          PRICE  DANIEL
          ATTORNEYGENERA,.
                                        May 16, 1952


                   Hon. Hal H. Booko,ut      Opinion No.   v-1457
                   County Attorney
                   Navarro County            Re:   Authority of the Commis-
                   Corsicana, Texas                sioners ' Court to lease
                                                   or sell a hospital build-
                                                   ing to a non-profit pri-
                                                   vate organization for
                                                   operation as an old folks'
,,   ‘,            Dear Sir:                       home.

                             You have requested an opinion of this of-
                   fice in which you submit the following facts:

                              "The Navarro County Memorial Hospital
                         is under construction and will be ready for
                         use as a County Hospital In July, 1952.
                         When the new hospital is completed and is
                         occupied, Navarro County will no longer have
                         need for the old Physicians' & Surgeons'
                         Hospital building and premises.

                               "The old P & S Hospital has been
                         operated as a county institution and as
                         a hospital for about thirty years. The
                         building is old and in much need of repairs.
                         Navarro County has no need for this build-
                         ing and premises in that all equipment and
                         furnishings now in the old hospital build-
                         ing will be moved to the new hospital, and
                         the old hospital will be entirely abandoned.

                              "The Commissioners' Court appointed a
                         committee of respectable citizens to inves-
                         tigate the need for a home for the needy,
                         aged and senile, and the suitability of the
                         P & S Hospital property for such purposes.
                         The committee, after a thorough investiga-
                         tion, reported that there existed in this
                         county a great need for such an institution
                         and recommended the use of the old hospital
                         property for such purposes.

                               "The county, because of llmited
Hon. Hal H. Booko,ut, page 2   (v-1457)



     finances, cannot operate such an old
     folks' home, and further, county opera-
     tion would result In the loss of Old Age
     Assistance checks to those who might de-
     sire to take advantage of such a rest
     home.

          "A group of responsible interested
     citizens met and decided to ask the coun-
     ty to sell at a nominal figure or to lease
     for a small monthly rental the old hospital
     premises, the deed or lease to be made to
     Trustees of the Navarro County Old Folks'
     Home, a non-profitable organization to be
     organized and to be governed by Trustees.
     The control of the home will be vested In
     citizens chosen from the county at large,
     and these Trustees may be appointed by'.
     the Commissioners' Court if so desired.
     The institution will be operated and main-,
     tained at no expense to the county and as
     a non-profit organization.

           "The old folks who will live In the
     home will pay a nominal sum for their ac-
     comodations when they are,financially able
     to' do so, but none will, be refu,sed admls-
     sion solely because of lack of funds.

          "Either a long term lease ora pur-
     chase at private sale at a reasonable-sum
     will be acceptable to those who are will-
     ing to underyrite the project. If a lease
     is made, a clause authorizing the,Commis-
     sioners' Court to terminate the lease if
     the home is not operated fairly and in com-
     pliance with its requirements will be ac-
     ceptable."

          Then you ask:

          "1 . Whether or not the Commissioners
     Court is empowered to call an election, to
     ascertain whether or not the people of Navar-
     ro County desire,the old hospital building
     to be used and operated crlvately as an old
     folks' home.
,




    Hon. Hal H. Bookout, page 3   (V-1457)



              "2 . Whether or not the Commissioners
         Court of Navarro County can lease the hos-
         pital properties for a nominal considera-
         tion and restrict the use to an old folks'
         home to be operated privately on a profit
         or non-profit basis.

              “3 . Can property, under Art. 1577,
         be sold with restrictions or stipulations
         in the order of sale that the property be
         used afte: the sale for only philanthropic
         purposes.

              The decisions of the Texas courts have re-
    peatedly held that the commissioners' court is a
    court of limited jurisdiction and has only such pow-
    ers as are conferred upon it by the statutes and
    Constitution of this State, either by express terms
    or by necessary implication.
    State, 127 Tex. 343, 92 S.W.2             ; Von Rosen-
                    173 S.W. 508 (Tex. Civ. App.1915,
                          Hall, 280 S.W. 289r(Tex. Civ.
    APP. 1925).
              We know of no statute authorizing a county
    to call an election for such a purpose. Neither is
    there a law which authorizes a county to lease its
    hospital building that is no longer used as a hospital.
    Although Section 2 of Article 1577, V.C.S., authorizes
    certain counties to lease their property, It has no ap-
    plication to Navar o County because of the population
    brackets fixed the ein. In Attorney General's Opinion
    v-1085 (1950), it E as held that a county which did not
    come within Section 2 of Article 1577 had no authority
    to lease its property. Therefore, both of your first
    two questions are answered in the negative.

              Article 1577, V.C.S., provides in part:

             "Section .l. The Commissioners Court '
        may, by an order to be entered on its minutes,
        appoint a commissioner to sell and dispose
        of any real estate of the county at public
        auction. The deed of such commissioner,
        made in conformity to such order for and
        in behalf of the county, duly acknowledged
        and proven and recorded shall be sufficient
        to convey to the purchasers all the right,
        title, and interest and estate which the
Hon. Hal II. Hookout, page 4   (V-1457)



     county may have in and to the premises to
     he conveyed. Nothing contained in this
     article shall authorize any Commissioners
     Court to dispose of any lands given, do-
     nated or granted to such county for the
     purpose of education in any other manner
     than shall be directed by law."

          The above statute does not authorize a
private sale of property by a county, but requires
that it be made at public auction. Ferguson v. Hal-
m,    47 Tex. 421 (1877).  Moreover, in Llano Count
v. Johnson, 29 S.W. 56 (Tex. Civ. App.
stated:

          "It is next contended that the order
     of the commissioners' court of Llano county,
     authorizing the land to be sold, and the sale
     thereof to Johnson, was unauthorized, because
     it was.'virtually a donation and disposition of
    'the lands of the co,unty for purposes not au-
     thorized by law; and that the order requiring
     the purchaser to erect suitable buildings
     thereon, and to use the same for 10 years
     for educational purposes, was imposing and,
     attaching to the purchase of the property
     illegal conditions, which were calculated
     to deter bidders, and to defeat the policy of
     the law requiring counties to only dispose
     of their real estate at public auction to
     the highest and best bidder therefor.    . . .
     The commissioners' court of the county oc-
     cupy towards its property a trust relation,
     and they can only dispose .of its property
     in the manner required by law, and for pur-
     poses that are in keeping with the trust they
     represent. They have no right to donate the
     county property or dispose of it so as to
     virtually amount to a donation.   It is a
     trust estate, and principles of equity will
     not permit them to be liberal and generous
     with property they do not own, and which
     they hold in trust  for public purposes. The
     order of the court in question, and the deed
     exec,uted to Johnson, show that the property
     was sold for a nominal sum, and that it was,
     in effect, donated to the purchaser for edu-
     cational purposes. This was clearly unau-
     thorized. The property, so the deed recites,
Hon. Hal H. Bookout, page 5        (V-1457)



        was sold under the semblance of a p,ublic
        sale, to the highest bidder; but, being
        sold under the order set out, that required
        it to he sold and used for educational pur-
        poses, was well calculated to deter and hinder
        a sale of the property for a fair price; and
        the conclusion is irresistible that;the con-
        sideration for the sale was not the nominal
        sum mentioned in the deed, but was the use
        of the property for educational purposes.
        . . .11

          In view of the foregoing, it is our opin-
ion that the county cannot sell property with the
restriction that it be used only for philanthropic
purposes.

           If sale at public a,uction without restric-
tions will not accomplish the purpose desired by the
co,unty, it is suggested that this matter be called to
the attention of the Legislature to the end that ap-
propriate legislation may be enacted authorizlng the
leasing of the property In question.

                         SUMMARY

             There is no law authorizing a county
        to call an election to determine if a county-
        owned building formerly used as a hospital
        should be leased. Neither is there a law
        which authorizes Navarro County to lease
        such building. Section 1 of Article.:1577,
        V.C.S., req,uires that co,unty real estate
        which is to be disposed of must he sold at
        public auction and without restrictions.
        Ferguson v. Halsell, 47 Tex. 421 (1877);
        Llano County v. Johnson, 29 S.W. 56 (Tex.
        Civ. App. 1895). An act of the Legislature
        would be required in order to authorize the
        leasing of the property in question.

APPROVED:                             Yours very truly,

J. C. Davis, Jr.                        PRICE DANIEL
                                      Attorney General
Mary K. Wall
Reviewing Assistant
Charles D. Mathews                    BY&&&&
First Assistant
                                              Assistant
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