                                 NEY        GENEKAI.
                                     EXAS




Honorable Homer R. Taylor        Opinion No. M-448
County Attorney
Wharton County Courthouse        Re:   Authortty of the Commissioners
Wharton, Texas 11488                   Court to sell Nightingale
                                       Hospital, a county hospital.

Dear Mr. Taylor:

          Your recent letter requests the opinion of this office
as to whether the Commissioners Court of Wharton County has the
authority to sell Nightingale Hospital which is operated by
Wharton County as a county hospital.

          You state in your letter that the hospital was estab-
lished in 1939 pursuant to the authority of Article 4478, Vernon's
Civil Statutes, after a vote of the qualified property tax pay-
ing voters of the county. The relevant portions of Article 4418
read as follows:
             II   Whenever any such proposition shall re-
              . . .
     ceive   a majority
                      of the votes of the qualified prop-
     erty tax payers voting at such election, said com-
     missioners court shall establish and maintain such
     hospital and shall have the following powers:

          "1 . To purchase and lease real property there-
     for, or acquire such real property, and easements
     therein, by condemnation proceedings.

          "2 . To purchase or erect all necessary build-
     ings, make all necessary improvements and repairs
     and alter any existing buildings, for the use of
     said hospital. The plans for such erection, al?
     teration, or repair shall first be approved,by the
     State Health Officer, if his approval is requested
     by the said commissioners court.

          "3 . To cause to be assessed, levied and col-
     lected, such taxes upon the real and personal prop-
     erty owned in the county as it shall deem necessary



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Hon. Homer R. Taylor, page 2             M-448


     to provide the funds for the maintenance thereof,
     and for all other necessary expenditures therefor.

          "4 . To issue county bonds to provide funds
     for the establishing, enlarging and equipping of
     said hospital and for all other necessary permanent
     improvements in connection therewith; to do all
     other things that may be required by law in order
     to render said bonds valid.

          "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 or any donation
     to be applied, principal or income or both, for the
     benefit of said hospital, and apply the same in ac-
     cordance with the terms of the gift."

          It appears from the quoted language that once the
electorate has voted to establish a county,hospital, the com-
missioners court is required to establish and maintain such
hospital.  The powers conferred upon the commissioners court
by Article 4478 do not include the power to sell a county hospi-
tal that has been established under said Article.

          The courts of this State, and this office, have repeated-
ly held that the commissioners court has only such powers as are
conferred upon it by the Constitution and statutes, either ex-
pressly or by necessary implication.  CCZ,
127 Tex. 343, 92 S.W.2d 1011 (1936); Von Rosenberg v. Lovett,
173 S.W. 508 (Tex.Civ.App. 1915; error ref.); Roper v. Hall
280 S.W. 289 (Tex.Civ.App. 1925, no writ). We find no stat&e
or constitutional provision which expressly or by necessary
implication authorizes the Commissioners Court of Wharton
County to sell the county hospital.

          We recognize that Articles 44943, 4494k and 4494m,
Vernon's Civil Statutes, purport to authorize certain counties
to sell county hospitals.  These statutes are restricted to
counties having a specified population or a specified population
and assessed property evaluation. Wharton County does not come
within the limits specified in these statutes.

          you are therefore advised that in our opinion no authority




                         -2222-
Hon. Homer R. Taylor, page 3               M-448


exists for the Commissioners Court of Wharton County to sell the
county hospital.

                         SUMMARY

          The Commissioners Court of Wharton County
     does not have either express or implied authority
     to sell the county hospital established pursuant
     to Article 4478, V.C.S.




                                            eneral of Texas

Prepared by W. 0. Shultz
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman
David Longoria
Arthur Sandlin
Jim Swearingen
Bill Allen

HAWTHORNE PHILLIPS
Executive Assistant

W. V. GEPPERT
Staff Legal Assistant




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