The Honorable Anna Beth Merten     Opinion No. 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
.County has received a federal grant from the United States
Department of Health, Education (rWelfare for the purpose oft
operating such a facility. Specifically, you askr
          1. Whether Wailer County may build
          and maintain a medical clinic without
          submitting the decision to a vote of
          the people.
          2. Whether funds budgeted under
          ‘Major Repairs to %uflQings’ may
          be expended for construction of
          such a clinic.
          3. Whether Waller County may lease
          office space in such a clinic to
          physicians engaged in the private
          practice of medicine, and, if so,
          for what purposes any rental paymntm
          resulting therefrom may be expended.
          4. Whether funds received under the
          federal grant are subject to audit
          by the County Auditor.
     Article 4470, V.T.C.S., provides:




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The Honorable Anna Beth Merten - page 2 (H-777)


               The commissioners court of any
          county shall have power to establish a
          county hospital and any medical or other
          health facilities and to enlarge any
          existing hospitals or facilities for the
          care and treatment 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
          qualified property tax paying voters of
          a county may petition such court to
          provide for the establishing or enlarging
          of a county hospital, or any medical or
          other health facilities, in which event
          said court within the time.designated in
          such petition shall submit to such
          voters at a special or regular election
          the proposition of issuing bondsin such
          aggregate amount as may be designated-in
          said petition for the establishing or
          enlarging of such hospital or facilities.
          Whenever any such proposition shall
          receive a majority of the votes of the
          qualified property tax payers voting at
          such election, said commissioners court
           shall establish and maintain such hospital
          or facilities and shall have the following
          powers:
               1. To purchase and lease real
          property therefor,,,or acquire such real
          property, and easements therein, by
          condemnation proceedings.
               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 approved by the State Health
          Officer, if his approval is requested by
          the said commissioners court.




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The Honorable Anna Beth Merten - page 3 (H-777)


               3. To cause to be assessed, levied
         and collected, such taxes upon the real
         and personal property owned in the
         county as it shall deem necessary 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 or facilities
         and for all other necessary permanent
         improvements in connection .therewithr 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 or facilities.,or
         both.
               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 or
         facilities, and apply the same in accordance
         with the terms of the gift.
               7. The Commissioners Court may
         lease all or part of any'medical facility
         so constructed, purchased or acquired
         under this Act.
Although it might be argued that the statute's grant of
authority to the commissioners court "subject to the pro-
visions of this chapter" requires an affirmative vote 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 General Opinion O-4569 (1942)
declared that the language of article 4479 "is plain and
unambiguous, and confers unqualified general power upon the
Commissioners Court to establish and to enlarge hospitals
for county purposes.n




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The Honorable Anna Beth Merten - page 4 (H-777)


     A recent judicial decision supports such a readina of
article 4470. -In Sullivan v. And&s   Count   517 S.W.-2d
410 (Tex. Civ. App. -- El Pzomwr      +It ref'd n.r.e.), the
court held that

          [alrticle 4478 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 estab-
lish these facilities is independent of the bond election
provisions of article 4475.
     Finally, article 4419f would seem to provide additional
authority for a county's right to build and maintain a
medical clinic without 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 sanitation within its County.
Thus, we answer your first question in the affirmative.
      You also ask whether funds budgeted for “Major Repairs
to Buildings" in the 1975 budget may be expended for con-
struction of 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,improvement fund.
Attorney General Opinion V-567 (1948)t Attorney General
Opinion O-6441 (1945). In order to expend for these
purposes in the 1975 budget, the commissioners court must
certify an emergency and amend its budget, pursuant to




                           p. 3282
The Honorable Anna Beth Merten - page 5 (H-777)


article 689a-11, V.T.C.S. The existence of an emergency is
;o:;Fstion of fact to be determined by the cemmissioners
        Attorney General Opinions O-2499 (1949), O-2315
(1940;. It is therefore our opinion that the county may
construct a medical clinic from funds budgeted in 1975 for
"Major Repairs to %uilaings," provided the commissioners
court certifies an emergency and amends its budget. Such
expenditures are to be made from the county's permanent
improvement fund, or, if the county has,consolidated its
constitutional funds, from its general revenue fund.
     Your third question is whether Waller County may lease
office space in its medical clinic to physicians engaged in
the private practice of medicine. We answered this question
in the negative in Attorney General Opinion H-16 (1973).
Subsequent thereto, the Legislature amended article 4478 by
adding the following:
          The Commissioner Court,may lease all or
          part of any medical facility so constructed,
          purchased or acquired under this Act.
In Sullivan VA Andrew8 County, su ra, the court noted that
article 4470 nom       the commfr
                                8s oners court authority to
"lease all or partn of a medical facility. .517.s.w.za at
412. Since we indicated in our anwer to your.Piret question
that the county may establish a medical facility pursuant to
article 4478, our opinion that it may 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,
it must be done for a valid public purpose and the county
must receive 'substantial value in return" for its grant of
the leasing privilege. -See Sullivan & Andrew8 County,
supra at 413.
     Rsntal payments received for the lease of the medical
facility are appropriated by article 1629, V.T.C.S., to the
"third class" of county funds, which comprises:




                           p. 3283
The Honorable Anna Beth Merten - page 6 (H-777)


         All money received, not otherwise
         appropriated herein or by,the
         commissioners court.
Moneys paid into this account are to be utilized to pay
          [a]11 the general indebtedness of
          the county, including feeding and
          guarding prisoners, 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 inaebt-
edness of the county.
     your last question is whether funds received under the
federal grant are subject to audit by the County Auditor.
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 extremely broad, and we believe that it
empowers the County Auditor 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 county monies 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 audit by the County Auditor.




                           p. 3284
The Honorable Anna Beth Merten - page 7 (H-777)


                       SUMMARY
                 Waller County may build and main-
            tain a medical clinic without 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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