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                            June 27, 1989



    Honorable Joe Lucas               Opinion No.   JM-1064
    El Paso County Attorney
    City-County Building, #201        Re: Authority of a commis-
    El Paso, Texas   79901            sioners court to remove a
                                      member  of the' board     of
                                      managers of a hospital dis-
                                      trict created under article
                                      4494n, V.T.C.S.   (RQ-1622)

    Dear Mr. Lucas:

         You ask two questions regarding the removal of a member
    of the board of managers of a county hospital      district.
    First you ask whether the County Commissioners Court of El
    Paso County has the authority to remove, without cause, a
    member of the Board of Managers of El Paso County Hospital
    District and replace him with another appointee.

         You tell us   that the El Paso County Hospital   District
    [hereinafter the   district] was created pursuant to article
    4494n, V.T.C.S.    Section 5 of that article provides for the
    appointment of a   board of managers as follows:

              The Commissioners   Court shall aonoint   a
           Board of Hospital Managers, consisting of not
           less than five (5) nor more than seven     (7)
           members, who shall serve for a term of two (2)
           years, with overlapping terms if desired,  and
           with initial appointments   to terms of office
           arranged accordingly, without pay, and whose
           duties shall be      to manage,   control  and
           administer the hospital or hospital system of
           the Hospital District.   (Emphasis added.)

    V.T.C.S. art. 4494n, 5 5.    Neither that section nor any
    other section of article 4494n provides for the removal of
    managers.

         In   answering your question, we must first decide
    whether   the managers  of county hospital districts are




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officers or employees.    In Attorney General Opinion M-409
(1969), this office    found that a member of a board of
managers of a hospital district created under article 4494n,
V.T.C.S., holds a position of honor and trust under article
XVI, section 33, of the Texas Constitution.    That opinion
stopped short of declaring that the position is an office,
because that conclusion was not required for the purposes of
the opinion. We have considered the powers vested in the
board of managers and have concluded that such managers  are
public officers.

     In the earlier opinion, this office relied on the
classic definition   of  l'office,*l which distinguishes  an
office from an employment in that the former involves the
exercise of any sovereign   function of government for the
benefit of the public largely independent of the control  of
others. Attorney   General Opinion M-409 (1969) at 2; see
f&g Aldine IndeD. School Dist. v. Standley   280 S.W.2d 578
(Tex. 1955); Dunbar v. Brazoria'Countv, 224'S.W.2d 73% (Tex.
Civ. App. - Galveston 1949, writ ref'd).

     When article    4494n was    originally  enacted, the
following provision  prevented  the board from functioning
"largely independent of the control of others":

        The Board shall     be responsible   to    the
        Commissioners Court for the operation of   the
        hospital,   and individual members may      be
        removed for cause.

Acts 1953, 53d Leg., ch. 266, 5 4, at 692-693.

     The deletion of that language in 1955 reflects a legis-
lative intent to make the board more independent     of the
commissioners court and to change membership   on the board
from one of agency or employment to that of an office.   See
Acts 1955, 54th Leg., ch. 257, g 5, at 719. That interpre-
tation is reinforced   by the emergency clause in the bill,
which based the emergency on "[t]he fact that the present
laws do not provide sufficient details as to the powers,
duties, responsibilities   and methods of creation   and of
operation of Hospital Boards . . . .I* Id. 5 17, at 722.

     The county commissioners   court retains some control
over the business of the district, for example, by approving
its budget and intergovernmental    contracts  and by pre-
scribing purchasing  and accounting procedures.     V.T.C.S.
art. 4494n,  §§ 5, 6, 8.    Section 5  of the  act,  without




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making the board responsible  to the commissioners     court,
authorizes the board of managers    to manage,   control and
administer the hospital or hospital   system. That section
also authorizes  the board to sue and be sued, appoint
hospital staff, hire an administrator,     commission   peace
officers, and keep its own seal.    Additionally, section 9
authorizes the district to exercise the power of eminent
domain.

     For these reasons, we believe that the board of
managers exercises sovereign functions of government largely
independent of the control of others, and that the managers
are public officers. See Arseneau v. Tarrant Countv HOSD.
Dist., 408 S.W.2d 802 (Tex. Civ. App. - Fort Worth     1966,
writ ref'd n.r.e.)  (public hospital  is performing  govern-
mental function in providing medical care to indigents).

     Having determined    that the district's  managers   are
public officers, we can answer your first question.   It has
long been established in Texas law that where an officer has
a set term, as opposed to serving at the pleasure of the
appointing   authority,   the appointee  is not subject to
removal at the will of the appointing authority.   Dorenfield
v. State, 73 S.W.2d 83 (Tex. 1934); Rovston v. Griffin,    42
Tex. 566    (1875).   As noted above, managers     of county
hospital districts      established  under  article    4494n,
V.T.C.S., are appointed for a term of two years.     APPlYiw
the rule set out in Rovston, the managers are not subject to
removal without   cause by the commissioners     court which
appoints them. V.T.C.S. art. 4494n, § 5.

     In the alternative,  you ask whether a member of the
Board of Managers of the El Paso County Hospital District is
a "county officer" and subject to removal under the pro-
visions of article V, section 24, of the Texas Constitution
and section 87.011 et sea. of the Local Government Code.

      Article V, section 24, of the Texas Constitution   reads
as follows:

           County Judges, county attorneys, clerks of
        the District and County Courts, justices of
        the peace, constables,    and other     county
        officers, may be removed by the Judges of the
        District Courts for incompetency,    official
        misconduct,    habitual    drunkenness,     or
        other causes defined by law, upon the cause




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Honorable Joe Lucas - Page 4   (JM-1064)




        therefor being set forth in writing and    the
        finding of its truth by a jury.

There are several   factors that lead us to believe       that
county hospital  district managers   are included    in   this
constitutional provision as "other county officers."

     First, the hospital   district is generally defined    in
terns of     the   county.   The   constitutional    provision
authorizing the creation of these districts authorizes     the
creation of "county-wide Hospital Districts."     Tex . Const.
art. IX, 5 4. The county electorate authorizes the creation
of the district.    The district's tax base is identical to
that of the county. The boundaries of the district are the
same as those of the county, thus limiting the geographical
area in which the board of managers     fulfills its govern-
mental purpose of providing medical care to the indigent.
See id .; V.T.C.S. art. 4494n, § 1.

     Second, persons holding    other positions   that   are
denominated as *'district" positions have been  found to be
"other county officers" within the terms of the constitu-
tional provision.  See Enaleman Land Co. v. Donna Irriaation
Dist. No. 1,  209 S.W.  428 (Tex. Civ. App. - San Antonio
1919, writ ref'd) (director of irrigation district is county
officer within removal provision);  Hendericks v. State, 49
S.W. 705 (Tex. Civ. App. 1899, no writ) (school district
trustee is county officer within removal provision).

     Finally, as noted above, the county commissioners court
retains some control over the affairs of the district.     In
addition to appointing the board of managers, V.T.C.S.   art.
4494n, 5 5, the county commissioners  court has the duty to
levy a tax for the district.    Id. 5 2. The commissioners
court also may prescribe purchasing   and accounting   proce-
dures, id. 5 6, and it must approve the district's    budget.
Id. 5 8.   While at one time the board of managers        was
completely responsible to the commissioners   court for the
operation of the hospital district,    the legislature    has
retained these significant ties between the district and the
county.

     We conclude that members   of a board of managers of a
county hospital  district established   under article 4494n,
V.T.C.S., are county officers,     and, as such, they are
subject to removal under the terms of article V, section 24,
of the Texas Constitution     and chapter  87 of the Local
Government Code.




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Honorable Joe Lucas - Page 5     (JM-1064)




                       SUMMARY

           Members of a board of managers of a county
        hospital district established under article
        4494n, V.T.C.S.,   are county officers and
        subject to removal under the terms of article
        V, section 24, of the Texas Constitution  and
        chapter 87 of the Local Government Code.




                                   JIM     MhTTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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