Can a county commissioners court fire a member of the county hospital district board and just replace them?

Texas AG Opinion JM-1064: Can a County Remove a Hospital District Board Member?

Plain-English summary

The El Paso County Attorney asked the Attorney General two related questions about the board that runs the county hospital district. First: could the commissioners court remove a member of the El Paso County Hospital District's board of managers without cause and replace him with someone else? Second, in the alternative: is a board member a "county officer" who can be removed under the Texas Constitution's removal provision and the Local Government Code?

To answer the first question, the AG had to decide what a hospital district manager actually is, an officer or an employee. The distinction matters because an employee generally serves at the will of whoever hired them, while an officer with a fixed term does not. The classic test is whether the person exercises a sovereign function of government for the public's benefit, largely independent of the control of others. The AG concluded the managers are public officers. The statute, article 4494n, has them appointed to two-year terms and gives the board broad authority: it manages, controls, and administers the hospital, can sue and be sued, appoints hospital staff, hires an administrator, commissions peace officers, keeps its own seal, and can even exercise eminent domain. The AG also pointed to a telling piece of history. When the statute was first enacted in 1953, it said the board was responsible to the commissioners court and that members could be removed for cause. The legislature deleted that language in 1955, which the AG read as a deliberate move to make the board more independent and to turn membership from an employment into an office.

From there, the first answer followed directly. It has long been settled in Texas that where an officer serves a set term, rather than at the pleasure of the appointing authority, the officer cannot be removed at that authority's will. Because the managers serve a fixed two-year term, the commissioners court that appoints them cannot remove them without cause.

The second question had a different answer, and together the two give the practical picture. The AG concluded the managers are "county officers" within article V, section 24 of the Texas Constitution. Several things pointed that way: the hospital district is defined in terms of the county, the constitution authorizes "county-wide" hospital districts, the county electorate votes to create the district, the district's tax base and boundaries match the county's, and courts have treated other "district" positions (an irrigation district director, a school district trustee) as county officers for removal purposes. The county commissioners court also keeps meaningful ties to the district: it levies the district's tax, approves its budget, and can prescribe purchasing and accounting procedures. Being county officers, the managers are subject to removal under article V, section 24, and chapter 87 of the Local Government Code.

So the bottom line for El Paso County was that the commissioners court could not simply remove a board member and appoint a replacement, but a manager was not beyond removal either. A manager could be removed for cause through the constitutional and statutory process, which requires a written charge, grounds like incompetency or official misconduct, and a jury finding that the charge is true.

Currency note

This opinion was issued in 1989. 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 hospital-district statute cited here as V.T.C.S. article 4494n, and the officer-removal provisions in chapter 87 of the Local Government Code, have been amended and reorganized since 1989. The constitutional removal provision (article V, section 24) remains, but the procedures and case law around removing local officers have developed over the years. Anyone facing a present-day question about removing a hospital district board member or another local officer should check the current version of the governing hospital-district statute, the current Local Government Code removal provisions, and current case law rather than relying on the 1989 citations used here.

Who this opinion affected (as of 1989)

County commissioners courts: The opinion told them they could not remove a hospital district board manager at will, even though they appoint the managers. Removal required the for-cause process, not a simple board reshuffle.

Hospital district board managers: The opinion confirmed their independence during their fixed two-year term, while also confirming they were county officers subject to the constitutional removal process for cause.

Residents and patients of the hospital district: The opinion reinforced the board's insulation from at-will political removal, which the legislature had built in to keep the board focused on operating the hospital.

Common questions

Can the commissioners court remove a hospital district board member just because it wants to?
No. The Attorney General concluded the managers are public officers serving a set two-year term, and a set-term officer is not subject to removal at the will of the appointing authority. So the commissioners court cannot remove a manager without cause and replace him.

Does that mean a bad board member can never be removed?
No. The managers are county officers, so they can be removed for cause under article V, section 24 of the Texas Constitution and chapter 87 of the Local Government Code, on a written charge and a jury finding of its truth.

Why are the managers officers rather than employees?
Because the board exercises sovereign functions of government (managing the hospital, suing and being sued, commissioning peace officers, exercising eminent domain) largely independent of others' control. The 1955 removal of language making the board responsible to the commissioners court reinforced that it is an office, not an employment.

What grounds allow removal of a county officer?
Article V, section 24 lists incompetency, official misconduct, habitual drunkenness, or other causes defined by law, with the cause set out in writing and its truth found by a jury.

Background and statutory framework

The El Paso County Attorney asked whether the commissioners court could remove, without cause, a member of the board of managers of the El Paso County Hospital District and replace him, and, alternatively, whether such a manager is a "county officer" subject to removal under article V, section 24 of the Texas Constitution and section 87.011 et seq. of the Local Government Code. The district was created under V.T.C.S. article 4494n. Section 5 provides that the commissioners court shall appoint a board of hospital managers of five to seven members, serving two-year terms, without pay, to manage, control, and administer the hospital or hospital system. Neither section 5 nor any other section of article 4494n provides for the removal of managers.

The threshold question was whether the managers are officers or employees. Attorney General Opinion M-409 (1969) had found that a member of such a board holds a position of honor and trust under article XVI, section 33 of the Texas Constitution, but stopped short of declaring the position an office. Considering the board's powers, the opinion concluded the managers are public officers. It applied the classic definition of office, which distinguishes an office from an employment in that the former involves the exercise of a sovereign function of government for the public benefit largely independent of the control of others. Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955); Dunbar v. Brazoria County, 224 S.W.2d 733 (Tex. Civ. App. - Galveston 1949, writ ref'd).

The statute's history reinforced that reading. As originally enacted, article 4494n provided that 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, § 4, at 692-693. The deletion of that language in 1955 reflected a legislative intent to make the board more independent of the commissioners court and to change membership from one of agency or employment to that of an office. Acts 1955, 54th Leg., ch. 257, § 5, at 719. The emergency clause, based on the fact that then-existing law did not provide sufficient details about the powers, duties, and operation of hospital boards, reinforced that intent. Id. § 17, at 722. The commissioners court retains some control over the district's business, for example by approving its budget and intergovernmental contracts and prescribing purchasing and accounting procedures. V.T.C.S. art. 4494n, §§ 5, 6, 8. But section 5 authorizes the board to manage, control, and administer the hospital, sue and be sued, appoint hospital staff, hire an administrator, commission peace officers, and keep its own seal, and section 9 authorizes the district to exercise eminent domain. For these reasons, the board exercises sovereign functions of government largely independent of the control of others, and the managers are public officers. See Arseneau v. Tarrant County Hospital District, 408 S.W.2d 802 (Tex. Civ. App. - Fort Worth 1966, writ ref'd n.r.e.) (a public hospital performs a governmental function in providing medical care to indigents).

Having determined the managers are public officers, the opinion answered the first question. It has long been established in Texas 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); Royston v. Griffin, 42 Tex. 566 (1875). Because the managers are appointed for a two-year term, they are not subject to removal without cause by the commissioners court that appoints them. V.T.C.S. art. 4494n, § 5.

On the alternative question, the opinion concluded the managers are county officers within article V, section 24, which allows county judges, county attorneys, clerks, justices of the peace, constables, and other county officers to be removed by the district courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, on a written charge and a jury finding of its truth. Several factors supported that conclusion. The hospital district is generally defined in terms of the county; the constitutional provision authorizing these districts authorizes "county-wide Hospital Districts" (Tex. Const. art. IX, § 4); the county electorate authorizes the district's creation; and the district's tax base and boundaries are identical to the county's (see id.; V.T.C.S. art. 4494n, § 1). Persons holding other "district" positions have been found to be county officers within the removal provision. J. C. Engleman Land Co. v. Donna Irr. Dist. No. 1, 209 S.W. 428 (Tex. Civ. App. - San Antonio 1919, writ ref'd) (irrigation district director is a county officer within the removal provision); Hendricks v. State, 49 S.W. 705 (Tex. Civ. App. 1899, no writ) (school district trustee is a county officer within the removal provision). Finally, the commissioners court retains significant ties to the district: in addition to appointing the board (§ 5), it must levy a tax for the district (§ 2), may prescribe purchasing and accounting procedures (§ 6), and must approve the district's budget (§ 8). The opinion concluded that members of the board of managers are county officers and, as such, are subject to removal under article V, section 24 of the Texas Constitution and chapter 87 of the Local Government Code.

Citations

Constitutional and statutory authority:

• V.T.C.S. art. 4494n (county hospital districts), §§ 1, 2, 5, 6, 8, 9
• Tex. Const. art. V, § 24 (removal of county officers)
• Tex. Const. art. IX, § 4 (county-wide hospital districts)
• Tex. Const. art. XVI, § 33 (positions of honor, trust, or profit)
• Local Gov't Code ch. 87 (§ 87.011 et seq.) (removal of county officers)

Cases cited:

• Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dorenfield v. State, 73 S.W.2d 83 (Tex. 1934)
• Royston v. Griffin, 42 Tex. 566 (1875)
• Arseneau v. Tarrant County Hospital District, 408 S.W.2d 802 (Tex. Civ. App. - Fort Worth 1966, writ ref'd n.r.e.)
• J. C. Engleman Land Co. v. Donna Irr. Dist. No. 1, 209 S.W. 428 (Tex. Civ. App. - San Antonio 1919, writ ref'd)
• Hendricks v. State, 49 S.W. 705 (Tex. Civ. App. 1899, no writ)

Attorney General materials referenced:

• M-409 (1969)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1064
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1064.pdf

Original opinion text

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

June 27, 1989

Honorable Joe Lucas
El Paso County Attorney
City-County Building, #201
El Paso, Texas 79901

Opinion No. JM-1064

Re: Authority of a commissioners court to remove a member of the board of managers of a hospital district 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 appoint 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. 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 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 "office," 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 also Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955); Dunbar v. Brazoria County, 224 S.W.2d 733 (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, § 4, at 692-693. The deletion of that language in 1955 reflects a legislative 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, § 5, at 719. That interpretation 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 . . . ." Id. § 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 prescribing purchasing and accounting procedures. V.T.C.S. art. 4494n, §§ 5, 6, 8. Section 5 of the act, without 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 County Hospital District, 408 S.W.2d 802 (Tex. Civ. App. - Fort Worth 1966, writ ref'd n.r.e.) (public hospital is performing governmental 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); Royston 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. Applying the rule set out in Royston, 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 provisions of article V, section 24, of the Texas Constitution and section 87.011 et seq. 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 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 terms of the county. The constitutional provision authorizing the creation of these districts authorizes the creation of "county-wide Hospital Districts." Tex. Const. art. IX, § 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 governmental 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 constitutional provision. See J. C. Engleman Land Co. v. Donna Irr. 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); Hendricks 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, the county commissioners court has the duty to levy a tax for the district. Id. § 2. The commissioners court also may prescribe purchasing and accounting procedures, id. § 6, and it must approve the district's budget. Id. § 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.

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 MATTOX
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