JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

5121475.2501 

Telex 9101674-1367 

Teleccnier 512/475-0266 

714 Jackson, Suite 700 

Dallas. TX. 75202-4506 

2141742.6944 

4624 Alberta Ave., SUite 160 

El Paso. TX. 79905.2793 

9151533.3464 

1001 Texas, Suite 700 

Houston, TX. 77002-3111 

7131223-5666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5236 

4304 N. Tenth, Suite B 

McAllen, TX. 76501-1665 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205-2797 

5121225.4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

JI:LY 22, 1985 

Honorable William A. Ewert, Jr. 

Kleberg County Attorney 

P. 0. Box 1411 

Kingsville, Texas '78363 

Opinion No. JM-335 

Re: Whether a county must comply 

with the public auction requirements of article 44941, V.T.C.S., 

in order to sell a county hospital in accordance with articles 

44941 and 4437e-2, V.T.C.S. 

Dear Mr. Ewert: 

You have inquired about the procedures Kleberg County must follow 

in selling its county hospital. You have explained that Kleberg 

County has complied with the provisions of a statute that authorizes a 

county to sell a hospital after notice by publication, a public 

hearing and, in tt.is instance, a referendum election approving the 

sale. V.T.C.S. art. 44941. The proposed sale you have described also 

comes within the scope of a statute that authorizes an issuer of 

hospital revenue bonds to sell s "hospital project" to a non-profit 

corporation. V.T.C.S. art. 4437e-2, P5. Your question is whether 

Kleberg County most also comply with article 1577, V.T.C.S., which 

authorizes counties to sell real estate by public auction. 

In our opinion article 1577 is inapplicable when a county sells a 

hospital pursuant to article 44941 or article 4437e-2. Because 

Kleberg County has fulfilled the requirements of both article 44941 

and article 4437e-i., we do not consider whether a county must comply 

with article 4494;: when it sells a hospital pursuant to article 

4437e-2. 

The source of your concern is the statement in several Texas 

cases that a county must comply with article 1577 in order to sell 

real estate. See, e&,Ferguson v. Halsell, 47 Tex. 421. 422 (1877); -- 

Hardin County v. Nona Mills Co., 112 S.W. 822 (Tex. Civ. App. 1908, no 

writ). Such state&ts must be read in their historical context. The 

legal basis for any action by a county must be found in the Texas 

Constitution or st~wtes. Canales v. Laughlin, 214 S.W.Zd 451, 453 

(Tex. 1948). A conveyance of land by a county is void if it is not 

done in a manner I'rescribed by statute. Wilson v. City of Calhoun, 

489 S.W.Zd 393, 397 (Tex. Civ. App. - Corpus Christi 1972, writ ref'd 

n.r.e.). Article lli77 states that counties x sell real estate in 

accordance with its provisions. Absent other authority for selling 

real estate, however, a county must sell real estate in accordance 

with article 1577 or not at all. 15 Tex. Jur. 2d Counties 188. 

p. 1527 
Honorable William A. Ewert, Jr. - Page 2 (JM-335) 

-1 

Clearly, when counties sell real estate by other means authorized by 

the constitution or statutes, compliance with article 1577 is not 

mandatory. See Ferguson v. 'lalsell, 47 Tex. at 422 (1877). - 

Also, both article 445,41 and 4437e-2 authorize something more 

than the sale of real est.ate. Both statutes clearly permit and 

perhaps anticipate the sale of a hospital as a going concern. Such a 

sale would include not on:Ly real property but also tangible and 

intangible personalty. Consequently, article 1577 alone would not be 

sufficient to authorize the sale of a functioning hospital. Indeed, 

in 1969 this office considered whether Wharton County had the 

authority to sell its county hospital. At that time article 1577 

authorized counties to sel:. real estate at public auction, but no 

statute applicable to Whartco County specifically authorized a county 

to sell its county hospital. Finding no authority for the sale, this 

office concluded that Wharton County had no authority to do so. 

Attorney General Opinion M-,048 (1969). See also Attorney General 

Opinion H-668 (1975). SimiLarly, in response to questions regarding 

the lease of a county hospital, this office has consistently looked to 

statutes dealing specifically with the lease of county hospitals, not 

to article 1577, which also gives counties authority to lease real 

estate. Attorney General Opinions H-777 (1976); H-16 (1973). 

Implicit in those opinions is the conclusion that article 1577 does 

not authorize the lease of a county hospital in the absence of 

specific statutory suthorit,y for such a lease. It would be nonsensical to conclude that even though article 1577 does not authorize 

the sale or lease of a cow&y hospital, its provisions are mandatory 

when a county hospital is sald or leased pursuant to another statute. 

The establishment and aiaintenance of hospitals is an important 

and unique county function. Consequently, the legislature has enacted 

a wide range of statutes 5;overning county hospitals. See, e.g., 

V.T.C.S. arts. 4478 throu@;h 4494r-4; V.T.C.S. arts. 4437 through 

4437d. In our opinion a statute that specifically refers to a 

county's power with regard to a county hospital applies to the 

exclusion of a relevant statute that deals with a county's powers 

generally. See State v. .A=, 570 S.W.Zd 122 (Tex. Civ. App. - 

Austin 1978,Twrit). 

SUMMARY 

A county is n#,I: required to comply with the 

public auction ,:equirements of article 1571, 

V.T.C.S., when ii: sells a hospital pursuant to 

article 44941 or rrticle 4437e-2, V.T.C.S. 

JIM MATTOX 

Attorney General of Texas 

D. 1528 
Honorable William A. Ewert, Jr. - Page 3 (JM-335) 

I 

TOM GREEN 

First Assistant Attorney*Genc!ral 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Conrmittee 

Prepared by Sarah Woelk 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1529