The HonorableAnna Beth Merten OpinionNo. H-777

County Auditor Wailer County lie: Operation of a Hempetead, Texas 71445 medical clinic in Waller County.

Dear Us. Mertenr

You have requested our opinion regarding the operation of a medical clinic in Waller County. You state that Waller .Countyhas received a federal grant from the United States Department of Health, Education (r Welfare for the purpose oft operating such a facility. Specifically,you askr

1. Whether Wailer County may build andmaintain a medical clinicwithout submitting the decision to a vote of thepeople.

2. Whether funds budgeted under

‘Major Repairs to %uflQings’ may be expended for construction of such a clinic.

3. Whether Waller Countymay lease office space in such a clinic to physicians engaged in the private practice of medicine, and, if so, forwhat purposes any rental paymntm resulting therefrommay be expended.

4. Whether funds received under the federalgrant are subject to audit by the County Auditor.
Article 4470,V.T.C.S., provides:

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The commissionerscourt of any county shall have power to establish a county hospital and anymedical or other health facilitiesand to enlarge any existing hospitalsor facilities for the
care and treatmentof persons suffering from any illness,disease or injury, subject to the provisions of this chapter. At intervalsof not less than twelvemonths, ten per cent of the qualified property tax paying voters of
a countymay petition such court to provide for the establishingor enlarging of a county hospital, or anymedical or other health facilities, inwhich event said courtwithin the time.designated in such petition shall submit to such voters at a specialor regular election the proposition of issuingbondsin such aggregate amount asmay be designated-in said petition for the establishingor enlarging of suchhospital or facilities. Whenever any suchproposition shall receive a majority of the votes of the qualified property tax payers voting at such election, said commissioners court shall establish andmaintain such hospital
or facilities and shall have **the** following powers:
1. To purchase and lease real property therefor,, ,oracquire such real property, and easements therein,by condemnationproceedings. **2.** To purchase or erect all necessary buildings,make all necessary improvements and repairs and alter any'existing~ buildings, for the use of said hospital
or facilities. The plans for such erection, alteration, or repair shall first be approvedby the State Health Officer, if his approval is requestedby the said commissioners court.

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**3.** To **cause** tobe assessed, levied and collected, such taxesupon the real and personal property owned in the county as it shall deem necessary to provide the funds for themaintenance thereof, and for all other necessary expenditures therefor. **4.** To issue countybonds to provide funds for the establishing,enlarging and ,equippingof saidhospitalor facilities and for all other necessarypermanent improvements in connection.therewithrto do all other things that **may** be required by law in order to render saidbonds valid. 5. To appoint,aboard of managers for said hospital or facilities., or both.**6.** To accept and hold in trust for the county, any grant or devise of land, or any gift or bequestof money or other personal property or any donation to **be** applied, principal or incomeor both, for the benefit of saidhospital or facilities, and apply the same in accordance with the terms of the gift. **7.** The CommissionersCourtmay lease all or part of any'medical facility
so constructed, purchased or acquired under this Act. Although itmight be argued that **the** statute'sgrant of authority to the commissioners court "subject to the provisions of this chapter" requires an affirmativevote in a bond election as a prerequisite to the establishment of any hospital or other medical facility, it is our view that the statute confers broad authority upon a county to "establish" such facilities. As long ago as 1942, this Office reached this conclusion. Attorney GeneralOpinion O-4569 (1942) declared that the language of article 4479 "is plain and unambiguous,and confers unqualifiedgeneral power upon the CommissionersCourt to establish and to **enlarge** hospitals for county purposes.n

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A recent judicialdecision supportssuch a readina of article 4470. -In Sullivan v. And&s Count +I 517 S.W.-2d 410 (Tex.Civ. App. -- El Pzomwr t ref'd n.r.e.), the court held that

[alrticle4478 gives the Commissioners Court power to establish a county hospital and other medical or health facilities, includin the ri ht to call a bond dtEs&sror

The clear implication is that a **county ’** **s** authority to establish these facilities is independentof thebond election provisions of article 4475. Finally, article 4419f would **seem** to provide additional authority for a county's right to build andmaintain a medical clinicwithout submitting the decision to a vote of the electorate:

The Commissioners Court of any County shall have the authority to appropriate and expend money from the general revenues of its County for and inbehalf of public health and sanitationwithin its County.
Thus, we answer your first question in the affirmative.

You also ask whether fundsbudgeted for **“Major** Repairs to Buildings" in the 1975 budgetmay be expended for constructionof a medical clinic. As we have noted, article 4410f authorizes the expenditure of general **revenue** funds "for and in behalf of public health and sanitation." If the county has not consolidated its four constitutional funds pursuant to article S, section 9 of **the** Texas Constitution, however, we believe that expenditures for construction **are** to be made from the county's permanent,improvementfund. Attorney General Opinion V-567 (1948)tAttorney **General** Opinion O-6441 (1945). In order to expend for these purposes in the 1975 budget, the commissionerscourt must certify an emergency and amend itsbudget,pursuant to

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article 689a-11,V.T.C.S. The existence of an emergency is ;o:;Fstion of fact to be determined by the cemmissioners
(1940;.Attorney General Opinions O-2499 (1949),O-2315

It is therefore our opinion that the countymay construct a medical clinic from fundsbudgeted in 1975 for "Major Repairs to %uilaings," provided the commissioners court certifies an emergency and amends itsbudget. Such expenditures are to be made from the county'spermanent improvement fund, or, if the county has,consolidated its constitutional funds, **from** its general revenue

### fund.

Your third question is whether Waller Countymay lease office space in itsmedical clinic to physiciansengaged in the privatepractice of medicine. We answered this question in the negative inAttorney General OpinionH-16 (1973). Subsequent thereto, the Legislature amended article 4478by adding the following:

The Commissioner Court,may leaseall or part of anymedical facility so constructed, purchased or acquired under thisAct.

**In** SullivanVA Andrew8 County, su ra, the court noted that article 4470 nom the fr comm 8s oners court authority to "lease all or partn of a medical facility. .517.s.w.zaat 412. Since we indicated in our anwer to your.Piret question that the countymay establish a medical facilitypursuant to article 4478, our opinion that itmay lease "all or part" of the facility "so constructed,purchased or acquired under this Act." We note, however, that in order to avoid the objection that such leasing of a county-owned facility is: violative **of** article 3, section 52 of the Texas Constitution, itmust be **done** for a valid public purpose and the county must receive 'substantialvalue in return" for its grant of the leasingprivilege. See Sullivan & Andrew8 County, supra at 413. -

Rsntal payments received for the leaseof themedical facility are appropriatedby article 1629,V.T.C.S., to the "third class" of county funds,which comprises:

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All money received,not otherwise appropriatedherein or by,the commissionerscourt.
Moneys paid into this account are to be utilized to pay

[a]11the general indebtedness of the county, including feeding and guardingprisoners, and paupers claims. V.T.C.S. art. 1626.

In our opinion, therefore,rental payments received for the lease of the medical facility should be paid into the county's general revenue fund, to be expended for the general inaebtedness of the county.

your last question iswhether funds **received** under the federal grant are subject to audit by the CountyAuditor. The County Auditor is charged by article 1651,V.T.C.S., with the general oversight of all the books

and records of all the officers of the county,district or state,who may be authorized or required by law to receive or collect any money, funds, fees, or other property for the use of, or belonging to, the county

. . . This statute is extremelybroad, and we believe that it empowers the CountyAuditor to audit all county funds, including those received under a federal,grant. An exception would, of **course,** obtain if the terms of the grant specified that the funds received did not become countymonies or were not otherwise subject to county audit. See Attorney General Opinion M-007 (1971). But, subject to tm exception, it is
**our** opinion that funds received under a federal **grant are**  subject to auditby the County Auditor.

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SUMMARY
Waller County **may** build and maintain a medical clinicwithout submitting the decision to a vote of the people. The county may utilize for such purpose funds budgeted under **“Major** Repairs to Building" in the 1975 budget, provided the commissioners court certifies an emergency and amends its budget.
Very truly yours,

Attorney General of Texas

APPROVED:

Opinion Committee
jwb

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