                                               The Attorney         General of Texas

JIM MATTOX                                                      JI:LY 22,   1985
Attorney General


Supreme   Court Building                      Honorable William A. Ewert, Jr.           Opinion No.   JM-335
P. 0. Box 12546                               Kleberg County Attorney
Austin, TX. 76711. 2546                       P. 0. Box 1411                            Re:  Whether a county must comply
5121475.2501                                  Kingsville, Texas   '78363                with the public auction require-
Telex    9101674-1367
Teleccnier     512/475-0266
                                                                                        ments of article 44941, V.T.C.S.,
                                                                                        in order to sell a county hos-
                                                                                        pital in accordance with articles
714 Jackson,    Suite 700                                                               44941 and 4437e-2, V.T.C.S.
Dallas.   TX. 75202-4506
2141742.6944
                                              Dear Mr. Ewert:

4624 Alberta          Ave., SUite       160        You have inquired about the procedures Kleberg County must follow
El Paso. TX.          79905.2793              in selling its county hospital. You have explained that Kleberg
9151533.3464                                  County has complied with the provisions of a statute that authorizes a
                                              county to sell a hospital after notice by publication, a public
1001   Texas,         Suite     700
                                              hearing and, in tt.is instance, a referendum election approving the
Houston,        TX.     77002-3111            sale. V.T.C.S. art. 44941. The proposed sale you have described also
7131223-5666                                  comes within the scope of a statute that authorizes an issuer of
                                              hospital revenue bonds to sell s "hospital project" to a non-profit
                                              corporation. V.T.C.S. art. 4437e-2, P5. Your question is whether
606 Broadway,            Suite 312
Lubbock,  TX.           79401.3479
                                              Kleberg County most also comply with article 1577, V.T.C.S., which
6061747-5236                                  authorizes counties to sell real estate by public auction.

                                                   In our opinion article 1577 is inapplicable when a county sells a
4304 N. Tenth,     Suite B
                                              hospital pursuant to article 44941 or article 4437e-2. Because
McAllen,     TX. 76501-1665
5121662-4547
                                              Kleberg County has fulfilled the requirements of both article 44941
                                              and article 4437e-i.,we do not consider whether a county must comply
                                              with article 4494;: when it sells a hospital pursuant to article
 200   Main     Plaza,        Suite   400     4437e-2.
 San   Antonio,         TX.     76205-2797
 5121225.4191
                                                   The source of your concern is the statement in several Texas
                                              cases that a county must comply with article 1577 in order to sell
 An Equal       Opportunity/                  real estate. --
                                                            See, e&,Ferguson    v. Halsell, 47 Tex. 421. 422 (1877);
 Affirmative      Action     Employer         Hardin County v. Nona Mills Co., 112 S.W. 822 (Tex. Civ. App. 1908, no
                                              writ). Such state&ts must be read in their historical context. The
                                              legal basis for any action by a county must be found in the Texas
                                              Constitution or st~wtes.    Canales v. Laughlin, 214 S.W.Zd 451, 453
                                              (Tex. 1948). A conveyance of land by a county is void if it is not
                                              done in a manner I'rescribedby statute. Wilson v. City of Calhoun,
                                              489 S.W.Zd 393, 397 (Tex. Civ. App. - Corpus Christi 1972, writ ref'd
                                              n.r.e.). Article lli77states that counties x      sell real estate in
                                              accordance with its provisions. Absent other authority for selling
                                              real estate, however, a county must sell real estate in accordance
                                              with article 1577 or not at all. 15 Tex. Jur. 2d Counties 188.

                                                                            p.   1527
                                                                         -1



Honorable William A. Ewert, Jr. - Page 2   (JM-335)




Clearly, when counties sell real estate by other means authorized by
the constitution or statutes, compliance with article 1577 is not
mandatory. -See Ferguson v. 'lalsell,47 Tex. at 422 (1877).

     Also, both article 445,41 and 4437e-2 authorize something more
than the sale of real est.ate. Both statutes clearly permit and
perhaps anticipate the sale of a hospital as a going concern. Such a
sale would include not on:Ly real property but also tangible and
intangible personalty. Consequently, article 1577 alone would not be
sufficient to authorize the sale of a functioning hospital. Indeed,
in 1969 this office considered whether Wharton County had the
authority to sell its county hospital. At that time article 1577
authorized counties to sel:. real estate at public auction, but no
statute applicable to Whartco County specifically authorized a county
to sell its county hospital. Finding no authority for the sale, this
office concluded that Wharton County had no authority to do so.
Attorney General Opinion M-,048 (1969). See also Attorney General
Opinion H-668 (1975). SimiLarly, in response to questions regarding
the lease of a county hospital, this office has consistently looked to
statutes dealing specifically with the lease of county hospitals, not
to article 1577, which also gives counties authority to lease real
estate.   Attorney General Opinions H-777 (1976); H-16 (1973).
Implicit in those opinions is the conclusion that article 1577 does
not authorize the lease of a county hospital in the absence of
specific statutory suthorit,y for such a lease. It would be non-
sensical to conclude that even though article 1577 does not authorize
the sale or lease of a cow&y hospital, its provisions are mandatory
when a county hospital is sald or leased pursuant to another statute.

     The establishment and aiaintenance of hospitals is an important
and unique county function. Consequently, the legislature has enacted
a wide range   of statutes 5;overning county hospitals. See, e.g.,
V.T.C.S. arts. 4478 throu@;h 4494r-4; V.T.C.S. arts. 4437 through
4437d.   In our opinion a statute that specifically refers to a
county's power with regard to a county hospital applies to the
exclusion of a relevant statute that deals with a county's powers
generally. See State v. .A=,      570 S.W.Zd 122 (Tex. Civ. App. -
Austin 1978,Twrit).

                             SUMMARY

             A county is n#,I:required to comply with the
          public auction ,:equirements of article 1571,
          V.T.C.S., when ii: sells a hospital pursuant to
          article 44941 or rrticle 4437e-2, V.T.C.S.




                                       JIM     MATTOX
                                       Attorney General of Texas



                                D. 1528
Honorable William A. Ewert, Jr. - Page 3   (JM-335)




                        I
TOM GREEN
First Assistant Attorney*Genc!ral

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Conrmittee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




                                p. 1529
