                                               GREG        ABBOTT




                                                    June 25,2007


The Honorable Richard Clark                                  Opinion No. GA-0552
Yoakum County Criminal District Attorney
Post Office Box 359                                          Re: Whether a county may own or operate a
Plains, Texas 79355                                          medical clinic in an adjacent county without the
                                                             adjacent county's consent (RQ-0560-GA)

Dear Mr. Clark:

        You explain that Yoakum County (the "County") created the Yoakum County Hospital under
the statutory predecessor to chapter 263 of the Health and Safety Code "to provide medical services
to the people o f ' the County.' See TEX.HEALTH& SAFETYCODEANN. ch. 263 (Vernon 2001 &
Supp. 2006). The hospital, you state, is located in Denver City, "which sits on the [southern] border
of [the County] and neighboring Gaines C ~ u n t y . "Request
                                                      ~       Letter, supra note 1, at 1. A briefer has
further informed us that while Gaines County has a hospital district, neither the Gaines County
hospital district nor any other governmental health care entity covers "the municipality of Seagraves
in the northern portion of Gaines County."' You therefore ask whether the County may own or
operate a medical clinic in an adjacent county without the adjacent county's consent. See Request
Letter, supra note 1, at 1, 5. Our answer is limited to the circumstances as you present them.

        Section 263.021(a) of the Health and Safety Code allows a county commissioners court to
"establish a county hospital or . . . medical or other health facility . . . for the care and treatment of
persons who are sick or injured." TEX.HEALTH& SAFETYCODEANN.5 263.02 1(a) (Vernon 200 1).
The hospital is governed by a board of managers, which "shall generally manage and control the
hospital," including its buildings, its employees, and its patients. Id. 5 263.046(a); see id.


         'Letter from Honorable Richard Clark, Yoakum County Criminal District Attorney, to Nancy S. Fuller, Chair,
Opinion Committee, Office of the Attorney General of Texas, at 1 (Jan. 8,2007) (on file with the Opinion Committee,
also available at http:llwww.oag.state.tx.us) [hereinafter Request Letter].

         'The hospital's website indicates that it serves "a population area of25,OOO from western Texas and easternNew
Mexico." YOAKUM      COUNTY   HOSPITAL,   ABOUTUS,available at http://www.ych.uslabout.asp (last visited May 29,2007).
In addition to its hospital facility in Denver City, the hospital comprises a fitness and rehabilitation center, a dialysis
treatment center, two clinics (a rural health clinic and a clinic in Plains), and home health care services. See id.

        'Letter from Kevin A. Reed, Davis & Wilkerson, P.C., on behalf of the Texas Organization of Rural &
Community Hospitals, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas, at 1 (Feb.
14, 2007) (on file with the Opinion Committee).
The Honorable Richard Clark - Page 2                    (GA-0552)



5 263.04 1(a). The county commissioners court and the hospital board of managers may exercise
only those powers that the law expressly confers upon them and those powers that may be
necessarily implied from the express powers. See City of Sun Antonio v. City ofBoerne, 111 S.W.3d
22,28 (Tex. 2003) (commissioners court); cJ: Mascarenhas v. Meridian Hosp. Auth., 560 F.2d 683,
685 (5th Cir. 1977) (quoting Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945,946
(Tex. 1940)) (hospital authority created under Health and Safety Code chapter 262); Jackson County
Hosp. Dist. v. Jackson County Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex.
App.-Corpus Christi 1984, no writ) (citing Tri-City Fresh Water Supply Dist. No. 2, 142 S.W.2d
at 946; Mascarenhas, 560 F.2d at 685) (hospital district created by special law).

        Nothing in chapter 263 expressly prohibits a county hospital from operating a clinic in an
adjacent county if the two counties have not entered an agreement, but nothing expressly permits it
either. See, e.g., TEX.HEALTH   & SAFETY   CODEANN.5 5 263 .OO 1(a) (Vernon 200 1) (permitting two
adjacent counties to join together to construct a hospital or health care facility); 263.028(a)
(permitting a county that does not have a municipality with a population over 10,000 to contract with
an adjacent county for the care of county residents); 263.080 (requiring a hospital superintendent to
admit a person from an adjacent county if, among other things, "the adjacent county has contracted
with the board of managers for the care and treatment of' county residents).

        But in our opinion, section 263.022(c), together with a board of managers' general power to
manage hospital facilities,personnel, and patients, implicitly provides the authority you seek.4 Under
section 263.022(c), a commissioners court may "purchase or lease real or personal property, or both,
in an adjacent county if the court considers the purchase or lease necessary for hospital purposes."
TEX.HEALTH& SAFETYCODEANN.5 263.022(c) (Vernon 2001). Section 263.022(c) on its face
permits the County to acquire property in an adjacent county if the court finds the acquisition
"necessary for hospital purposes," without indicating that the adjacent county's consent is required.
Id. Hospital purposes may include the establishment or enlargement of a "medical or other health
facility" as authorized by section 263.021(a), which we interpret to include a clinic. See id.
5 263.02 1(a). Because determining whether a particular acquisition is necessary for hospital
purposes requires the resolution of fact questions, the commissioners court must make the
determination in the first instance, subject to judicial review for abuse of discretion. See Wichita
County v. Bonnin, 182 S.W.3d 415,420 (Tex. App.-Fort Worth 2005, pet. denied) (indicating that
a commissioners court's decisions are subject to judicial review for abuse of discretion); see also
Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion
process."); cf Tex. Att'y Gen. LO-97-068, at 3-4 (summarizing attorney general opinions
considering whether particular activities served hospital purposes consistent with article IX, section
9 of the Texas Constitution, which pertains to hospital districts). Similarly, before the
commissioners court may order an expenditure of county funds to own or operate a medical clinic


         4We do not consider in this opinion whether any other legal impediment to the project exists, such as limitations
in the commissioners court's order establishing the hospital or a contract with County voters. See, e.g., Taxpayers for
Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex. App.-Dallas 2002, pet. denied) (stating the
"elementary" principle that "the proceeds ofbonds voted by the people must be expended for the purposes for which they
were voted" (quoting Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex. 1936))).
The Honorable Richard Clark - Page 3                      (GA-0552)



in an adjacent county, it must determine that the expenditure serves a legitimate county p ~ r p o s e . ~
See TEX.CONST.art. 111,s 52(a) (prohibiting the expenditure of public funds for private purposes);
id. art. VIII, 5 9(b) (permitting a county to levy taxes for four constitutional purposes only); Tex.
Att'y Gen. Op. No. GA-0059 (2003) at 3 (stating that county funds may be used for county purposes
only). Once the County has made the requisite determinations and acquired the property, the hospital
board of managers has express authority to manage the facility, personnel, and patients consistently
with legal requirements. See TEX.HEALTH& SAFETYCODEANN.5 263.046(a) (Vernon 2001).

        Finally, while other sections of chapter 263 appear to require a contract between counties
before a county hospital may serve residents of another county, we do not believe those sections limit
the exercise of a county's authority under section 263.022(c). Section 263.028 authorizes the
commissioners court of a county that does not have a municipality with a population of more than
10,000 (such as Gaines County) to "contract with . . . an adjacent county for the care of residents of
the county who are sick or injured." Id. 263.028; see also UNITEDSTATES       CENSUS  BUREAU,   2000
CENSUSOF POPULATION:      POPULATION     FINDER,available at http://www.census.gov/ (population of
Seminole is 5,910; population of Seagraves is 2,334) (last visited June 4,2007). In addition, section
263.080 requires a hospital superintendent to admit to the hospital "a person sent by the
commissioners court of an adjacent county i f . . . [among other things] the adjacent county has
contracted with the board of managers for the care and treatment of persons who are sick or injured."
TEX.HEALTH& SAFETYCODEANN. 5 263.080 (Vernon 2001). These sections do not forbid a
county to provide health services "on [its] own volition," in the absence of a contract. Request
Letter, supra note 1, at 4. Likewise, section 263.050, which permits a board of managers to
"establish and operate" a clinic "at the hospital or in the municipality located nearest the hospital"
or "in a municipality that is located in the county and that has 5,000 or more inhabitants," neither
requires that the nearest municipality be in the same county nor forbids a board of managers to
operate a clinic acquired by the county under section 263.022(c). TEX.HEALTH& SAFETYCODE
ANN.5 263.050(a) (Vernon 2001).

        We thus conclude that a county may purchase or lease a medical clinic in an adjacent county
without the adjacent county's consent under section 263.022(c) of the Health and Safety Code if the
county commissioners court determines that the acquisition is "necessary for hospital purposes" and
that any expenditure of county funds serves a county purpose. Id. 5 263.022(c); see Tex Att'y Gen.
Op. No. GA-0059 (2003) at 3. The hospital's board of managers may manage the facility, personnel,
and patients consistently with legal requirements. See TEX. HEALTH& SAFETYCODEANN.
5 263.046(a) (Vernon 200 1).

          'Section 263.022(c)'s legislative history supports the conclusion that a commissioners court reasonably may
fmd that acquiring an out-of-county clinic serves hospital purposes. See TEX.HEALTH& SAFETYCODEANN. §
263.022(c) (Vernon 2001). The Legislature adopted the substance of subsection (c) in 1987. See Act of May 18, 1987,
70th Leg., R.S., ch. 737, 5 1, 1987 Tex. Gen. Laws 2645,2645. In hearings on the bill before the House Committee on
County Affairs, Representative Criss, the bill's sponsor, testified that the bill would authorize the Mainland Center
Hospital in Galveston County to purchase a clinic in the City of Alvin in Brazoria County "and operate [the clinic] as
part of the county hospital." Hearings on Tex. H. B. 1002 Before the House Comm. on County Affairs, 70th Leg., R.S.
(Mar. 17, 1987) (testimony of Representative Criss) (transcript available from House VideoIAudio Dep't). In
Representative Criss's words, "what this bill will allow, if a hospital . . . is servicing another county, this bill will allow
them to purchase land in that county, put up a clinic or whatever." Id.
The Honorable Richard Clark - Page 4         (GA-0552)



                                      S U M M A R Y

                      A county may purchase or lease a medical clinic in an
              adjacent county without the adjacent county's consent under section
              263.022(c) of the Health and Safety Code if the county
              commissioners court determines that the acquisition is "necessary
              for hospital purposes" and that the expenditure of county funds serves
              a county purpose. TEX.HEALTH& SAFETYCODEANN.5 263.022(c)
              (Vernon 2001); see TEX.CONST.arts. III,§ 52(a); VIII, 5 9(b). Once
              acquired, the hospital's board of managers may manage the facility,
              personnel, and patients consistently with legal requirements. See
              TEX.HEALTH& SAFETYCODEANN. 5 263.046(a) (Vernon 2001).

                                             Very truly yours,




                                             Attorney g e r a l of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
