THE ATTORNEY GENERAL 

OF TEXAS 

Honorable Clyde Boose 

Nolan County Attorney 

P. 0. Box 1200 

Sweetwater, Texas 

Opinion No. 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 1956 Nolan County and the City of Sweetwater entered Into a 

joint agreement for the operation of a city-county hospital, 

pursuant to Article 44941 of Vernon's Civil Statutes. 

Two pertinent paragraphs 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 Commlssloners Court shall have the 

right to remove for cause any member of the Board 

of Managers appointed by the County; the member of 

the Board of Managers appointed jointly by 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 speclficallv anreed that the Board 

of Manaaers shall not make any exDenditure not 

covered bs its budget as approved by the Clts and 

County exceDt with the specific Dermlsslon and consent of the Cltv Commission of the Clts of Sweetwater and the Commissioners Court of Nolan Counts, 

Texas." (Emphasis added) 

Further facts are that the Board of Managers recently 

expended close to $30,000.00 for the construction and equipping 

of a hospital laundry which 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 were 

Bids were advertised and received on _ _ . -.. not on tne laundry equipment. It 1s 

further slgnlflcant that 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 following three questions: 

"(1) Can'the Commissioners Court of Nolan 

County legally approve these expenditures since 

the building was not a budgeted Item nor was any 

single Item of the laundry equipment shown In 

their budget, and no permission of any kind was 

sought or obtained from either governmental unit. 

"(2) Would the City and County be liable 

for these expenditures not authorized by the 

hospital budget or any other form of authorization 

from the governmental units? Would such action 

on the part of the Board of Managers be cause for 

their removal as board members? 

" 3) In regard to Attorney General's Opinion 

No. ~6 A 3 dated 1948, could you advise me what 

would be Included in materials and supplies in 

excess of $150.00 and what would be 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 Commissioners Court 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 Commissioners Court 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 hereinafter provided, full 

and complete authority to establish, erect, equip, 

maintain and operate such hospital or hospitals. 

Such cities or towns and counties that have heretofore issued and sold bonds for the specific purpose 

of jointly establishing, erecting, equipping, 

maintaining and operating such joint county-city. 
. Honorable Clyde Boose, Page 3 (WW-1332) 

hospital may finance,such hospital 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 one hundred dollar 

valuation on the property subject to taxes therein, 

for such purposes. 

I, 

.,. . 

"Sec. 4. Such Board of Managers ahall have 

full and complete authority to enter Into any 

contract connected with or Incident to the establishment, erection, equipping, maintaining or 

operating such hospital or hospitals, and in this 

connection shall have 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 each Near such Board of 

Mananers shall DreDare and Dresent to such Commissioners Court and the noverninn body of such 

city or town a comDlete financial statement of 

> 

and shall submit therewith a DroDosed budnet of the 

anticiDated financial needs of such hOsDita1 or 

hosoitals for the ensulna year. On the basis of 

such financial statement and budnet the Commissioners 

Court of such county and the aovernlnn body of such 

clts or town shall aDDroDriate or set ~aslde for 

the use of such Board 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.connectlon with the erection and 

equipping of such hospital or hospitals said Board 

of Managers shall have the authority to determine 

the manner of ,expending any funds that may have 

been provided by such county and such city or town.. 

for such purpose, 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 such hospitals, reserving.to 
Honorable Clyde Boose, Page 4 (WW-1332) 

such county and city or town the right only to appoint members to such Board of Managers and to 

approve the annual budget hereinabove provided for." 

(Emphasis added) 

We feel that the leglslatlve intent of Article 44941 

was that the annual budget was to be a complete financial statement of condition of the city-county hospital. It therefore 

follows that since the amounts expended for the hospital 

laundry were unbudgeted, the expenditures were unauthorized ones. 

Many opinions from this office have held that the 

commissioners' court Is a court of limited jurisdiction and does 

not have any power unless expressly given 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 their discretion; such 

power If exercised must be delegated to them or reasonably inferred from the Constitution or the statutes. In Canales v. 

Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948), the Supreme 

Court stated: 

"The Constitution does not confer on the 

commissioners courts 'general authority over the 

county business' and such courts can exercise 

only such powers as the Constitution Itself or 

the st~atutes have 'specifically conferred upon 

them'. . . . While the commissioners courts have 

a broad discretion In exercising powers expressly 

conferred on them, nevertheless the legal basis 

for any action by any such court must be ultimately 

found in the Constitution or 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 legislature has provided for the establlshment, operation and management of city-county hospitals, It 

therefore follows that the commissioners' court had no power to 

make the agreement set out In paragraph 9. Section 2 of Article 

44941 provides for the selection of members of the Board of 

Managers and states how their successors shall be selected. Any 

attempt by the clty,and county to otherwise control the selection 

is Invalid, and therefore we 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 Initially had the authority to make 

a contract, and that if any unauthorized action is taken without 

their approval, that they may subsequently ratify 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 contract made in the name of a Commissioners' Court by an unauthorized par:% 

may be ratified by a formal order; . . . 

Here we are not concerned with a contract made by the 

commissioners' court but only with thelr approval of a contract 

or action taken by another body. Under these circumstances we 

advise you that the Commissioners' Court of Nolan County may 

now ratify and approve expenditures made 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 contractual act. 

You then ask if the action of the Board of Managers 

would be cause .for their removal. Since our opinion holds Section 

9 o? the agreement Invalid, we must hold that neither the city 

commission nor the county commissioners' court may remove any 

members for cause by virtue of said agreement. In this connection, 

however, we refer yoti to Article 5970, Vernon's Civil Statutes, 

which provides-that county officers may be removed from office 

for lncompentency, official misconduct, etc. We also refer you 

to Section 4 of Article 5.of.the Texas Constitution and J. C. 

Ennleman Land Co. v. Donna Irrlnatlon Dist, 1209 S.W. 42-v. 

App. writ ref. 1919) which holds that a director of an lrr$gatlon 

district can be tiemoved only as prescribed in Article 5970, and 

Hendricks v. Stat=, 4g.S.W. 705 (Clv.App. 18%) which made the 

same holding 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 operating under 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 $2,030.00 as provided 

in Articles 1659 and 2368a, V. C. S." 
. . 

Honorable Clyde Boose, Page'6 (WW-1332) 

Since the Board of Managers may make contracts for 

or purchase supplies and materials without complying with the 

requirements of Articles 1659 and 2368a, It therefore follows 

that it Is unnecessary to answer your third question. 

SUMMARY 

The Commissioners' Court of Nolan County may legally 

approve and ratify a previous unauthorized expenditure 

of the Board of Managers of a city-county hospital 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 expenditures under an unauthorized contract. 

The Commissioners Court and the city commission has 

the right only to appoint members to such Board of 

Directors and may not by an agreement assume the power 

to discharge the Board of Directors. 

The provisions of Articles 1658, 1659, and 2368a do 

not apply to a city-county hospital established pursuant to Article 44941 of Vernon's Civil Statutes. 

Sincerely yours, 

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.