           T’EE     AITORNEY           GENERAL
                          OF   TEXAS
                                               *          -_-._- -._.




Honorable C. V. Milburn          Opinion   No. W-731
county Attorney
county of Ector                 Re:    Whether county funds
Odessa, Texas                          may be used to pay
                                       all or any part of a
                                       plan to provide hos-
                                       pitalization insur-
                                       ance for county offi-
Dear Mr. Milburn:                      cials and employees.
       You have requested an opinion from this office on
whether House Bill No. 838, Acts of the 56th Legislature,
Regular Session, 1959, Chapter 268, Page 585, set out be-
low, authorizes the county to pay all or part of the hos-
pitalization Insurance of county officials and employees.
           "Section 1. The Commissioners Court
      of any county may adopt any insurance plan,
      as they deem necessary, to provide hospi-
      talization insurance to any county official,
      deputy, assistant, and/or any other county
      employee.
           "Sec. 2.  The fact that the present
      law contains no authority for the several
      counties to provide hospitalization insur-
      ance to its.employees and the need therefor
      creates an emergency and an imperative pub-
      lic necessity that the Constitutional Rule
      requiring bills to be read on three several
      days in each House be suspended, and such
      Rule is hereby suspended, and that this Act
      take effect and be in force from and after
      its passage, and it Is so enacted."
       Prior to the enactment of House Bill No. 838, the
counties had the power to procure contracts insuring
county officials and employees under Article 3.51, Vernon's
Civil Statutes.
 3622

Honorable C. V. Milburn, page 2 (WV-731)


             "Sec. 1. The State of Texas and
        each of its political, governmental and
        administrative subdivisions, departments,
        agencies, association of public employees,
        and the governing boards and authorities
        of each State university, college, common
        and independent school districts or of any
        other agency or subdivision of the public
        school system of the State of Texas are
        authorized to procure contracts Insuring
        their respective employees or any class or
        .classes thereof under a policy or policies
        of group health, accident, accidental death
        and dismemberment, and hospital, surgicalt
        and/or medical expense insurance. . . .
       In addition to this the Legislature passed Article
23ph, Section 2, Vernon's Civil Statutes,   allowing
counties having a population of over 500,000 to provide
hospitalization benefits for county officials and em-
ployees Bnd to provide for payments of premiums. In line
with this legislative history it is clear that House Bill
No. 838 wa.s passed in order to allow counties having a
population of less than 500,000 to choose a hospitallza-
tion plan that is suitable for the particular county con-
cerned.
       An analysis of the text of House Bill No. 8 8 dis-
closes that the Commissioners Court may adopt x   7Emphasis
ours) hospitalization insurance plan to provide hospitali-
zation for county officials and employees.
       The situation here is somewhat analogous to the one
facing the San Antonio Court of Civil Appeals in Dane
County Judge, et al v. Davidson, 183 S.W. 2d 195 ?'Tex. Civ.
App. 1944 writ ref.). The problem facing the Court there
was whethir the Commissioners Court could purchase buildings
to office county agencies'other than in the county seat.
Article 2351, Vernon's Civil Statutes, provides that the
Commissioners Court shall:

         " * II,. . 7. Provide and keep in repair
        court houses, .jailsand other necessary
        buildings."
Honorable C. V. Milburn, page 3 (W-731)


The Court quoted with approval an Indiana case which held
that "The power to provide includes the Power to purchase."
Swartz v. Board of Commissioners of Lake County, 158 Ind.
141, 63 N.E. 31.
In the present situation the Commissioners Court has the
Power to adopt any hospitalization plan, and in line with
the reasoning of the Court in Dancy, County Judge. et al
v. Davidson, supra, it has the power to Pay part or all of
the premiums.
       Prior Attorney General's Opinion V-147 barred
payment of insurance premiums out of State or County funds
under Article III, Sections 51, 52, 53 of the Texas Consti-
tution. The Texas Supreme Court has, however, held:
            11
             . . . It is academic to say the
       Legislature has power to pass any law
       which its wisdom suggests that is not
       forbidden by some provisions of the
       Constitution (federal or state). If
       the pension provided for in this act
       is a gratuity or donation to the bene-
       ficiary, it Is clearly forbidden by the
       fundamental law. On the other hand, if
       it is a part of the compensation of such
       employee for services rendered to the
       city, or if it be for a public purpose,
       then clearly it is a valid exercise of
       the legislative power." Byrd v. City of
       Dallas, et al, 118 Tex. 28, 6 S.W. 2d 738
       (1s).
       The Court went on to hold that the pension concern-
ed was not a gratuity but was part of the compensation of
the individuals. In our opinion this same reasoning applies
in the Present case and as long as this insurance is part of
the compensation of the employees and there is statutory
authority for such expenditures the county may pay all or
Part of the premiums.
         In light of this opinion by the Supreme Court of Texas
and the statute in question, this opinion overrules Attorney
General’s   Opinion O-147 insofar as they conflict.
       It is our opinion that the counties can pay all or
Part of the hospitalization insurance premiums of county
 3624.

Honorable C. V. Mllburn, page 4 (WW-731)


          and employees if the Commissioners Court adopts
a plan calling for such payment.



              The counties can pay all or
              part of the hospitalization
              insurance premiums of county
              officials and employees under
              the provisions of House Bill
              No. 838.
                          Yours vetiytruly,
                          WILL WILSON
                          Attorney'General of Texas




JCS:ms
APPROVED:
OPINION COMMITTEE
Gee. P. Blackburn, Chairman
Zellner J. Turlington
Mary'K. Wall"
Robert T. Lewis
RRVIRWRDFORTRRATTORNRYGRNRRAL
BY: W. V. Geppert
