. 

June 27, 1989 

Honorable Joe Lucas 

El Paso County Attorney 

City-County Building, #201 

El Paso, Texas 79901 

Dear Mr. Lucas: 

Opinion No. JM-1064 

Re: Authority of a commissioners court to remove a 

member of the' board of 

managers of a hospital district created under article 

4494n, V.T.C.S. (RQ-1622) 

You ask two questions regarding the removal of a member 

of the board of managers of a county hospital district. 

First you ask whether the County Commissioners Court of El 

Paso County has the authority to remove, without cause, a 

member of the Board of Managers of El Paso County Hospital 

District and replace him with another appointee. 

You tell us that the El Paso County Hospital District 

[hereinafter the district] was created pursuant to article 

4494n, V.T.C.S. Section 5 of that article provides for the 

appointment of a board of managers as follows: 

The Commissioners Court shall aonoint a 

Board of Hospital Managers, consisting of not 

less than five (5) nor more than seven (7) 

members, who shall serve for a term of two (2) 

years, with overlapping terms if desired, and 

with initial appointments to terms of office 

arranged accordingly, without pay, and whose 

duties shall be to manage, control and 

administer the hospital or hospital system of 

the Hospital District. (Emphasis added.) 

V.T.C.S. art. 4494n, 5 5. Neither that section nor any 

other section of article 4494n provides for the removal of 

managers. 

In answering your question, we must first decide 

whether the managers of county hospital districts are 

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officers or employees. In Attorney General Opinion M-409 

(1969), this office found that a member of a board of 

managers of a hospital district created under article 4494n, 

V.T.C.S., holds a position of honor and trust under article 

XVI, section 33, of the Texas Constitution. That opinion 

stopped short of declaring that the position is an office, 

because that conclusion was not required for the purposes of 

the opinion. We have considered the powers vested in the 

board of managers and have concluded that such managers are 

public officers. 

In the earlier opinion, this office relied on the 

classic definition of l'office,*l which distinguishes an 

office from an employment in that the former involves the 

exercise of any sovereign function of government for the 

benefit of the public largely independent of the control of 

others. Attorney General Opinion M-409 (1969) at 2; see 

f&g Aldine IndeD. School Dist. v. Standley 280 S.W.2d 578 

(Tex. 1955); Dunbar v. Brazoria'Countv, 224'S.W.2d 73% (Tex. 

Civ. App. - Galveston 1949, writ ref'd). 

When article 4494n was originally enacted, the 

following provision prevented the board from functioning 

"largely independent of the control of others": 

The Board shall be responsible to the 

Commissioners Court for the operation of the 

hospital, and individual members may be 

removed for cause. 

Acts 1953, 53d Leg., ch. 266, 5 4, at 692-693. 

The deletion of that language in 1955 reflects a legislative intent to make the board more independent of the 

commissioners court and to change membership on the board 

from one of agency or employment to that of an office. See 

Acts 1955, 54th Leg., ch. 257, g 5, at 719. That interpretation is reinforced by the emergency clause in the bill, 

which based the emergency on "[t]he fact that the present 

laws do not provide sufficient details as to the powers, 

duties, responsibilities and methods of creation and of 

operation of Hospital Boards . . . .I* Id. 5 17, at 722. 

The county commissioners court retains some control 

over the business of the district, for example, by approving 

its budget and intergovernmental contracts and by prescribing purchasing and accounting procedures. V.T.C.S. 

art. 4494n, §§ 5, 6, 8. Section 5 of the act, without 

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Honorable Joe Lucas - Page 3 (JM-1064) 

making the board responsible to the commissioners court, 

authorizes the board of managers to manage, control and 

administer the hospital or hospital system. That section 

also authorizes the board to sue and be sued, appoint 

hospital staff, hire an administrator, commission peace 

officers, and keep its own seal. Additionally, section 9 

authorizes the district to exercise the power of eminent 

domain. 

For these reasons, we believe that the board of 

managers exercises sovereign functions of government largely 

independent of the control of others, and that the managers 

are public officers. See Arseneau v. Tarrant Countv HOSD. 

Dist., 408 S.W.2d 802 (Tex. Civ. App. - Fort Worth 1966, 

writ ref'd n.r.e.) (public hospital is performing governmental function in providing medical care to indigents). 

Having determined that the district's managers are 

public officers, we can answer your first question. It has 

long been established in Texas law that where an officer has 

a set term, as opposed to serving at the pleasure of the 

appointing authority, the appointee is not subject to 

removal at the will of the appointing authority. Dorenfield 

v. State, 73 S.W.2d 83 (Tex. 1934); Rovston v. Griffin, 42 

Tex. 566 (1875). As noted above, managers of county 

hospital districts established under article 4494n, 

V.T.C.S., are appointed for a term of two years. APPlYiw 

the rule set out in Rovston, the managers are not subject to 

removal without cause by the commissioners court which 

appoints them. V.T.C.S. art. 4494n, § 5. 

In the alternative, you ask whether a member of the 

Board of Managers of the El Paso County Hospital District is 

a "county officer" and subject to removal under the provisions of article V, section 24, of the Texas Constitution 

and section 87.011 et sea. of the Local Government Code. 

Article V, section 24, of the Texas Constitution reads 

as follows: 

County Judges, county attorneys, clerks of 

the District and County Courts, justices of 

the peace, constables, and other county 

officers, may be removed by the Judges of the 

District Courts for incompetency, official 

misconduct, habitual drunkenness, or 

other causes defined by law, upon the cause 

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Honorable Joe Lucas - Page 4 (JM-1064) 

therefor being set forth in writing and the 

finding of its truth by a jury. 

There are several factors that lead us to believe that 

county hospital district managers are included in this 

constitutional provision as "other county officers." 

First, the hospital district is generally defined in 

terns of the county. The constitutional provision 

authorizing the creation of these districts authorizes the 

creation of "county-wide Hospital Districts." Tex . Const. 

art. IX, 5 4. The county electorate authorizes the creation 

of the district. The district's tax base is identical to 

that of the county. The boundaries of the district are the 

same as those of the county, thus limiting the geographical 

area in which the board of managers fulfills its governmental purpose of providing medical care to the indigent. 

See id .; V.T.C.S. art. 4494n, § 1. 

Second, persons holding other positions that are 

denominated as *'district" positions have been found to be 

"other county officers" within the terms of the constitutional provision. See Enaleman Land Co. v. Donna Irriaation 

Dist. No. 1, 209 S.W. 428 (Tex. Civ. App. - San Antonio 

1919, writ ref'd) (director of irrigation district is county 

officer within removal provision); Hendericks v. State, 49 

S.W. 705 (Tex. Civ. App. 1899, no writ) (school district 

trustee is county officer within removal provision). 

Finally, as noted above, the county commissioners court 

retains some control over the affairs of the district. In 

addition to appointing the board of managers, V.T.C.S. art. 

4494n, 5 5, the county commissioners court has the duty to 

levy a tax for the district. Id. 5 2. The commissioners 

court also may prescribe purchasing and accounting procedures, id. 5 6, and it must approve the district's budget. 

Id. 5 8. While at one time the board of managers was 

completely responsible to the commissioners court for the 

operation of the hospital district, the legislature has 

retained these significant ties between the district and the 

county. 

We conclude that members of a board of managers of a 

county hospital district established under article 4494n, 

V.T.C.S., are county officers, and, as such, they are 

subject to removal under the terms of article V, section 24, 

of the Texas Constitution and chapter 87 of the Local 

Government Code. 

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Honorable Joe Lucas - Page 5 (JM-1064) 

SUMMARY 

Members of a board of managers of a county 

hospital district established under article 

4494n, V.T.C.S., are county officers and 

subject to removal under the terms of article 

V, section 24, of the Texas Constitution and 

chapter 87 of the Local Government Code. 

JIM MhTTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

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