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

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

JI:LY 22, 1985

HonorableWilliam A. Ewert, Jr. Kleberg CountyAttorney P. 0. Box 1411 Kingsville,Texas '78363 OpinionNo. JM-335

Re: Whether a countymust comply with the public auction requirements of article 44941,V.T.C.S., in order to sell a county hospital in accordancewith articles 44941 and 4437e-2,V.T.C.S.

DearMr. Ewert:

You have inquiredabout theproceduresKleberg Countymust follow in selling its county hospital. You have explained that Kleberg Countyhas compliedwith theprovisionsof a statute that authorizesa county to sell a hospital after notice by publication, a public hearing and, in tt.isinstance, a referendum election approving the sale. V.T.C.S. art. 44941. The proposed saleyouhave 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 estateby public auction.

In our opinion article 1577 is inapplicablewhen a county sellsa 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 considerwhether a countymust 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 Countyv. NonaMills Co., 112 S.W. 822 (Tex.Civ.App. 1908,no writ). Such state&ts must be read in theirhistorical 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 countiesx 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. 1527HonorableWilliam A. Ewert, Jr. - Page 2 (JM-335) -1

Clearly,when counties sell real estate by other means authorizedby the constitution or statutes, compliance with article 1577 is not mandatory. See Fergusonv. 'lalsell, 47 Tex. at 422 (1877). - Also, both article 445,41and 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:Lyreal property but also tangible and intangiblepersonalty. Consequently, article 1577 alonewould not be sufficient to authorize the sale of a functioninghospital. 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 specificallyauthorized a county to sell its countyhospital. 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 countyhospital, this officehas consistently looked to statutes dealing specificallywith the lease of countyhospitals, 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,yfor 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 countyhospital is sald or leasedpursuant to another statute.
The establishment and aiaintenanceof hospitals is an important and unique county function. Consequently,the legislaturehas enacted a wide range of statutes 5;overningcounty hospitals. See, e.g., V.T.C.S. arts. 4478 throu@;h4494r-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 ,:equirementsof 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 AttorneyGeneral of Texas

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

I TOM GREEN First AssistantAttorney*Genc!ral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral

ROBERT GRAY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Conrmittee Preparedby SarahWoelk AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman Colin Carl SusanGarrison Tony Guillory JimMoellinger JenniferRiggs Nancy Sutton SarahWoelk

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