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    Honorable Murphy Cole
    County Auditor
    Liberty County
    Liberty, Texas

    Dear Sir:                    Opinion No. O-2494
                                 Re: Liability of county for hospitalization
                                     and medical expenses.

            You seek an opinion of this department as to the liability of the
    county of Liberty for hospitalization and medical expenses furnished one
    under the following circumstances:

            "A constable having seen a suspicious looking character in the
    alleys after dark, ordered the man to stop and identify himself, and upon
    his failure so to do, shot the man. The victim was then moved to the
    hospital and doctors, nurse8 and others were called in the case, all with-
    out the lmowledge of the Commissioners' Court or of the M&riot Attorney."

            We assume for the purpose of this opinion that the injured man was
    carried to a private hospital and not to a public institution.

            We held in our   Opinion No. O-2179 that the county was not liable
     for medical attention   furnished a transient who was injured while riding
     a freight train,,even   though the county judge attempted to authorize
    such care prior to its   being furnished.

            We believe that the case of Willaay County ~8. Valley Baptist
    Hospital, et al, 29 SW 2d 456 to be determinative of the question here
    presented. The facts were substantially a6 follows:

            On a certain night in July, 1929, a person by the name of Rifael
    Barboss, a resident of Nillacy County, was struck by an automobile, and
    seriously injured. He lay wounded by the roadside the remainder of the
    night. The next morning his condition wae discovered by the Sheriff of
    Willacy County, who in turn called the County Judge, who direoted that all
    necessary medical aid be given to the injured man, stating that the county
    would pay the expenses. The Sheriff thereupon called Dr. McCann, a local
    physician, who upon examination of the injured man concluded that an oper-
    ation was necessary. There was no hospital in Willaoy County and the
    sheriff, accompanied by Dr. McCann, rushed Barbosa to the Valley Baptist
    Hospital at Harlingen. in Cameron County, where another physician, ~88
    called in and performed an operation. A few days later Barbosa died es a
    result of his injuries. Afterward the two physicians and the hospital
    filed olaims against the oounty for thirty dollars, one hundred end fifty
Honorable Murphy Cole, page 2       o-2494



dollars, and eighty-nine dollars, respectively, as their fees for the
services rendered by them to Barbosa, The county oomnissioners8 court
rejected these claims, and the olaimants each filed suit against Willacy
County, in 8 justice of the peace court. The three suits were consol-
idated and judgment was rendered in favor of the plaintiffs for the amount
of their respective claims, On appeal to the County Court a like judgment
was rendered upon a directed verdict, end Willacy County appealed. The
judgment was based upon the assumption that Barbosa was a pauper and there-
fore such a charge upon the county as to render it the duty of the latter
to furnish him the services for which the suit was brought; and that the
County Judge was clothed with authority to bind the county with his agree-
ment to pay for such services, although it was considered that the ccrmnis-
sioners' court as a body, or the commissioners' individually, had taken
no action to declare Bsrbosa a pauper or to authorize the County Judge to
so bind them, and no such matters had ever been presented to them.
Willacy County, with but a little population, had no public or private
hospital, such as are being operated in counties or large population.

        The judgment of the County Court was reversed and rendered.

        We quote from the above mentioned ease as follows:

        "The powers and duties of county~bommissioners' courts, and the
obligations of the counties to paupers are fixed by statute, and cannot
be enlarged upon by unnecessary implication. These powers and duties, in
so far as applicable here are defined in and restricted by the provisions
of Articles 2351 and 4438, Revised Statutes, 1926. In Article 2351 it is
provided that each commissioners' court shall (subdivision 11~) 'provide
 for the support of paupers D.OD residents of their county, who are unable
to support themselvesP, end (subdivision 12) 'for the bural of paupers.*
In Article 4438 it is provided that 'if there is a regular established
public hospital in the county, the commissioners~ court shall provide for
sending the indigent sick e0Da to such hospitalOe In the latter provision
the duty and the authority of the commissioners' court to send the indi-
gent sick to hospitals is limited to public hospitals within the county,
which provision, by necessary implicetion excludes any duty or authority
to send such persons to private hospitals, or to public hospitals with-
out the county. Even if Barbosa was within the class defined as 'indi-
gent sick,' the aommissionerspoourt as a body, much less the county judge
 acting singularly, was under no duty, and was denied the authority to
send Barbosa to a hospital, either publia or private, outside the county.

        "Os.e Under the provisions of Article 4438, the county was under
 no duty to send Barbosa to any hospital, there being no public hospital
in the county, and under the implied restrictions of this provision it is
 doubtful if the county could be bound by the comissloners~  court, oer-
tainly not otherwise, to send him to a hospital without the county, at
public expense.,..'
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    Honorable Murphy Cole, page 3      o-2494



            In view of the foregoing authority, you are advised that the
    county is not liable under the facts set forth.

                                                Very truly yours

                                            ATTORhZY GENERAL OF TEXAS



                                            By     s/Lloyd Armstrong

                                                       Lloyd Armstrong
                                                             Assistant




    APPROVED   OCT. 7, 1940

     s/Gerald C. Mann

    ATTORNEY GENERAL OF TEXAS


    APPROVED Opinion Committee   By BWB Chairman
