedetermined by the commissioners court in light ofthe factsknown toit.

However, it isnot our opinion that theauthority ofa 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. 280Honorable 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). Webelieve that suchacontract should indicate clearly thata public purpose isbeing 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 hasdiscretionary authority todetermine theterms and conditions for such a contract that provide for adequate consideration to the county and do not contravene the limitations of article III, section 52oftheTexas Constitution. I
Very trulyyour ,

. 

# J-k

JIM MATTOX Attorney General ofTexas

TOMGREEN FirstAssistant Attorney General

DAVID R.RICHARDS Executive Assistant Attorney General
Prepared byNancy Sutton Assistant Attorney General

APPROVED: OPINION COMMITTEE
RickGilpin, Acting Chairman JonBible David Brooks Colin Carl JimMoellinger Nancy Sutton

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