GENERAL THE ATTORNEY



### OF TEXAS

Honorable Clyde Boose Nolan County Attorney P. 0. Box 1200 Sweetwater, Texas OpinionNo. WW-1332
Re: Whether the Commissioners' Court of Nolan County may legally approve expendltures for a hospital laundry under the stated facts and Dear Mr. Boose: related questions.

Your request for opinion from this office reveals that in 1956Nolan County and the City of Sweetwater entered Into a joint agreement for the operation of a city-countyhospital, pursuant to Article 44941 of Vernon's Civil Statutes.

Two pertinentparagraphs of this agreement state as follows: "9

. It is stipulated that the City shall have right to remove for cause any member of the Board of Managers appointed by the City Commission; the County CommlsslonersCourt shallhave the right to **remove** for cause any member of the Board of Managers appointedby the County; the member of the Board of Managers appointed jointlyby the City and County shall be removable for cause by the joint **action** of the City Commission of the City of zy;i&;;er and the Commissioners Court of County

II

. . . 

### “14. It is speclficallvanreed that the Board of Manaaers shallnot make any exDenditurenot covered bs its budget as approvedby the Clts and County **exceDt** with the specific Dermlsslon and consent of the Cltv Commission of the Clts of Sweetwater and the CommissionersCourt of Nolan Counts, Texas." (Emphasisadded) Further facts are that the Board of Managers recently expended close to $30,000.00 for the construction and equipping of a hospital laundrywhich was an unbudgeted Item. No permlssion was obtained from either the City Commission or the

. .Honorable Clyde Boose, Page 2 (WW-1332)

Commissioners'Court. the building, but wereBids were advertisedand received on

_ _ . -.. not on tne laundryequipment. It 1s further slgnlflcantthat **in** October of 1961, the Commissioners' Court of Nolan County approved the budget for the hospital which did not include the laundry.

You then ask the followingthree questions: "(1) Can'the CommissionersCourt of Nolan County legally approve these expendituressince the building was not a budgeted Item nor was any single Item of the laundry equipment shown In their budget, and no permissionof any kind was sought or obtained from eithergovernmentalunit. "(2) Would the City and County be liable for these expendituresnot authorizedby the hospital budget or any other form of authorization from the governmentalunits? Would such action on the part of the Board of Managersbe **cause** for their removal as board members?
" 3) In regard to AttorneyGeneral's Opinion No. A ~6 3 dated 1948, couldyou adviseme what would be Included in materialsand supplies in excess of $150.00and what wouldbe meant by contracts in excess of $2,000.00?" Article 44941 provides in part as follows: "Section 1. Any county of the State and any incorporated city or town within such county, acting through the CommissionersCourt of such county and the governing body of such city or town, may jointly establish, erect, equip,maintain and operate a hospital or hospitals for the **care** and treatment of the sick, infirm, and/or injured; and for the purposes of establishing,erecting, equipping, maintaining and operating such a hospital or hospitals, the CommissionersCourt of any county and the governing body Of any city or town within such county may, by resolution or other appropriate action, confer upon, delegate to and grant to a Board of Managers, as hereinafterprovided, full and complete authority to establish,erect, equip, maintain and operate suchhospital or hospitals. Such cities or towns and countiesthat have heretofore issued and soldbonds for the specificpurpose of jointly establishing,erecting,equipping, maintaining and operating such joint county-city.. Honorable Clyde Boose, Page 3 (WW-1332)

hospital may finance,suchhospital or hospitals out of general revenues and are each, respectively, hereby authorized to levy and collect a tax, not to exceed Ten (10)Cents per onehundred dollar valuation on the property subject to taxes therein, for suchpurposes. I,

.,. . "Sec.4. Such Board of Managersahall have full and complete authority to enter Into any contract connectedwith or Incident to the establishment, erection, equipping,maintaining or operating such hospital or hospitals, and in this connection shallhave authority to disburse and Pay out all funds set aside by such county and such.clty or town for purposes connected with such hospital or hospitals, and such action by such city or town as though such action had been taken by the Commissioners Court of such county or governing body of such city or town.

‘Sec. 5. Once eachNear suchBoard of Mananers shall DreDare and Dresent to such Commissioners Court and the noverninnbody of such city or town a comDlete financial statement of
> and shall submit therewith a DroDosedbudnet of the anticiDated financialneeds of such hOsDita1 or hosoitals for the ensulnayear. **On** the basis of such financial statementand budnet the Commissioners Court of such county and the aovernlnnbody of such clts or town shall aDDroDriate or set~asldefor the use of suchBoard of Managers In the oDeratIon of such hosDita1 or hosDitals the amount of money which seems DroDer and necessary for such DurDose.

II

. . .

“Sec. 7. In.connectlonwith the erection and equipping of suchhospital or hospitals said Board of Managers shallhave the authority to determine the manner of ,expendingany funds that may have been provided by such county and such city or town.. for suchpurpose, whether by the Issuance of bonds or other obligations, or by appropriations from other funds of such county and city or town, It being the lntent?.on by this Act to grant to such Boards.the complete authority to manage and control all matters affecting suchhospitals, reserving.toHonorable Clyde Boose, Page 4 (WW-1332)

such county and city or town the right only to appoint members to suchBoard of Managers and to approve the annual budgethereinaboveprovided for." (Emphasisadded)
We feel that the leglslatlveintent of Article 44941 was that the annual budget was to be a complete financial statement of condition of the city-countyhospital. It therefore follows that since the amounts expended for the hospital laundrywere unbudgeted, the expenditureswere unauthorizedones.

Many opinions from this officehave held that the commissioners'court Is a court of limited jurisdictionand does not have any power unless expresslygiven to it by the constitution or the statutes.

An Inspection of Artlclo 2351 et seq. of Vernon's Civil Statutes reveals that there Is no:statute allowing the commlssioners'court to make contracts at theirdiscretion; such power If exercisedmust be delegated to them or reasonably inferred from the Constitutionor the statutes. In Canalesv. Laughlin, 

### 147Tex. 

### 169, 214 S.W.2d 

### 451,453 (1948),the Supreme Court stated:

"The Constitutiondoes not confer on the commissioners courts 'generalauthority over the county business' and such courts can exercise only suchpowers as the ConstitutionItself or the st~atutes

have 'specificallyconferredupon them'.

. . .While the commissionerscourts have a broad discretion In exercisingpowers expressly conferred on them, neverthelessthe legal basis for any action by any such courtmust be ultimately found in the Constitutionor the statutes."
For other cases denying the use of implied powers in absence of a statute, see uv. 110 Tex. 179, 217 S.W. 

### 373 (1919);Moon v. Alred, 277 S.W. 

### 787 (Clv.App.1925, error dlsm. w:;o..j.); Hill v. Sterrett, 252 S.W.2d 

### 766 **(Civ.** App. 1952, error ref. n. r. e.).

. Since the legislaturehas provided for the establlshment, operation and management of city-countyhospitals, It therefore follows that the commissioners'court had no power to make the agreement set **out** In paragraph 9. Section 2 of Article 

### 44941provides for the selectionof **members** of the Board of Managers and stateshow their successors shallbe selected. Any attemptby the clty,and county to otherwise control the selection is Invalid, and thereforewe must hold Section 9 of the agreement to be void. However, Section 14 of the agreement is In line with the rrovislons of Article 44941 and is therefore a valid provision.Honorable Clyde Boose, Page 5 (WW-1332)

Numerous court decisions of this state have held that if the Commlssloners' Court Initiallyhad the authority to make a contract, and that if any unauthorizedaction is taken without their approval, that they may subsequentlyratify same, which will then become binding. We quote from Galveston County v. Gresham, 220 S.W. 560 (Clv.App.1920, error ref.) -563: as follows at

"'A contractmade in the name of a Commissioners' Court by an unauthorizedpar:% may be ratified by a formal order;

. . . Here we are not concernedwith a contract made by the commissioners' court but only with thelr approval of a contract or action taken by another body. Under these circumstanceswe adviseyou that the Commissioners'Court of Nolan County may now ratify and approve expendituresmade by the Board of Managers if they so desire. Boydstun v. Rockwall Count& 86 Tex. 234, 24 S.W. 272 (1893),Galveston County v. Gresham, su ra,Williams v. Pure 011 Co., 124 Tex. 341, 78 S.W.2d 929, 931 7"1935).

**As** to.your second question,If the Commissioners'Court does not ratify the expenditure of the Board of Managers, It follows that the unbudgeted and unauthorized expenditures do not bind the County or the City as a contractualact.

You then ask if the action of the Board of Managers would be cause .fortheir removal. Since our opinionholds Section 9 o? the agreement Invalid, we must hold that neither the city commissionnor the county commissioners' court may remove any members for cause by virtue of said agreement. In this connection, however, we refer yotito Article 5970,Vernon's Civil Statutes, which provides-that county officersmay be removed from office for lncompentency, official misconduct, etc. We also referyou to Section 4 of Article 5.of.theTexas Constitution and J. C. Ennleman Land Co. v. Donna IrrlnatlonDist, 1209**S.W.** 42-v. App. writ ref. 1919) which holds that a director of an lrr$gatlon district can be tiemovedonly as prescribed in Article 5970, and Hendricks v. Stat=, 4g.S.W. 705 (Clv.App.18%) which made the sameholding in reference to school trustees.

Regardln Opinion No. v-683 7 your third question, In Attorney General's 1948) we find the following conclusions:
"It is our opinion that the Board of Managers of a City-County hospital operatingunder the provisions of Art. 44941, does not have to advertise for bids for materials and supplies in excess of $150.00 or on contracts in excess of $2,030.00as provided in Articles 1659 and 2368a,V. C. S.". . Honorable Clyde Boose, Page'6 (WW-1332)

Since theBoard of Managersmay make contracts for or purchase supplies and materialswithout complyingwith the requirementsof Articles 1659 and 2368a, It therefore follows that it Is unnecessary to answeryour third question.

SUMMARY The Commissioners'Court of Nolan Countymay legally approve and ratify a previousunauthorized expenditure of the Board of Managers of a city-countyhospital if they see fit. If they do not so approve and ratify, the City of Sweetwater and the County of No-an are not legally liable for the unauthorized expendituresunder an unauthorized contract. The Commissioners Court and the city commissionhas the right only to appointmembers to suchBoard of Directors and may not by an agreement assume the power to discharge the Board of Directors. The provisions of Articles 

### 1658,1659, and 2368ado not apply to a city-countyhospital establishedpursuant to Article 44941 of Vernon's Civil Statutes. Sincerelyyours, WILL WILSON
,:~~~iii$GqAssistant FDW:jkr
APPROVED:
OPINION COMMIT'X!EE W. V. Geppert, Chairman
J. C. Davis Marvin Sentelle Bob Patterson Malcolm Quick REVIEWRDFORTHRAlTCRNHYGRNRRAL BY: Houghton Brownlee, Jr.