Honorable Henry F.         Cuillet                       Opinion No.     H-16
County Attorney
Andrew8 County                                           Re:     Whether the Commissioners
Andrews,   Texas                                                 Court of Andrews County may
                                                                 use funds authorized by a
                                                                 bond election to build a med-
                                                                 ical clinic on hospital grounds
                                                                 owned by the County for the
                                                                 purpose of leasing space or
                                                                 spaces to a doctor or doctors
                                                                 engaged in the private prac-
                                                                 tice of medicine on terms
                                                                 satisfactory  to the Commis-
                                                                 sioners Court and related
Dear Mr.     Ciuillet:                                           questions ?

       On November   15,       1972,         you requested     the opinion of this office
covering two questions:

                     “(1) May the Commissioners    Court of Andrew8
              County use funds authorized by a bond election to
              build a medical clinic on hospital grounds owned by
              the County for the purpose of leasing a space or
              spaces to a doctor or doctors engaged in the private
              practice of medicine on terms satisfactory  to the
              Commissioners    Court?”

                      “(‘2) May the Commissioners     Court of Andrews
               County purchase a medical clinic building which is
               owned by local private doctors with money obtained
               from a bond election and lease the said medical clinic
               building so purchased,    back to the same doctors on
               terms satisfactory   to the Commissioners    Court?”

      Your    letter     advised     that:

                      “In connection with the foregoing, the Commis -
               sioners Court of Andrew8 County, Texas,      authorized

                                                 P. 76
Honorable   Henry F.   Cuillet,    page 2(H-16)




            an election for the issuance of bonds in the principal
            amount of $2,750,000.00     ‘for the purpose of pro-
            viding funds for enlarging and equipping of the County
            hospital and for all other necessary    permanent im-
            provements    in connection therewith. ’ The proposi-
            tion for the bond election was submitted to the voters
            of Andrew8 County on October 21, 1972, and the
            same carried by a vote of 1,086 for to 721
            against.   . . .”

      On February    6, 1973, the Commissioners           Court of Andrews       County
submitted the following additional questions:

                    “May the Commissioners      Court of Andrew8
             County use $136.000.00     of the bond funds referred
             to in the original opinion (sic) to purchase facilities
             now being used as a doctors clinic, which facility
             is in an internal unit of the hospital building with
             open passage between the facility and which for all
             purposes is one unit?

                    “Secondly,  may the Commissioners     Court, after
             additions to this unit to be purchased, lease space in
             the building purchased together with additions to the
             building;  to medical doctors currently officing in the
             building, as well as additional doctors who may de -
             sire to office in such building, and additions added
             thereto? ”

                    We have been made aware of the extreme importance        of
these questions to the people of Andrew8 County and have given them a
great deal of consideration.    Further,  we note with due respect the opinion
of the Commissioners     Court that the presence of doctor’s  offices in the
hospital facility itself would be in the public interest.

      Section   18 of Article     5 of the Constitution   of Texas   provides:

                   II . . . the County Commissioners     so chosen,
             with the County Judge as presiding officer;    shall
             compose the County Commissioners        Court, which
             shall exercise   such powers,and jurisdiction   0.ve.r a!1
             county business,    as is conferred by this Constitution



                                          P. 77
Honorable   Henry   F.   Cuillet,   page    3 (H-16)




             and the laws of the State, or as may be hereafter
             prescribed. ‘I (emphasis added)

      In Can&es  v. Laughlin,         147 Tex.     169,   214 S. W. 2d 451 (1948)   the
Supreme Court of Texas said:

                    “The Constitution does not confer on the
             commissioners    courts ‘general authority over the
             county business’ and such courts can exercise
             only such powers as the Constitution itself or the
             statutes have ‘specifically   conferred upon them’
                . . while the commissioners      courts have a
             broad discretion  in exercising    powers expressly
             conferred upon them, nevertheless       the legal basis
             for any action by any such- court must be ulti-
             mgtely found in the Constitution or the statutes. ”

       Several statutes authorize counties of various classifications   to lease
county owned hospitals but we have diligently searched for one authorizing
counties to lease a portion of a county hospital to private practitioners    for
use as private offices,  even though such leasing be in the general public
interest.   Our search has not revealed any such specific authority.

       Can it, be tb+t the general authority to lease a county .owned hospital
under such terms and conditions as may be satisfactory       to the Commis-
sioners Court includes the authority to lease a portion of such hospital to
private practitioners    for use as private offices?  We c~onclude that the
answer is “No” .

        The two statutes which apply directly to Andrew8 County appear .to be
Artkles    449411 and 44941, Vernon’s Texas Civil Statutes. Article 4494h
reads., in part:

                     “Any county in this State having a population
             of not less than five thousand (5,000)   and not more
             than ten thousand, three hundred and ninety
             (10,390)   inhabitants according tomthe last preceding
             Federal Census,      s-11 have authority to lease any
             county hospital belonging to said county to be
             operated by the lessee of same under such terms
             and conditions as may be satisfactory     to the
             Commissioners       Court of said county and the
             lessee   . . .‘I


                                           P. 78
Honorable   Henry F.     Guillet,   page 4   (H-16)




      Article    44941 applicable    to all counties   provides   in part:

                       Section 1. “Any county in this State having
                a county hospital which is operated by said county,
                may, and such county is hereby authorized to
                lease such hospital,    provided the Commissioners
                Court of said county shall find and determine by
                an order entered in the minutes of said Court
                that it is to the best interest of said county to
                lease such hospital . . . .‘I

       Logically,     we can only construe these statutes to mean that a
Commissioners        Court has authority to lease a hospital,      or so much of it
as ~would constitute a complete hospital,       to be-operated    by the lessee as
a hospit& for the people of the county.        The phraseology      of the statutes
is such that it is extremely     difficult to read into them any legislative
intent inconsistent
            _ __. .     with.the simple granting of power to lease hospital
                       __.
property for use as a hospital.        “Under such terms and conditions as may
be satisfactory     to the Commissioners     Court” still must be read together
with the basic purpose to which the language relates,          i.e. , leasing and
operating a hospital.

      While other statutes ~authorizing other classifications    of counties
are more specific,    we’believe   all of them express the shame general intent.
Compare Articles    4494a,    4494b. 4494c,   4494k and 4494m,   Vernon’s
Texas Civil Statutes.    Also see Articles    4494e,  and 4494d, 4494f, 4494g
and 4494j, Vernon’s    Texas Civil Statutes.

       Finding no statutory~orconstitutional     authority for the Commissioners
Court of Andrew8 County to lease any portion of county hospital space for
the use of private .physicians   as private offices ; it is our opinion that it
may not do so.     This does not mean, of course,      that the contemplated
clinic cannot be built or purchased as a hospital addition with the bond
funds if it is to be used as an enlargement     of the hospital or a necessary
permanent improvement       thereto.

       Also, nothing we have said in this opinion is intended to challenge
or affect the validity of any bonds which may have been issued pursuant
to the bond election referred   to. Our opinion is limited solely to the
leasing of county hospital property for use as private offices for private
physicians.



                                         P.,79
Honorable   Henry   F.   Guillet,   page 5 (H-16)




      The foregoing makes it unnecessary   for us to decide whether the
proposed action would violate Section 52 of Article 3 of the Constitution
of Texas.
           ,I’-

                                -SUMMARY              -

                     A county hospital may be enlarged,       or
             permanent improvements         may be made in connec-
             tion therewith,     as the best interests  of the county
             dictate.    Although the Commissioners       Court has
             authority to lease a county hospital to be used as
             a hospital,    it is our opinion that the Legislature
             and the Constitution have not granted commis-
             sioners courts and particularly       the Commis-
             sioners Court of Andrews County, authority to
             lease portions of the county hospital for use as
             private medical offices.       In the absence of such a
             grant of authority,     such leasing is unauthorized by
             law.

                                                 Very     truly yours,




                                                    Attorney   General   of Texas

APPROVED:




 y&y-J?@
DAVID M. KENDALL,            Chairman
Opinion Committee




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