Can a Texas county open or operate a hospital clinic in a neighboring county without that county's permission?

TX AG Opinion GA-0552: Can a county run a hospital clinic in the next county over?

Plain-English summary

Yoakum County runs the Yoakum County Hospital, located in Denver City, a town that straddles the line between Yoakum County and neighboring Gaines County. Part of Gaines County, including the town of Seagraves, was not covered by any hospital district or other governmental health care entity. The Yoakum County District Attorney asked the Attorney General whether the County could own or operate a medical clinic across the line in Gaines County without getting Gaines County's consent.

The Attorney General said yes, provided the County makes the right findings. A county and its hospital board of managers can exercise only the powers the law expressly gives them plus those necessarily implied. Chapter 263 of the Health and Safety Code, which governs county hospitals, does not expressly say a county hospital may operate a clinic in an adjacent county without an agreement, but it does not expressly forbid it either. The key provision is section 263.022(c), which lets a commissioners court "purchase or lease real or personal property . . . in an adjacent county if the court considers the purchase or lease necessary for hospital purposes." On its face that provision lets the County acquire property in an adjacent county when the court finds it necessary for hospital purposes, and it does not say the adjacent county has to agree. "Hospital purposes" can include setting up a medical or other health facility under section 263.021(a), which the opinion read to include a clinic.

Because whether a given acquisition is "necessary for hospital purposes" turns on facts, the commissioners court has to make that call in the first instance, subject to court review for abuse of discretion, and the Attorney General does not decide fact questions. Likewise, before spending county money on the clinic, the commissioners court must determine that the expenditure serves a legitimate county purpose, because the constitution bars spending public funds for private purposes and limits the purposes for which a county may tax. The opinion also addressed other parts of chapter 263 that require a contract between counties before a county hospital serves another county's residents. Those provisions, it explained, govern caring for another county's residents and do not limit a county's separate authority under section 263.022(c) to acquire and operate a clinic on its own. The legislative history of section 263.022(c) backed this up: the bill's sponsor described it as letting a county hospital buy land in another county and put up a clinic to operate as part of the county hospital. Once the County makes the required findings and acquires the property, the hospital board of managers has express authority to manage the facility, its personnel, and its patients.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Health and Safety Code chapter 263 provisions on county hospitals and the constitutional limits on county spending may have changed since 2007. Confirm the current text of Health and Safety Code section 263.022 and related sections before relying on this analysis.

Who this opinion affected (as of 2007)

Counties operating county hospitals: The opinion told them that section 263.022(c) gave authority to purchase or lease property, including a clinic, in an adjacent county without that county's consent, so long as the commissioners court found the acquisition necessary for hospital purposes and the spending served a county purpose.

County commissioners courts: The opinion put the fact-finding on them. They had to determine, in the first instance and subject to judicial review for abuse of discretion, whether a particular out-of-county acquisition was necessary for hospital purposes and served a legitimate county purpose.

Adjacent counties and their hospital districts: The opinion explained that an adjacent county's consent was not required for a neighboring county to acquire a clinic under section 263.022(c), and that the chapter 263 sections requiring inter-county contracts addressed caring for another county's residents, not this acquisition authority.

Residents of underserved areas near a county line: The opinion treated the arrangement as a way a county hospital could extend a clinic into a neighboring area that lacked governmental health care coverage, subject to the county's required findings.

Common questions

Can a Texas county build or operate a clinic outside its own borders?
Under this opinion, yes, in an adjacent county. Health and Safety Code section 263.022(c) lets a commissioners court purchase or lease property in an adjacent county if it finds the acquisition necessary for hospital purposes.

Does the neighboring county have to agree first?
No. The Attorney General read section 263.022(c) as not requiring the adjacent county's consent. The provision turns on the commissioners court's finding that the acquisition is necessary for hospital purposes.

What findings does the commissioners court have to make?
It must determine that the acquisition is "necessary for hospital purposes" and, before spending county funds, that the expenditure serves a legitimate county purpose. Both are decided in the first instance by the court, subject to judicial review for abuse of discretion.

Don't other parts of the hospital law require a contract between the counties?
Some sections require an inter-county contract before a county hospital serves another county's residents, but the opinion concluded those address caring for another county's residents and do not limit a county's separate authority under section 263.022(c) to acquire and run a clinic on its own.

Background and statutory framework

Section 263.021(a) of the Health and Safety Code allows a county commissioners court to establish a county hospital or medical or other health facility for the care of the sick or injured, governed by a board of managers that generally manages and controls the hospital, its buildings, employees, and patients (Tex. Health & Safety Code Ann. ch. 263 (Vernon 2001 & Supp. 2006); § 263.021(a), § 263.046(a), § 263.041(a) (Vernon 2001)). The commissioners court and the board of managers may exercise only expressly conferred powers and those necessarily implied (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); Mascarenhas v. Meridian Hosp. Auth., 560 F.2d 683, 685 (5th Cir. 1977); Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940); Jackson County Hosp. Dist. v. Jackson County Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-Corpus Christi 1984, no writ)).

Chapter 263 neither expressly permits nor expressly prohibits a county hospital from operating a clinic in an adjacent county absent an agreement (see Tex. Health & Safety Code Ann. § 263.001(a), § 263.028, § 263.080 (Vernon 2001)). But section 263.022(c) lets a commissioners court purchase or lease real or personal property in an adjacent county if it considers the purchase or lease necessary for hospital purposes, without requiring the adjacent county's consent, and hospital purposes may include establishing a medical or other health facility under section 263.021(a), which the opinion read to include a clinic (Tex. Health & Safety Code Ann. § 263.022(c), § 263.021(a) (Vernon 2001)). Whether a particular acquisition is necessary for hospital purposes is a fact question for the commissioners court in the first instance, subject to judicial review for abuse of discretion (Wichita County v. Bonnin, 182 S.W.3d 415, 420 (Tex. App.-Fort Worth 2005, pet. denied)).

Before spending county funds to own or operate the clinic, the commissioners court must determine the expenditure serves a legitimate county purpose, because the constitution prohibits spending public funds for private purposes and limits the purposes for which a county may tax (Tex. Const. art. III, § 52(a); art. VIII, § 9(b)). The opinion read the chapter 263 sections that require an inter-county contract, sections 263.028 and 263.080, as governing care for another county's residents, not as limiting section 263.022(c) authority; section 263.050(a), permitting a board of managers to establish and operate a clinic at or near the hospital, likewise neither requires the nearest municipality to be in the same county nor forbids operating a clinic acquired under section 263.022(c) (Tex. Health & Safety Code Ann. § 263.028, § 263.080, § 263.050(a) (Vernon 2001); Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex. App.-Dallas 2002, pet. denied); Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex. 1936)). Once the County makes the required determinations and acquires the property, the board of managers may manage the facility, personnel, and patients consistently with legal requirements (Tex. Health & Safety Code Ann. § 263.046(a) (Vernon 2001)).

Citations

Constitution and statutes:

• Tex. Const. art. III, § 52(a)
• Tex. Const. art. VIII, § 9(b)
• Tex. Health & Safety Code Ann. ch. 263 (Vernon 2001 & Supp. 2006)
• Tex. Health & Safety Code Ann. § 263.021(a) (Vernon 2001)
• Tex. Health & Safety Code Ann. § 263.022(c) (Vernon 2001)
• Tex. Health & Safety Code Ann. § 263.041(a)
• Tex. Health & Safety Code Ann. § 263.046(a) (Vernon 2001)
• Tex. Health & Safety Code Ann. § 263.001(a) (Vernon 2001)
• Tex. Health & Safety Code Ann. § 263.028 (Vernon 2001)
• Tex. Health & Safety Code Ann. § 263.050(a) (Vernon 2001)
• Tex. Health & Safety Code Ann. § 263.080 (Vernon 2001)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Mascarenhas v. Meridian Hosp. Auth., 560 F.2d 683, 685 (5th Cir. 1977)
• Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940)
• Jackson County Hosp. Dist. v. Jackson County Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-Corpus Christi 1984, no writ)
• Wichita County v. Bonnin, 182 S.W.3d 415, 420 (Tex. App.-Fort Worth 2005, pet. denied)
• Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex. App.-Dallas 2002, pet. denied)
• Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex. 1936)

Attorney General opinions referenced: GA-0446 (2006), GA-0059 (2003), LO-97-068.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0552
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0552.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

June 25, 2007

The Honorable Richard Clark
Yoakum County Criminal District Attorney
Post Office Box 359
Plains, Texas 79355

Opinion No. GA-0552

Re: Whether a county may own or operate a medical clinic in an adjacent county without the adjacent county's consent (RQ-0560-GA)

Dear Mr. Clark:

You explain that Yoakum County (the "County") created the Yoakum County Hospital under the statutory predecessor to chapter 263 of the Health and Safety Code "to provide medical services to the people of" the County.[1] See TEX. HEALTH & SAFETY CODE ANN. ch. 263 (Vernon 2001 & Supp. 2006). The hospital, you state, is located in Denver City, "which sits on the [southern] border of [the County] and neighboring Gaines County."[2] Request Letter, supra note 1, at 1. A briefer has further informed us that while Gaines County has a hospital district, neither the Gaines County hospital district nor any other governmental health care entity covers "the municipality of Seagraves in the northern portion of Gaines County."[3] You therefore ask whether the County may own or operate a medical clinic in an adjacent county without the adjacent county's consent. See Request Letter, supra note 1, at 1, 5. Our answer is limited to the circumstances as you present them.

Section 263.021(a) of the Health and Safety Code allows a county commissioners court to "establish a county hospital or . . . medical or other health facility . . . for the care and treatment of persons who are sick or injured." TEX. HEALTH & SAFETY CODE ANN. § 263.021(a) (Vernon 2001). The hospital is governed by a board of managers, which "shall generally manage and control the hospital," including its buildings, its employees, and its patients. Id. § 263.046(a); see id. § 263.041(a). The county commissioners court and the hospital board of managers may exercise only those powers that the law expressly confers upon them and those powers that may be necessarily implied from the express powers. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (commissioners court); cf. Mascarenhas v. Meridian Hosp. Auth., 560 F.2d 683, 685 (5th Cir. 1977) (quoting Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940)) (hospital authority created under Health and Safety Code chapter 262); Jackson County Hosp. Dist. v. Jackson County Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-Corpus Christi 1984, no writ) (citing Tri-City Fresh Water Supply Dist. No. 2, 142 S.W.2d at 946; Mascarenhas, 560 F.2d at 685) (hospital district created by special law).

Nothing in chapter 263 expressly prohibits a county hospital from operating a clinic in an adjacent county if the two counties have not entered an agreement, but nothing expressly permits it either. See, e.g., TEX. HEALTH & SAFETY CODE ANN. §§ 263.001(a) (Vernon 2001) (permitting two adjacent counties to join together to construct a hospital or health care facility); 263.028(a) (permitting a county that does not have a municipality with a population over 10,000 to contract with an adjacent county for the care of county residents); 263.080 (requiring a hospital superintendent to admit a person from an adjacent county if, among other things, "the adjacent county has contracted with the board of managers for the care and treatment of" county residents).

But in our opinion, section 263.022(c), together with a board of managers' general power to manage hospital facilities, personnel, and patients, implicitly provides the authority you seek.[4] Under section 263.022(c), a commissioners court may "purchase or lease real or personal property, or both, in an adjacent county if the court considers the purchase or lease necessary for hospital purposes." TEX. HEALTH & SAFETY CODE ANN. § 263.022(c) (Vernon 2001). Section 263.022(c) on its face permits the County to acquire property in an adjacent county if the court finds the acquisition "necessary for hospital purposes," without indicating that the adjacent county's consent is required. Id. Hospital purposes may include the establishment or enlargement of a "medical or other health facility" as authorized by section 263.021(a), which we interpret to include a clinic. See id. § 263.021(a). Because determining whether a particular acquisition is necessary for hospital purposes requires the resolution of fact questions, the commissioners court must make the determination in the first instance, subject to judicial review for abuse of discretion. See Wichita County v. Bonnin, 182 S.W.3d 415, 420 (Tex. App.-Fort Worth 2005, pet. denied) (indicating that a commissioners court's decisions are subject to judicial review for abuse of discretion); see also Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."); cf. Tex. Att'y Gen. LO-97-068, at 3-4 (summarizing attorney general opinions considering whether particular activities served hospital purposes consistent with article IX, section 9 of the Texas Constitution, which pertains to hospital districts). Similarly, before the commissioners court may order an expenditure of county funds to own or operate a medical clinic in an adjacent county, it must determine that the expenditure serves a legitimate county purpose.[5] See TEX. CONST. art. III, § 52(a) (prohibiting the expenditure of public funds for private purposes); id. art. VIII, § 9(b) (permitting a county to levy taxes for four constitutional purposes only); Tex. Att'y Gen. Op. No. GA-0059 (2003) at 3 (stating that county funds may be used for county purposes only). Once the County has made the requisite determinations and acquired the property, the hospital board of managers has express authority to manage the facility, personnel, and patients consistently with legal requirements. See TEX. HEALTH & SAFETY CODE ANN. § 263.046(a) (Vernon 2001).

Finally, while other sections of chapter 263 appear to require a contract between counties before a county hospital may serve residents of another county, we do not believe those sections limit the exercise of a county's authority under section 263.022(c). Section 263.028 authorizes the commissioners court of a county that does not have a municipality with a population of more than 10,000 (such as Gaines County) to "contract with . . . an adjacent county for the care of residents of the county who are sick or injured." Id. § 263.028; see also UNITED STATES CENSUS BUREAU, 2000 CENSUS OF POPULATION: POPULATION FINDER, available at http://www.census.gov/ (population of Seminole is 5,910; population of Seagraves is 2,334) (last visited June 4, 2007). In addition, section 263.080 requires a hospital superintendent to admit to the hospital "a person sent by the commissioners court of an adjacent county if . . . [among other things] the adjacent county has contracted with the board of managers for the care and treatment of persons who are sick or injured." TEX. HEALTH & SAFETY CODE ANN. § 263.080 (Vernon 2001). These sections do not forbid a county to provide health services "on [its] own volition," in the absence of a contract. Request Letter, supra note 1, at 4. Likewise, section 263.050, which permits a board of managers to "establish and operate" a clinic "at the hospital or in the municipality located nearest the hospital" or "in a municipality that is located in the county and that has 5,000 or more inhabitants," neither requires that the nearest municipality be in the same county nor forbids a board of managers to operate a clinic acquired by the county under section 263.022(c). TEX. HEALTH & SAFETY CODE ANN. § 263.050(a) (Vernon 2001).

We thus conclude that a county may purchase or lease a medical clinic in an adjacent county without the adjacent county's consent under section 263.022(c) of the Health and Safety Code if the county commissioners court determines that the acquisition is "necessary for hospital purposes" and that any expenditure of county funds serves a county purpose. Id. § 263.022(c); see Tex. Att'y Gen. Op. No. GA-0059 (2003) at 3. The hospital's board of managers may manage the facility, personnel, and patients consistently with legal requirements. See TEX. HEALTH & SAFETY CODE ANN. § 263.046(a) (Vernon 2001).

SUMMARY

A county may purchase or lease a medical clinic in an adjacent county without the adjacent county's consent under section 263.022(c) of the Health and Safety Code if the county commissioners court determines that the acquisition is "necessary for hospital purposes" and that the expenditure of county funds serves a county purpose. TEX. HEALTH & SAFETY CODE ANN. § 263.022(c) (Vernon 2001); see TEX. CONST. arts. III, § 52(a); VIII, § 9(b). Once acquired, the hospital's board of managers may manage the facility, personnel, and patients consistently with legal requirements. See TEX. HEALTH & SAFETY CODE ANN. § 263.046(a) (Vernon 2001).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Richard Clark, Yoakum County Criminal District Attorney, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas, at 1 (Jan. 8, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] The hospital's website indicates that it serves "a population area of 25,000 from western Texas and eastern New Mexico." YOAKUM COUNTY HOSPITAL, ABOUT US, available at http://www.ych.us/about.asp (last visited May 29, 2007). In addition to its hospital facility in Denver City, the hospital comprises a fitness and rehabilitation center, a dialysis treatment center, two clinics (a rural health clinic and a clinic in Plains), and home health care services. See id.

[3] Letter from Kevin A. Reed, Davis & Wilkerson, P.C., on behalf of the Texas Organization of Rural & Community Hospitals, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas, at 1 (Feb. 14, 2007) (on file with the Opinion Committee).

[4] We do not consider in this opinion whether any other legal impediment to the project exists, such as limitations in the commissioners court's order establishing the hospital or a contract with County voters. See, e.g., Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex. App.-Dallas 2002, pet. denied) (stating the "elementary" principle that "the proceeds of bonds voted by the people must be expended for the purposes for which they were voted" (quoting Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex. 1936))).

[5] Section 263.022(c)'s legislative history supports the conclusion that a commissioners court reasonably may find that acquiring an out-of-county clinic serves hospital purposes. See TEX. HEALTH & SAFETY CODE ANN. § 263.022(c) (Vernon 2001). The Legislature adopted the substance of subsection (c) in 1987. See Act of May 18, 1987, 70th Leg., R.S., ch. 737, § 1, 1987 Tex. Gen. Laws 2645, 2645. In hearings on the bill before the House Committee on County Affairs, Representative Criss, the bill's sponsor, testified that the bill would authorize the Mainland Center Hospital in Galveston County to purchase a clinic in the City of Alvin in Brazoria County "and operate [the clinic] as part of the county hospital." Hearings on Tex. H.B. 1002 Before the House Comm. on County Affairs, 70th Leg., R.S. (Mar. 17, 1987) (testimony of Representative Criss) (transcript available from House Video/Audio Dep't). In Representative Criss's words, "what this bill will allow, if a hospital . . . is servicing another county, this bill will allow them to purchase land in that county, put up a clinic or whatever." Id.