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Honorable Ned Grange?                           Opinion No.       M-845
County Attorney
Travis County Courthouse                        Re:    Whether an independent am-
Austin,  Texas 78711                                   bulance service employed by
                                                       Travis County to provide am-
                                                       bulance service in Travis
                                                       County may ucle the public
                                                       streets of the City of ~Austin
                                                       without securing a franchine
.Dear Mr.    &anger:                                   from the City.

         Your    recent   letter   requesting    the opinion   of this office    concerning
the referenced     matter    pose,   the following    question:

                   “May     an independent      ambulance   service       em-
         ployed by Travis County to provide service                in said
         County use the public streets of the City of             Austin
         without securing a franchise  from the City              if it meets
         all standards required by the City cave the               securing
         of a franchise? ‘3

        Your letter also informs us that Ordinance                No.     67051 1-I (part 1)
of the City of Austin provides as follows:

                 “No person shall engage in furnishing trans-
         fer or ambulance   service by operating or driving or
         causing to be operated or driven an ambulance or
         transfer vehicle upon the public streets of the city,
         without firet having obtained a franchise   in accord-
         ance with the terms and provisions    of this article. ”

        The controlling   question presented   ia ,whether the county must ob-
tain a city franchise  to operate its ambulance     service from points outside
the city to hospitals  or other medical points within the city, or can the city
deny that right or franchise    to the county by refusal to grant the franchise.




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Honorable    Ned Granger,    page 2        (M-845)




As stated in 25 Texas Jurisprudence     599, Section 1, Franchises,
“To be a franchise  the right must be of such a nature that without
express legislative  authority, it cannot be exercised. ”

          We do not interpret the City Ordinance to apply to the county or
State, acting in a governmental     capacity,  and if it were to be so in-
terpreted,     we would be of the opinion that it could not validly require
these bodies to obtain a franchise     for the right to use the public streets
of the City in carrying on their governmental       duties within their respective
jurisdictions.

        Counties are political  subdivisions of the State and they act as
agencies for the administration   of matters that are state concerns.    They
are created by the sovereign will of the state for the purpose of discharg-
ing the state’s duties toward its inhabitants and to aid in the administration
of its governments.

                  “The powers conferred on them are more in
          the nature of duties than privileges.    As an integral
          part of the state they are said to be endowed with a
          certain amount of sovereignty    . . . ” 15 Tex. Jur. 2d
          233, Counties.    Sec. 1.

         Counties are by statute declared to be bodies corporate    and politic.
Art.   1572, V. C. S. They are empowered to appoint agents for the accomp-
lishment of purposes.authorized     by law and contracts  or acts of such agents,
when performed     on behalf of the county and within the scope of their author-
ity, effectually bind the county.    15 Tex. Jur. 2d 277, Counties,  Sec. 48, Art.
 1580, V. C. S.

        The Legislature,  by Article 4418f,   Vernon’s  Civil Statutes,     has
granted authority to the Commissioners’     Court of any county

                  II   . to appropriate  and expend money from
          the general revenues of its County for and in behalf
          of public health and sanitation within its County. ‘I

         This broad delegation    of authority   has been held by this office   to
authorize a county




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    Honorable    Ned Granger,           page 3        (M-845)



                      II
                           . to operate and maintain an ambulance
                                .   .

             service within the county if the Commissioners       Court
             determines    that such   service is in furtherance  of
             the public health and sanitation.    This authority ex-
             tends to entering into contracts with a private agency
             to provide ambulance     service,  subject to the pro-
             visions of Article III, Section 52, Texas Constitution.    I’
             Attorney General’s    Opinion No. M-385 (1969. ) In
             accord,   Attorney General Opinion No. C-772 (1966. )

             The home rule power of a city (such as Austin),       with the right
    to make its own charter so long as the provisions       are not inconsistent
    with the Constitution   or general laws, was upheld in the case of City of
    Amarillo   v. Griggs Southwest Mortuary,      Inc. , 406 S. W. 2d 230 (Tex. Civ.
    App. 1966,. error ref. , n. r. e. ) In that case, the city’s right to enact an
    ordinance regulating vehicles,    including traffic regulations,    was recog-
    nized, citing Article II, Section 5, Constitution    of Texas,    and Articles
    1175, Sections 20 and 21, 4590b,     Vernon’s   Civil Statutes.    The Amarillo
    ordinance .did not. attempt to make the obtaining of a franchise      a condition
    precedent to travel upon the streets of the city, nor was such attempted
    to be required of a county operated ambulance       service.

            Consequently,    a different question is presented here, where the
    question concerns whether obtaining a franchise        can be made a condition
    precedent to a county ambulance      service’s   right to use the public streets
    of the city in addition to compliance    with all reasonable   safety or vehicular
    traffic standards.

            It has been held that,” in case of conflict between jurisdiction    of a
    city and a county, the one serving the superior right of the public must pre-
    vail over the one serving a subordinate public purpose . . . ” McGuillin
    on Municipal Corporations,      Volume 2, Section 7. 08, pages 303-304,       citing
    Galveston v. Galveston County,       159 S. W. 2d 976 (Tex. Civ. App. 1942, error
    ref. ), holding that the city’s jurisdiction   served a “subordinate   right of
    the public” and “must
                      ”     yield to the jurisdiction   of the Commissioners’     Court
    which in their instance serves a superior right of the public. ”

             It is also        recognized   by the authorities,   that,

                     ‘1. . . if the power so to do has been conferred
             on the municipality    or a town or other political sub-


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    Honorable   Ned Granger,    page 4          (M-845)



            division of the state government,        by the legiala-
            ture . . . as upon home-rule       cities,   it may grant
            a franchise   or license to use the streets . . , The
            use of the streets may be granted for . . . an am-
            bulance service     . . . e. g., between termini within
            the municipal limits . . . ” McGuillin ~1 Municipal
            Corporations,    Vol. 12, Sec. 34. 14, pp. 45-46.
            (Emphasis    added. )

            However,   it appears   well   settled   that,

                     “The statutory charter power of a munici-
            pality to prohibit any ambulance or other motor
            vehicle for hire from using its streets does not
            carry with it the power to grant an exclusive          right
            or franchise   to one engaged in a private business
            to so use the streets for such purpose. ” McQuillin
            on Municipal Corporations,         Vol.   12, Sec. 34. 23, p.
            66; Macon Ambulance         Service,    Inc. v. Snow Proper-
            ties, ,Inc.,  12,7 S. E. 2d-598 (Ga.Sup.      1962); see also
            40, Tex. Jur. 2d 129, Mun. Corps. , Lea County Electric
            Co-op,    Inc. v. Plains,     373 S. W. 2d 90 (Tex. Civ. App.
            1963, error ref.,      n. r. e. )

            The statutory authorization   and right of the county to operate such
    an ambulance   service is not subordinate to any right of the city, and we
    are of the opinion if there is any conflict between the respective       juris-
    diction of the county and the city, the city’s jurisdiction     must yield to that
    of the county at least to the extent of any conflict.    You have advised that
    the County does not seek the right to do intra-city     business   as such, but
    seeks only the right to service county residents      not living within the city.

            We conclude   that if the county ambulance     service complies with all
    traffic and safety regulations   of the city, it has the  right to make a pickup
    out of the city and bring the patient to a hospital or the treatment facility
    within the city.  It has the right to drive over city streets in so transport-
    ing the patient without having to obtain a city franchise.      However,  it would
    not be permitted to make pickups within the city or make intra-city       transfers
    without such a franchise.




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             Honorable    Ned Granger,   page 5            (M-845)



                                             SUMMARY

                              Travis County may employ an ambulance         service
                     to provide service to county residents    residing outside
                     the City of Austin to transport   such patients from points
                     outside the city to hospitals  or other medical service
                     points within the city, thereby using the public streets of
                     the city without securing a city franchise,    providing all
                     other traffic and safety standards of the city have been
                     met.

                                                           Yours     very truly,

                                                       CRAWFORD     C. MARTIN
                                                       Attorney General of Texas




                                                                   NOLA WHITE
                                                                   First Assistant

             Prepared    by Austin Bray
             Assistant   Attorney General

             APPROVED:
             OPINION COMMITTEE

             Kerns Taylor,   Chairman
             W. E. Allen.  Co-Chairman

             Max Hamilton
             2. T. Fortescue
             Kenneth Nordquist
             Jim Swearingen

             MEADE F. GRIFFIN
             Staff Legal Assistant

             ALFRED      WALKER
             Executive   Assistant


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