Attorney General Opinion WW-1332

GENERAL THE ATTORNEY OF TEXAS Honorable Clyde Boose Nolan County Attorney P. 0. Box 1200 Sweetwater, Texas Opinion No. WW-1332 Re: Whether the Commissioners' Court of Nolan County may legally approve expendl- tures for a hospital laundry under the stated facts and Dear Mr. Boose: related questions. Your request for opinion from this office reveals that in 1956 Nolan County and the City of Sweetwater entered Into a joint agreement for the operation of a city-county hospital, pursuant to Article 44941 of Vernon's Civil Statutes. Two pertinent paragraphs of this agreement state as follows: "9 . It is stipulated that the City shall have right to remove for cause any member of the Board of Managers appointed by the City Commission; the County Commlssloners Court shall have the right to remove for cause any member of the Board of Managers appointed by the County; the member of the Board of Managers appointed jointly by the City and County shall be removable for cause by the joint action of the City Commission of the City of zy;i&;;er and the Commissioners Court of County II . . . “14. It is speclficallv anreed that the Board of Manaaers shall not make any exDenditure not covered bs its budget as approved by the Clts and County exceDt with the specific Dermlsslon and con- sent of the Cltv Commission of the Clts of Sweet- water and the Commissioners Court of Nolan Counts, Texas." (Emphasis added) Further facts are that the Board of Managers recently expended close to $30,000.00 for the construction and equipping of a hospital laundry which was an unbudgeted Item. No permls- sion was obtained from either the City Commission or the . . Honorable Clyde Boose, Page 2 (WW-1332) Commissioners' Court. the building, but were Bids were advertised and received on _ _ . -.. not on tne laundry equipment. It 1s further slgnlflcant that in October of 1961, the Commissioners' Court of Nolan County approved the budget for the hospital which did not include the laundry. You then ask the following three questions: "(1) Can'the Commissioners Court of Nolan County legally approve these expenditures since the building was not a budgeted Item nor was any single Item of the laundry equipment shown In their budget, and no permission of any kind was sought or obtained from either governmental unit. "(2) Would the City and County be liable for these expenditures not authorized by the hospital budget or any other form of authorization from the governmental units? Would such action on the part of the Board of Managers be cause for their removal as board members? " 3) In regard to Attorney General's Opinion No. A ~6 3 dated 1948, could you advise me what would be Included in materials and supplies in excess of $150.00 and what would be meant by con- tracts in excess of $2,000.00?" Article 44941 provides in part as follows: "Section 1. Any county of the State and any incorporated city or town within such county, act- ing through the Commissioners Court of such county and the governing body of such city or town, may jointly establish, erect, equip, maintain and operate a hospital or hospitals for the care and treatment of the sick, infirm, and/or injured; and for the purposes of establishing, erecting, equip- ping, maintaining and operating such a hospital or hospitals, the Commissioners Court of any county and the governing body Of any city or town within such county may, by resolution or other appropriate action, confer upon, delegate to and grant to a Board of Managers, as hereinafter provided, full and complete authority to establish, erect, equip, maintain and operate such hospital or hospitals. Such cities or towns and counties that have hereto- fore issued and sold bonds for the specific purpose of jointly establishing, erecting, equipping, maintaining and operating such joint county-city. . Honorable Clyde Boose, Page 3 (WW-1332) hospital may finance,such hospital or hospitals out of general revenues and are each, respectively, hereby authorized to levy and collect a tax, not to exceed Ten (10) Cents per one hundred dollar valuation on the property subject to taxes therein, for such purposes. I, .,. . "Sec. 4. Such Board of Managers ahall have full and complete authority to enter Into any contract connected with or Incident to the estab- lishment, erection, equipping, maintaining or operating such hospital or hospitals, and in this connection shall have authority to disburse and Pay out all funds set aside by such county and such.clty or town for purposes connected with such hospital or hospitals, and such action by such city or town as though such action had been taken by the Commissioners Court of such county or governing body of such city or town. ‘Sec. 5. Once each Near such Board of Mananers shall DreDare and Dresent to such Com- missioners Court and the noverninn body of such city or town a comDlete financial statement of > and shall submit therewith a DroDosed budnet of the anticiDated financial needs of such hOsDita1 or hosoitals for the ensulna year. On the basis of such financial statement and budnet the Commissioners Court of such county and the aovernlnn body of such clts or town shall aDDroDriate or set ~aslde for the use of such Board of Managers In the oDeratIon of such hosDita1 or hosDitals the amount of money which seems DroDer and necessary for such DurDose. II . . . “Sec. 7. In.connectlon with the erection and equipping of such hospital or hospitals said Board of Managers shall have the authority to determine the manner of ,expending any funds that may have been provided by such county and such city or town.. for such purpose, whether by the Issuance of bonds or other obligations, or by appropriations from other funds of such county and city or town, It be- ing the lntent?.on by this Act to grant to such Boards.the complete authority to manage and control all matters affecting such hospitals, reserving.to Honorable Clyde Boose, Page 4 (WW-1332) such county and city or town the right only to ap- point members to such Board of Managers and to approve the annual budget hereinabove provided for." (Emphasis added) We feel that the leglslatlve intent of Article 44941 was that the annual budget was to be a complete financial state- ment of condition of the city-county hospital. It therefore follows that since the amounts expended for the hospital laundry were unbudgeted, the expenditures were unauthorized ones. Many opinions from this office have held that the commissioners' court Is a court of limited jurisdiction and does not have any power unless expressly given to it by the consti- tution or the statutes. An Inspection of Artlclo 2351 et seq. of Vernon's Civil Statutes reveals that there Is no:statute allowing the commls- sioners ' court to make contracts at their discretion; such power If exercised must be delegated to them or reasonably in- ferred from the Constitution or the statutes. In Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948), the Supreme Court stated: "The Constitution does not confer on the commissioners courts 'general authority over the county business' and such courts can exercise only such powers as the Constitution Itself or the st~atutes have 'specifically conferred upon them'. . . . While the commissioners courts have a broad discretion In exercising powers expressly conferred on them, nevertheless the legal basis for any action by any such court must be ultimately found in the Constitution or the statutes." For other cases denying the use of implied powers in absence of a statute, see uv. 110 Tex. 179, 217 S.W. 373 (1919); Moon v. Alred, 277 S.W. 787 (Clv.App. 1925, error dlsm. w:;o.. j.); Hill v. Sterrett, 252 S.W.2d 766 (Civ. App. 1952, error ref. n. r. e.). . Since the legislature has provided for the establlsh- ment, operation and management of city-county hospitals, It therefore follows that the commissioners' court had no power to make the agreement set out In paragraph 9. Section 2 of Article 44941 provides for the selection of members of the Board of Managers and states how their successors shall be selected. Any attempt by the clty,and county to otherwise control the selection is Invalid, and therefore we must hold Section 9 of the agree- ment to be void. However, Section 14 of the agreement is In line with the rrovislons of Article 44941 and is therefore a valid provision. Honorable Clyde Boose, Page 5 (WW-1332) Numerous court decisions of this state have held that if the Commlssloners' Court Initially had the authority to make a contract, and that if any unauthorized action is taken without their approval, that they may subsequently ratify same, which will then become binding. We quote from Galveston County v. Gresham, 220 S.W. 560 (Clv.App. 1920, error ref.) -563: as follows at "'A contract made in the name of a Com- missioners' Court by an unauthorized par:% may be ratified by a formal order; . . . Here we are not concerned with a contract made by the commissioners' court but only with thelr approval of a contract or action taken by another body. Under these circumstances we advise you that the Commissioners' Court of Nolan County may now ratify and approve expenditures made by the Board of Managers if they so desire. Boydstun v. Rockwall Count& 86 Tex. 234, 24 S.W. 272 (1893), Galveston County v. Gresham, su ra, Williams v. Pure 011 Co., 124 Tex. 341, 78 S.W.2d 929, 931 7" 1935). As to.your second question, If the Commissioners' Court does not ratify the expenditure of the Board of Managers, It follows that the unbudgeted and unauthorized expenditures do not bind the County or the City as a contractual act. You then ask if the action of the Board of Managers would be cause .for their removal. Since our opinion holds Section 9 o? the agreement Invalid, we must hold that neither the city commission nor the county commissioners' court may remove any members for cause by virtue of said agreement. In this connection, however, we refer yoti to Article 5970, Vernon's Civil Statutes, which provides-that county officers may be removed from office for lncompentency, official misconduct, etc. We also refer you to Section 4 of Article 5.of.the Texas Constitution and J. C. Ennleman Land Co. v. Donna Irrlnatlon Dist, 1209 S.W. 42-v. App. writ ref. 1919) which holds that a director of an lrr$gatlon district can be tiemoved only as prescribed in Article 5970, and Hendricks v. Stat=, 4g.S.W. 705 (Clv.App. 18%) which made the same holding in reference to school trustees. Regardln Opinion No. v-683 7 your third question, In Attorney General's 1948) we find the following conclusions: "It is our opinion that the Board of Managers of a City-County hospital operating under the pro- visions of Art. 44941, does not have to advertise for bids for materials and supplies in excess of $150.00 or on contracts in excess of $2,030.00 as provided in Articles 1659 and 2368a, V. C. S." . . Honorable Clyde Boose, Page'6 (WW-1332) Since the Board of Managers may make contracts for or purchase supplies and materials without complying with the requirements of Articles 1659 and 2368a, It therefore follows that it Is unnecessary to answer your third question. SUMMARY The Commissioners' Court of Nolan County may legally approve and ratify a previous unauthorized expenditure of the Board of Managers of a city-county hospital if they see fit. If they do not so approve and ratify, the City of Sweetwater and the County of No-an are not legally liable for the unauthorized expenditures under an un- authorized contract. The Commissioners Court and the city commission has the right only to appoint members to such Board of Directors and may not by an agreement assume the power to discharge the Board of Directors. The provisions of Articles 1658, 1659, and 2368a do not apply to a city-county hospital established pur- suant to Article 44941 of Vernon's Civil Statutes. Sincerely yours, WILL WILSON ,:~~~iii$Gq- Assistant FDW:jkr APPROVED: OPINION COMMIT'X!EE W. V. Geppert, Chairman J. C. Davis Marvin Sentelle Bob Patterson Malcolm Quick REVIEWRDFORTHRAlTCRNHYGRNRRAL BY: Houghton Brownlee, Jr.