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June 27, 1989

Honorable Joe Lucas El Paso County Attorney City-County Building, #201 El Paso, Texas 79901

DearMr. Lucas: Opinion No. JM-1064
Re: Authority ofa commissioners court to remove a member of the' board of managers ofahospital district created under article 4494n, V.T.C.S. (RQ-1622)

You ask two questions regarding the removal of amember of the board of managers of acounty hospital district. First you askwhether 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 himwith 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 5of that article provides for the appointment ofaboard ofmanagers as follows:

The Commissioners Court shall aonoint a Board ofHospital Managers, consisting of not less than five (5) normore than seven (7) members, who shall serve foraterm of two (2) years, with overlapping terms ifdesired, and with initial appointments to terms of office arranged accordingly, without pay, and whose duties shall be to manage, control and administer thehospital orhospital system of the Hospital District. (Emphasis added.)
V.T.C.S. art. 4494n, 55. 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. InAttorney General Opinion M-409 (1969),this office found that a member of a board of managers 

### ofahospital district created under article 4494n, V.T.C.S., holds aposition ofhonor and trust under article XVI, section 33, of the Texas Constitution. That opinion stopped short ofdeclaring that theposition isan office, because that conclusion was not required forthe purposes of the opinion. We have considered the powers vested in the board ofmanagers andhave concluded that suchmanagers are public officers.
In the earlier opinion, this office relied on the classic definition of l'office,*lwhich distinguishes an office from an employment inthat 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, 54,at 692-693. The deletion of that language in 1955 reflects a legislative intent tomake theboard more independent of the commissioners court and to change membership on the board from one ofagency or employment to that of an office. See Acts 1955, 54th Leg., ch. 257, g 5,at 719. That interpretation isreinforced by the emergency clause inthe bill, which based the emergency on "[t]he factthat the present lawsdo not provide sufficient details as to the powers, duties, responsibilities and methods of creation and of operation ofHospital Boards . . . .I*Id. 5 17, at 722. The county commissioners court retains some control over thebusiness of the district, for example, by approving itsbudget 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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making the board responsible to the commissioners court, authorizes the board of managers tomanage, control and administer thehospital orhospital system. That section also authorizes the board to sue and be sued, appoint hospital staff, hire an administrator, commission peace officers, and keep itsown 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 ofgovernment largely independent of the control ofothers, and that the managers arepublic officers. SeeArseneau v. Tarrant Countv HOSD. Dist., 408 S.W.2d 802 (Tex. Civ.App. - FortWorth 1966, writ ref'd n.r.e.) (publichospital isperforming governmental function inproviding medical care to indigents). Having determined that the district's managers are public officers, we can answer your first question. It has longbeen established inTexas law thatwhere an officer has a set term, asopposed to serving at the pleasure of the appointing authority, the appointee is not subject to removal at thewill 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 fora term of twoyears. APPlYiw the rule set out inRovston, themanagers are not subject to removal without cause by the commissioners court which appoints them. V.T.C.S. art. 4494n, §5.
Inthe alternative, you ask whether a member of the Board ofManagers of the El Paso County Hospital District is a "county officer" and subject to removal under the provisions ofarticle V, section 24, of the Texas Constitution and section 87.011 et sea. of the Local Government Code. Article V, section 24, ofthe 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 theJudges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law,upon the cause

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therefor being set forth inwriting and the finding of itstruth 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, 54. The county electorate authorizes the creation of the district. The district's tax base is identical to that of the county. The boundaries 

### ofthe district are the same as those of the county, thus limiting the geographical area inwhich theboard ofmanagers fulfills its governmental purpose of providing medical care to the indigent.

.;V.T.C.S. art. 4494n, § 1. See id 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 iscounty officer within removal provision); Hendericks v. State, 49 S.W. 705 (Tex. Civ.App. 1899,no writ) (school district trustee iscounty officer within removal provision). Finally, asnoted above, the county commissioners court retains some control over the affairs of the district. In addition to appointing theboard ofmanagers, V.T.C.S. art. 4494n, 5 5,the county commissioners court has the duty to levy a tax forthe district. Id. 5 2. The commissioners court alsomay prescribe purchasing and accounting procedures, id. 5 6,and it must approve the district's budget. Id. 5 8. While atone time theboard 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 thatmembers ofaboard ofmanagers 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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SUMMARY Members ofaboard ofmanagers of acounty hospital district established under article 4494n, V.T.C.S., are county officers and subject to removal under the terms ofarticle V, section 24, of the Texas Constitution and chapter 87of the Local Government Code.

JIM MhTTOX Attorney General of Texas
MARY KELLER FirstAssistant Attorney General
LOUMCCREARY 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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