Dr.   George    IY.   cox
State Health Officer
&Win,   Texas

Dear Sir:                                  Opinion No. O-25804
                                           Rer Acceptance of a gift by Liberty
                                           County and opamtion of a clinic or
                                           dispensary es public health and sane
                                           ltation mf3(1sure~

          Your recent request for an opinion of this Department upon the
questions as are herein stated has been received. Your letter reads in
part as follows:

                    "Sometime ago the Honorable Murphy Cole, Comty
               Auditor of Liberty County, requested an opinion of
               your Department relative to the establishment of a Olin-
               ic in Liberty, Texas.

                    "In your opinion numbered O-2580 you stated that
               the Commissioners' Court of Liberty County may lease
               the clinic lmildizgs in question or may accept said
               buildings by deed as a gift only after the court has
               been duly authorized to establish and maintain a county
               hospital by the majority of the qualifiedtax paying
               voters of the county at a special election. According
               to Mr. Cole's letter the faots of the case are these:
               In 1935 'Miss Yettie Kersting of Liberty County inspired
               by an ambition to leave a heritage to the needy of the
               county, particularly the sick, made her will dedicat-
               ing her entire estate to Libertg County and direoting
               that the proceeds of same be used for the purpose of
               constructing a county hospital.

                    "Since Miss Yettie is still alive and haa recent-
               ly decided that &he would like to see at least a par-
               tial realization of her ambition before her death,
               she has made a proposition to the Conrmissioners'Court
               that she would,.with her own money, construct a-medical
               clinic building and hold the remainder of her property
               under her charge and connrol until her death and then
               the terms of her till would take affect, which would
               give a group of trustees authority to buy, sell, or
               trade -- or convert her property into cash for the
Dr. George W. Cox, Page 2 (0-2580-A)



         purpose of constructing a hospital. In view of the
         fact that this wcmderful gift has been offered, the
         Commissioners' Court of Liberty County desires to
         accept the gift of the clinio and provide for the
         maintenance thereof from county funds. Ronever, it
         secrmsfrom your opinion numbered O-2.580that this
         money could be accepted only after the court had
         been duly authorized to establish and maintain a
         county hospital by e majority vote of the qualified
         voters of the county et a special election.

              "4rticle 4410f of the Revised Civil Statutes is
         es followsr *It shell be lawful for the state Depart-
         ment of Health to accept donations end contributions
         to be expended in the interest of the public health
         and the enforcement of public health laws, The Cmmis-
         sioners' Court of eny county shall have the authority
         to appropriate end expend money from the general rew-
         nues of its county for and in behalf of public health
         and sanitation within its county.'

             "In viewof this particle,would the Ccmmissioners'
         Court be authorized to spend money for the maintenance
         of this publio health clinic without first establishing
         e county hospital? Should it be determined that the
         county is not authorized to spend money under such oir-
         ownstances end that a county hospital must first be es-
         tablished before such gift could be accepted, the fol-
         lowing petition has been drafted by more than 10 per
         cent of the qualified property tax paying voters of the
         county:

              "' bb, the undersigned qualified voters residing
         in Liberty County, Texas, do respectfully petition your
         Honorable Body to order en election in the said Liberty
         County for the purpose of determining tihetheror not the
         County shall maintain from year to year, together with
         the State and Federal Governments, a County owned clinic
         which shell have been erected end presented to the County
         as a gift, end which shell require no increase in taxes
         or no bond election.

               my Dated this the 16th day of September, A.D., 1940.'

              "Under circumstances es these where there will te
         no increase in taxes or no bonds issued, would the Corn-
         missioners' Court be authorized to cell such en election,
         and whet procedure would they be required to follow?"
Dr. George W.   Cox, Page 3 (0-2580-A)                            , :




          The letter of hIr. Cole, referred to above, furnishes the
following additional informatioar

               "The Liberty-Chambers County Medical Association
          has agreed to cooperate by naming frcpaarraong
                                                       its oxr
          membership physicians who till give a oertain nlanberof
          hours each week to the treatment of the indigent sick,
          end et no expense to the county.    ~

               "The Federal Government, through the Stete Depart-
          ment of Health, will contribute approximately ~,OOO.OC
          per year by employing a physician, e nurse and furnish-
          ing medicine for the treatrmentof venereal diseases, if a
          county clinio is established,end made~available for the
          purpose.
                        ."~        I_   .
               "All the other expense of the clinic,,except the
        :'medioal fees in the treatment of the indigent silk, end
          for venereal diseases control, es mentioned above, would
          be borne by Liberty County."

           Article 4470, Revised Civil Statutes, 1925, enacted in 1913,
(33rd Leg., p. 71), reeds es follows:

               "The coremissionerscourt of any county shell have
          the power to establish e county hospital and to enlarge
          any existing hospitals for the cere andtreetment of.
          persons suffering from any illness, disease or injury;
          subject to the provisions of this chapter. At intervals
          of not less than twelve months, ten per cent of the qual-
          ified property tax peying voters of a aountymey petition
          such court to provide for the establishing or enlarging
          of a county hospital, in whioh event said court within
          the time designated in suoh petition shall subunitto such
          voters et a special or regular eleotionthe proposition
          of issuing bonds in suoh aggregate amount es may be des-
          ignated in said petition for the establishing or enlarg-
          ing of such hospital. Whenevereny such proposition shall
          receive a majority of the votes of the qualified property
          tax paying voters et such election, said canmissioners'
          court shell establish end maintain such hospital and _
          shall have the following powers,

               "1. To purahase and lease reel property therefor,
          or acquire such reel property, and easements therein, by
          oondemnatioa prddeedings.

               "2 e To purchase or erect all necessary buildings,
          make all necessary improvements and repairs and alter
          any existing buildings, for the use of said hospital.
Dr. George W. Cox, Page 4 (O-2580-&)



         The plans for such ereotion, alteration, or repair
         shall first be approved by the State Health Officer,
         if his approval is requested by the said oommission-
         ers* oourt.

              '3. To oause to be assessed, levied end colleot-
         *d, suehtaxes  upon the real and personal property 01~1~
         ed intie county es it shall deem necessary to provide
         the funds for the maintenance thereof, end for all other
         necessary expenditures therefor.

               "4. To issue C&&y    bonds to provide funds for the
          establishing, enlarging and equipping of said hospital
          andfor all other necessary permanent improvements in
          connection therewith; to do all other things that may be
          required by law in order to render bonds valid.
                                                          w
               "5.   To appoint a board of managers for said hospital.

               “6.  To accept and hold in trust for the county, any
          grant or devise of land, or any gift or bequest of money
        ' or other personal property of any donation to be applied,
          principal or income or both, for the benefit of said has-
          pital, and apply the seme in aooordance with the terns of
          of the gift."

          Article 4481; Rwised Civil Statutes, 1925, which was enacted es
a portion of the 1913 Bat, reeds as follows:

               "The board of managers may also establish end oper-
          ate an outpatient department or free dispensary and olin-
          io at the hospital or in the city nearest to whichthe
          hospital is located, with branch dispensaries or cli4cs
          in every city ortovm in the county of five thousand pop-
          ulation and over. They shell appoint a physician or phy-
          sicians, who shall serve et such dispensaries or clinios,
          and shell determine the amount of time required to be
          spent et such dispenseries or clinics 'by such physicians,
          end shall fix the salaries, if eny, of such physicians. ~
          Said board shall also appoint one or more trained visiting
          nurses to serve in conneotion with each such dispensary or
          clinic, end in connection with the hospital, and shell fix
          their salaries within the limits of the appropriation made
          therefor by the oozunissioners'court."

          Article 44Df, Vernon's Texas Civil Statutes, quoted in your let-
ter of request, wes passed in 1927, Acts 40th Leg., 1st C.S., p. 131, oh.
42, 8 10.
                                                .   (

Dr. George W. Co%, Page 6 (B-2580-A)



          The Act of which Articles 4470 and 4481 were a part is concern-
ed with the establishsent and operation of a county hospital and the reg-
ulation, service and management in connection therewith. The first Section
authorizes the establishsent and enlargement, issuadee of bonds, other in-
cidental powers and the aoceptanoe and application of gifts "for the bene-
fit of said hospital.'! Sectnons 2 and 3 provide for a board of managers,
superintendent, and staff of visiting physicians. Section 5 provides for
the establishent, in connection with said hospital; of a special and
separate school for the education, care and treatment of children suffer-
ing from tuberculosis and matters relative thereto. Section 6 authorizes
the Board of hianagersto secure fromthe State Board of Health pamphlets,
circulars and bulletins at aotual.cost of printing on communicable dis-
eases and distribute same to various~organizations and individuals. Pro-
vision is made for the keeping of records and accounts; making reports to
the Board of Managers and Commissioners' Court; and,the admission and dis-
charge of patients. Wherever county hospitals may exist in connection with
a county poor house or on its grounds'the terms of the Act shall apply in
like manner as if the hospital had been originally establibhed under the
provisions of the Act. Article  4481, quoted above, appears as Se&ion 4 of
the Act and authorizes the establishment and operation of an "outpatient
department or free dispensary and clinic' and "branoh dispensaries or
clnics" by the "Board of Danagem" of the hospital.

          It till be noted that Section 4 as well as other sections of the
Act places authority in the Board of %nagereof    the hospital to establish
an provide the .particular departments and services mentioned. A careful
consideration and examination of the Act as a whole leads us to the conolu-
sion that the legislative purpose was to enact comprehensive provisions for
the establishment, operation, government, and management of county hospit-
als, as such, and to give directions and define the powers and services
v.hichmight be performed in oonnection with, and as a part of the hospital
institution.~ This being true, it doss not necessarily follow that when the
Legislature placed it within the statutory powers of the hospital or its
board of managers to do an act or perform a service, when established,
that the county or the commissioners' court could not under its general
powers furnish any of the facilities-or do any of i&e acts which could be
done by the hospital or Board rirManagers if such institution were estab-
lished.

          Subsequent to the passage of the Act of 1913, the Legislature
granted general powers to the ccnssissioners'court in the following lan-
guage 1                                    .~.
           " . . e The Commissioners' Court of any county shall haw
           the authority to appropriate and expend money fromthe gen-
          ,eral revenues of its county for and in behalf of publio
           health and sanitation within its county.’ (Art. 4418f, V.T. ,
           C.S.)
                                                                       .

Dr. George W. Cox, Page 6 (0-2580-A)


                  ,
          No detailed direotion is given es to how such general power
shell be exercised but this matter is left largely within the discretion
of the ccmmissiomsrs' court.

          In our opinioh Ro. 'O-2281we had before us for consideration
the question as to whether a particular county could establish a "ooun~
health unit." After pointing out the duties of the County Health Offi-
cer and the provisions of Article 4538a, Vernon's Texas Civil Statutes,
authorizing the Commissioners' Court to employ one or more Graduate Reg-
istered nurses whose duty it is to visit the public schools in the county,
investigate the health conditions and sanitary surroundings of such
schools. coonerete with the dulv oreanized Board of Health and local health
authorities in general and "perform such other and further duties as may
4,
re uired of' them                             n it was ruledr

           "Although Seation 10 of the-Act (Article 4418f)
          doss not expressly authorize the creation of a 'County
          Health Unit, 1 it does authorize the expenditure of funds
          from the General Fund of the county for and in behalf
          of public health and sanitation in the county.

           "J.tis. therefore, the opinion of this Department that
          .&ticle'4418fl Vernon's Civil Statutes, authorizes the
           Commissioners Court to appropriate and expend money
           from the general fund of.the county for and in behalf
           of publio heslth end sanitation within the county. Such
           statute does not place eny control or limitation on such
           expenddtures as to how the money maybe expended. Such
           funds expended in cooperation tith the State Health De-
           partment in its authorized administration of the health
           and sanitation laws of the State within the county would
           meet the requirement of the Statute. No additional levy
           of taxes outside of the constitutional limit of twenty-
           fice cents on the hundred dollar valuation (Article 8 of
           Section 9 of the Constitution) is contemplated or author-
           ized."

          When it is reasonably necessary in behalf of the public health and
sanitation within the county, it is our opinion that the Cnmaissionars~ Court
of a county may appropriate and expend money from the general revenues,of the
county for treatment, consultation and medical supplies without bonds and es-
tablishing a hospital, notwithstanding such services might be included within
the statutory authority of the hospital if established.

          The general rule is that counties may take by gift and hold the le-
gal title to property or in trust for a public use or purpose inless prohibit-
ed by statute. 7 R.C.L. p. 947, 5 23; 5 R.C.L. p. 320 et seq; 20 C.J.S. p. 994
et seq. In Scholf v. Collins County (Sup. Ct. lSQl), 16 S.i7.314, a pauper
who had been received end treated by the county, prior to the execution of the
deed, conveyed her homestead to the county. It was contended that the county
Dr. George W. Cox, Page 7 (0-2580-A)



could not hold such title against the lawful heirs that at the time the
county acquired title it was not "acquired for sny public purpose, such
as a site for a courthouse, jail, etc., and that the same has never been
used by the county for any such public use or purpose, except the said
Lucretia never changed her residence, but lived upon the land, and vas
supported by the county, under the terms of the deed until she died in
1888, and the county since her death has bsen renting~out said land."
The court heldr

          'De know of no law that limitsthe power of counties
     to acquire title to land to such only as are intended for
     uses mentioned in the third objection. Articles 660-682 of
     the,pevised Statutes (See Article 1576, R.C.S., 1925) contain
     an express recognition of the right of~counties to take title
     to and enjoy real estate without any limitation beiag expres-
     sed as to the purposes for which it shall be used. Eel1 county
     vs. Alexander, 22 Tex. 350.”

     In hell County vs. Alex@ider, (1858) 22 Tex. 351, the test&or left
a portion.of his property to one county for the benefit of the public
schools and a portion to other counties for the benefit of the suffering
poor over the age of forty-five. It NBS contended that the county was
not capable of taking, under the will, the property devised. In over-
ruling the contention and upholding the devise the court stated:

          "There is as little doubt of the capacity of the
     county to take an estate in lands, by grant or devise.
     . . . Theymaytake   and hold, and disposs of, private
     property for municipal uses (Sart. Dig. Art.213, et seq.)
     or such uses and purposes as subserve the public good,
     and the exercise of the local and subordinate legislative
     poxers with Ht:ichthey may be invested by the public lea
     of the state, or by private legislative acts. Angel1 6:
     Ames Eorp: 30; 2 Kent Corn.275, and notes. Though publio
     corporations, they have the same capacity inthis respect
     and to this extent, as a private corporation to take and
     hold property in trust.
          n. . . The counties are entrusted with the duty,
     to provide for the support of indigent persons, resi-
     dent in the county (Hart. Dig. Art. 309): and it cannot
     be doubted, they are competent to take snd administer a
     charitable bequest for that purpose,"
Dr. George W. Cox, Page 8 (0-2580-A)



     Here the Conmissioners' Court is authorized to appmpriate and en-
pend money and it is made its duty to promote the publio health and sari-
itation within its county. It may be neiessary to furnish consultation,
treatment, promote public education in these matters, and dispense medi-
cines. It is oti opinion that the County acting through the Commission-
ers' Court may accept the gift of a building in furtherance of such pur-
pose and as a central place for its activities. I% do not mean of course
that the Coannissioners Court may build, establish, equip, and maintain a
oouniy hospital or issue bonds therefor other than as provided by Chapter
Five, Title 71, Revised Civ'ilStatutes, 1925. That question is.not before
US.


                                             ' court of Liberty County may
     It is our opinion'that the Catnaissioners
spend money for the~maintenance of a public health clinic without first
establishing a county hospital, uuder the facts presented.

     Our opinion No. O-2580 is so modified as to conform to the oonclu-
sions herein expressed.

                                                  Yours very truly

                                            ATTOREEYGEXERM,   OF TEX4S

                                             BY
                                                  a/ Cecil C. Camnack
                                                     Ceoil C. Camaaok
                                                           Bssistrztt
CCC:N:egw

APPROFED OCT 29, 1940

s/Gerald    C. Nann

4TPORNEYGE5ERA.L OF TEX.45                    This opinion considered     '
                                              and approved in limited
                                              conference
