Untitled Texas Attorney General Opinion ( 1987 )


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  •            THE     ATTORXEY          GENERAL
    OF TEXAS
    March 11, 1987
    Honorable Elizabeth C. Jandt       Opinion No.   J-M-642
    Guadalupe County Attorney
    105-A North Austin                 lb: The authority of the Guadalupe
    Seguin, Texas   78155              Valley Hospital to borrow funds to
    purchase equipment and renovate the
    hospital   under   article   4494i,
    V.T.C.S.
    Dear Ms. Jandt:
    Article 44941, V.T.C.S., authorizes the joint establishment and
    operation of hospitals by counties and cities or towns. You ask
    whether an article 44941 hospital may borrow money to purchase
    equipment and to renovate the hospital when it is reasonably
    anticipated that the loan can be repaid over a period of five years
    from funds generated by the operation of the hospital. You indicate
    that the hospital does not seek to raise these funds through the
    issuance of revenue bonds because the cost of issuance for the
    relatively small amount needed is not economically advantageous in
    light of the fact that the hospital anticipates that a loan can be
    repaid from funds generated by the operation of the hospital. Your
    question raises three related issues:     (1) whether article 44941
    contains statutory authority for a joint city-county hospital to
    borrow money for hospital Improvements, (2) whether a county and city
    may delegate to an article 4494i hospital's board of managers the
    authority to borrow money, and (3) whether the Texas Constitution's
    prohibition on certain "debts" prohibits a city-county hospital from
    borrowing money in this manner.
    The nature of a joint city-county hospital controls the scope of
    its powers. Article 44941 authorizes the creation of a joint city-
    county hospital and authorizes any county and city or town to delegate
    to the hospital's board of managers the authority to establish and
    operate the hospital. Sets. 1. 4. 7. Article 4494i does not contem-
    plate the creation of a distinct political subdivision. see sec. 4
    (board's actions taken as though such action had been takenby county
    and city);  see also Attorney General Opinion JM-552 (1986) (joint
    city-county hospital board organized under article 4494i-1 is joint
    agent of the county and the city). A joint city-county hospital can
    hold no powers greater than those held by the county or the city which
    created the hospital. Conversely, a joint city-county hospital also
    holds powers held by the county and the city. See Attorney General
    Opinion Nos. m-274, JM-220 (1984). Counties andyties      possess only
    p. 2908
    Honorable Elizabeth C. Jandt - Page 2   (JM-642)
    the oowers nranted exuresslv or bv necessarv imlication in the Texas
    Cons;itution and statutes. .Canal& v. Laughlin; 
    214 S.W.2d 451
    (Tex.
    1948) (counties); City of West Lake Hills v. Westwood Legal Defense
    Fund, 
    598 S.W.2d 681
    (Tex. Civ. App. - Waco 1980, no writ) (general
    lawcities); cf. Lower Colorado River Authority v. City of San Marcos,
    
    523 S.W.2d 641
    (Tex. 1975) (home rule city has plenary powers,
    controlled primarily by the cityis charter). This rule applies-to the
    creation of debt. See Brown v. Jefferson County, 
    406 S.W.2d 185
    (Tex.
    1966) (counties); c E&eps'   Bank v. City of Terrell. 
    14 S.W. 1003
    (Tex. 1890) (cities).
    Article 44941 does not expressly authorize a joint city-county
    hospital to borrow money to purchase equipment and to renovate the
    hospital. Section 1 of article 44941 provides, in part:
    Such cities or towus and counties that have
    heretofore issued and sold bonds for the specific
    purpose   of   jointly   establishing,   erecting,
    =quippingI maintaining  and  operating such joint
    county-city 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
    oue hundred dollar valuation on the property
    subject to taxes therein, for such purposes.
    This section provides the only express authority to incur debt in
    financing a joint city-county hospital. As indicated, however, the
    hospital does not seek to raise these funds through the issuance of
    revenue bonds because the cost of issuance for the relatively small
    amount needed is not economically advantageous in light of the fact
    that the hospital anticipates that a loan can be repaid from funds
    generated by the operation of the hospital.
    Because article 44941 does not expressly authorize a joint
    city-county hospital to borrow money for hospital improvements, the
    dispositive issue is whether such power way be implied from the grant
    of authority to establish and equip a hospital and to issue bonds for
    such purposes. As a general rule, when a law confers a power on a
    governmental entity,  the power carries with it the implied authority
    to do all things which are necessary to effect the power granted.
    Terre11 v. Sparks, 
    135 S.W. 519
    (Tex. 1911). The authority to incur
    debt for purposes which are not authorized or to incur debt in excess
    of the limits on the amount of debt authorized or to incur debt
    without observing prescribed procedures for incurring debt clearly
    cannot be implied. Citizens' Bank v.``CC~y~of Terrell, 
    14 S.W. 1003
    ,
    1004 (Tex. 1890); see; 180 Foster v. City of Waco, 
    255 S.W. 1104
    , 1105
    (Tex. 1923) (limits in city charter). Additionally, in Lasater v.
    Lopez, 
    217 S.W. 373
    , 376 (Tex. 1919). the Texas Supreme Court stated
    that the power to issue negotiable instruments must be express, it
    cannot be implied. See also First Bank 6 Trust Co., Booker, v. Dmsas
    Independent School District, Duwas, 
    527 S.W.2d 499
    (Tex. Civ. App. -
    p. 2909
    Honorable Elizabeth C. Jaudt - Page 3   (JM-642)
    Waco 1975, writ ref’d n.r.e.1 (regarding nonnegotiable nature      of
    government warrants and promissory notes).
    In Lasater v. Lopes, s,      the Texas Supreme Court addressed a
    question about the power to incur debt which is similar to the
    question presented by article 44941. In Lasater v. Lopes, county
    taxpayers sought the judicial invalidation of a series of interest-
    bearing county warrants issued for public road improvements. The act
    at issue expressly authorized the issuance of bonds but did not
    expressly authorize any alternate method of financing. The court
    framed the issue as whether the act’s grant of authority for the
    issuance of negotiable county bonds for public road purposes negated
    any authority to issue nonnegotiable county warrants for the same
    purpose when a particular road improvement could be accomplished by
    that means. Lasater v. 
    Lopes, 217 S.W. at 376
    .
    In Lasater v. Lopes, the court determined that the county had the
    authority to issue nonnegotiable warrants in lieu of bonds. The court
    stated that
    [ilt could not have been absent from the mind of
    the Legislature in the passage of the Act of 1903
    that in some counties it might be possible for the
    Commissioners’ Court to accomplish the desired
    road improvement within the limits of the county’s
    general power of taxation for such purpose by a
    smaller expenditure than is ordinarily in view
    where a bond issue is proposed, and hence without
    the need ,of resorting to bonds. The authority in
    such instances to make lawful use of the county’s
    credit through the issuance of county warrants
    cannot be denied because of the Act of 1903,
    unless it is to be held that the effect of that
    act is to absolutely require the issuance of bonds
    in all cases by all counties where it is necessary
    to contract a debt of extended maturity for road
    improvements. If the authority to issue bonds
    granted by the Act of 1903 does not exclude the
    power in such cases to make use of a county’s
    credit for road improvements by all other means,
    the authority, where necessary, to use it for that
    purpose through the issuance of warrants still
    remains in the Commissioners’ Courts and may be
    lawfully exercised. (Emphasis 
    added). 217 S.W. at 377
    . The court’s decision was premised on its assumption
    that the county’s authority to incur debt through nonnegotiable
    warrants for public road improvements was implicit in the original
    grant of authority to levy taxes to build and improve roads. -
    
    See 217 S.W. at 375-76
    .
    p. 2910
    Eonorable Elizabeth C. Jandt - Page 4   (JM-642)
    Article 44941 provides express authority to maintain and equip a
    joint city-county hospital. Section 1 of article 44941 authorizes
    counties and cities to levy a special tax and to use general revenues
    to fund a joint city-county hospital.       As indicated, section 1
    expressly authorizes the issuance of bonds.       Further, section 7
    provides for' "the issuance of bonds or other obligations, or by
    appropriations from other funds of such county and city or town."
    This language indicates that the legislature intended that the
    financing of city-county hospitals is not limited to the issuance of
    bonds. Prior Attorney General Opinions indicate that article 44941
    authorizes forms of debt other than bonds.      See Attorney General
    Opinions V-904. V-779 (1949); see also Attorney Goneral Opinion V-683
    (1948). Consequently, article 44941 contains the authority necessary
    for a county and city to borrow money for hospital improvements; it
    need not resort to bonds in all cases. This opinion applies only to a
    hospital organized under article 44941.
    The second issue raised by your request is whether a county and
    city may delegate to an article 44941 hospital's board of managers the
    authority to borrow money for hospital improvements. Section 1 of
    article 44941 authorizes the county and city to delegate, by resolu-
    tion or other appropriate action, to the hospital's board of managers
    "full and complete authority to establish, erect, equip, maintain and
    operate" a joint city-county hospital. This opinion assumes that the
    full authority that may be delegated to the board of managers under
    article 44941 has been delegated through appropriate actions of the
    county and city.    See generally Attorney General Opinion WW-1332
    (1962). You suggest   that the county and city may delegate authority
    to the board of managers to borrow money for hospital improvements
    simply by approving budgets submitted by the board and that the county
    and city are "obligated" to approve expenditures which the board of
    managers deems necessary, including an expenditure involving a bank
    loan. This is not an accurate construction of the powers which may be
    delegated under article 44941.
    Several sections  of article 44941 are relevant to your inquiry.
    Section 4 of article 44941 provides that the joint board of managers
    shall have full and complete authority to enter
    into any contract connected with or incident to
    the establishment, erection, =quipping, main-
    taining 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 city or town for purposes con-
    nected with such hospital or hospitals, and such
    action by such city or toxn as though such action
    had been taken by the Commissioners Court of such
    county or governing body of such city or town.
    (Emphasis added).
    p. 2911
    Eonorable Elizabeth C. Jandt - Page 5      (JM-642)
    Section 7 of article 44941 provides:
    In connection 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 being
    the intention by this Act to grant to such Boards
    the complete authoritv to manage and control all
    matters affecting such hospitals, reserving to
    such county and city or town the right only to
    appoint members to such Board of Managers   and to
    approve the annual budget hereinabove provided
    for. (Emphasis added).
    -
    both sections 4 and 7 provide that the county and city may
    authorize the board to exercise broad authority with regard to
    operating the hospital, the board's authority is referenced to funds
    provided by the county and city. The last sentence in section 7,
    which reserves to the county and city "only"~ the rights of appoint-
    ment power and budget approval, must be read in light of all of the
    language in article 44941.
    Section 5 of article 44941 provides:
    Once each year such Board of Managers shall
    prepare and present to such Commissioners Court
    and the governing body of such city or town a
    complete financial statement of the financial
    status of such hospital or hospitals, and shall
    submit therewith a proposed budget of the
    anticipated financial needs of such hospital or
    hospitals for the ensuing year. On the basis of
    such financial statement and budget the Commis-
    sioners Court of such county and the governing
    body of such city or town shall appropriate or set
    aside for the use of such Board of Managers in the
    operation of such hospital or hospitals the amount
    of money which seems proper and necessary for such
    purpose. (Emphasis added).
    This section does not mandate that the county and the city shall
    approve any amount of funding which the board deems necessary.
    Although the county and city's authority to approve specific
    hospital expenditures may be purely ministerial, their authority to
    incur debt to fund the hospital is discretionary. In Commissioners
    Court of Harris County v. Fullerton, 
    596 S.W.2d 572
    (Tex. Civ. App. -
    Eouston [lst Dist.] 1980, writ ref'd n.r.e.), the court reviewed a
    p. 2912
    Honorable Elizabeth C. Jandt - Page 6   (JM-642)
    commissioners court's refusal to approve certain items in the county
    auditor's budget. The statutory language at issue in Fullerton is
    similar to that in article 44941. See 596 S.W.Zd at 575. The court
    determined that the duty of a ccmais~ners    court to approve specific
    items of equipment requested by the county auditor is ministerial; the
    comfssioners court must take appropriate legal steps to procure such
    items unless it finds the county auditor abused his 
    discretion. 596 S.W.2d at 576
    . The item at issue, however, fell within the scope of
    the county auditor's equipment budget. The court noted that the
    legislature granted the commissioners court the power to determine the
    reasonableness of "the monetary     outlay necessary to foster the
    budget's approval."
    Similar considerations apply to the case at hand. The board of
    managers of an article 44941 hospital has "complete authority" over
    the actual expenditures made for hospital improvements. On the other
    hand, article 44941 places the authority to levy taxes and incur debt
    in the county and city. In Attorney     General Opinion V-904 (1949),
    this office indicated that the authority to incur debt to finance
    hospital improvements under article 44941 rests with the county rather
    than with the board of managers. The county and city   have discretion
    over whether to borrow money to finance improvements for an article
    44941 hospital.    Consequently, although the county and city may
    approve the purchase of equipment and hospital improvements in the
    budget process, they must take separate, specific action to approve a
    loan for such.purposes.
    The third and final issue raised by your request is whether the
    Texas Constitution's prohibition on certain debts prohibits a city-
    county hospital from borrowing money for equipment and improvements
    through a bank loan to be repaid within five years. Article XI,
    section 7, of the Texas Constitution provides, in part, that
    no debt for any purpose shall ever be incurred in
    any manner by any city or county unless provision
    is made, at the time of creating the same, for
    levying and collecting a sufficient tax to pay the
    interest thereon and provide at least two percent
    (2%) as a sinking fund. . . .
    See also Tex. Const. art. XI, P5.
    You indicate that the hospital reasonably anticipates that the
    loan can be repaid from funds generated by the operation of the
    hospital. An obligation will not create "debt" within the meaning of
    article XI. section 7. when the transaction itself generates enough
    revenue to cover the obligation of the governmental unit.        Bathe
    Halsey Stuart Shields, Inc. V. University of Houston, 638 S.W.Zd 920
    (Tex. App. - Eouston [lst Dist.] 1982, writ ref'd n.r.e.); --see Texas
    Public Building Authority V. Mattox.     
    686 S.W.2d 924
    (Tex. 1985)
    (construing Tex. Const. art. III. 449); City of Nederland V. Callihan,
    
    299 S.W.2d 380
    (Tex. Civ. App. - Beaumont 1957. writ ref'd n.r.e.)
    p. 2913
    Eonorable Elizabeth C. Jandt - Page 7      (JM-642)
    (construing Tex. Const. art. XI, 95). In the present case, however,
    it does not appear that the loan is repayable solely out of revenues
    generated by the equipment to be purchased or the renovations to be
    made.
    Texas courts uphold "debt" transactions against constitutional
    challenge under article XI, section 7. when current revenues or
    revenues   which are generated by the transaction and which are within
    county or city control are sufficient to cover the "debt." --See Brown
    V. Jefferson County. 
    406 S.W.2d 185
    , 189 (Tex. 1966). Case law has
    not, however, always established a clear rule under article XI,
    section 7. In McNeil1 V. City of Waco, 
    33 S.W. 322
    (Tex. 1895), the
    Texas Supreme Court held that no debt existed for purposes of article
    XI, section 7, when the city reasonably anticipates that the
    obligation can be satisfied out of current revenues or out of "some
    fund then within the immediate control of the 
    corporation." 33 S.W. at 324
    . The McNeil1 court focused on "providing" for the retirement
    of the debt; if the city anticipates in good faith at the time a
    "debt" is made that a tax is not necessary to retire the "debt," the
    city is not required by article XI, section 7, to levy a 
    tax. 33 S.W. at 323-24
    . The court did, however, suggest that there should exist,
    at the date of the contract, a fund in the treasury,
    legally applicable thereto, out of which the parties
    contemplated that such claim should be 
    paid. 33 S.W. at 324
    .
    Controversies over the existence of an unconstitutional "debt"
    revolve around the requirement that a fund actually exist at the time
    the "debt" is made. The supreme court adopted a 1938 Commission of
    Appeals decision which indicates that the parties to the debt must
    contemplate that the entire obligation could be satisfied out of
    current funds or revenues. See Stevenson V. Blake, 
    113 S.W.2d 525
    ,
    527 (Tex. 1938). Similarly, rthe     Commission of Appeals decision in
    T 6 N.O.R.R. Co. v. Galvesion County, 169 S.W.Zd 713.(Tex. 1943), the
    court struck down the part of an agreement between a county and three
    railway companies and an interurban company in which.the county agreed
    to indemnify the companies for liability that might arise in the
    future from the use of a jointly-constructed drawbridge. The court
    held that the parties could not have reasonably anticipated that this
    "debt" could be satisfied out of current revenues for the year or out
    of some fund then within the immediate control of the 
    county. 169 S.W.2d at 715
    .- The Texas Supreme Court, however, qualified these two
    commission of appeals holdings.
    In Brown V. Jefferson County,~s,      the supreme court shifted
    the focus of the article XI. section 7. inquiry from the current
    existence of funds to whether necessary funds are reasonably
    anticipated from sources within the control of the county. 
    See 406 S.W.2d at 189
    . The court upheld a contract in which the countyagreed
    to assume uncertain indemnity liability, to "hold and save" harmless
    p. 2914
    Eonorable Elizabeth C. Jandt - Page 8    (JM-642)
    the federal government for the ownership, operation, and maintenance
    of a federally-funded county bridge. The fact that the county had
    control over the bridge influenced the 
    court. 406 S.W.2d at 188
    .
    A Jefferson County taxpayer alleged that article XI, section 7,
    requires that such obligations be funded by a specific tax. The court
    rejected this argument:
    Article 11, 67 of the Texas Constitution does
    uot require that a definite tax rate be set for
    each year the 'debt' is to be outstanding. Tax
    rates vary with assessed valuations, governmental
    needs and the like and are set on a year to year
    basis. e    the constitutional provision requires
    is that a 'sufficient' tax be levied. (Citations
    omitted). Until some liabili,ty ascertainable in
    arises, no money would need be collected
    from the county's tax resources. (Emphasis 
    added). 406 S.W.2d at 189
    . An obligation will be stricken under article XI,
    section 7. "only when it is made to appear that the limited tax
    resources of the municipality are insufficient when the obligation is
    made to discharge the 
    obligation." 406 S.W.2d at 190
    .
    Despite the suprems court's decision in Brown V. Jefferson
    County, some courts have invalidated "debts" on the basis that they
    could not be paid out of actually available current revenues. See
    City of Wichita Falls V. Kemp Public Library Board of Trustees, 593
    S.W.Zd 834 (Tex. Civ. App. - Fort Worth 1980, writ ref'd n.r.e.);
    Brodhead V. City of Forney, 
    538 S.W.2d 873
    (Tex. Civ. App. - Waco
    1976. writ ref'd n.r.e.). This narrow rationale. however. is not
    mandated by the supreme court's decision in Brown V. Jefferson County.
    For example, in City of Wichita Falls V. Kemp Pqblic T;ibrary, there
    existed a question of control over funds to repay debt.    In Brodhead
    v. Fornex, the funds necessary to repay the "debt" could not be
    reasonably anticipated.
    The case you present with regard to.a joint city-county hospital
    established under article 44941 fits within the Texas Supreme Court's
    decision in Brown V. Jefferson Counte. You indicate that the hospital
    reasonably anticipates that a loan for hospital equipment and improve-
    meats can be repaid from revenues generated by the hospital. The
    county and city have taxing authority under article 44941 and control
    over hospital revenues through the budget approval process. Because
    hospital revenues have been sufficient to operate the hospital, the
    county and city have not found it necessary to levy taxes for the
    support of the hospital. Additionally, it has not been shown that the
    uncommitted tax resources for the year available to the county and
    city for hospital purposes, are not reasonably anticipated to be
    sufficient to discharge the obligation in question if it should become
    necessary to do so. As indicated, it is not necessary that a fund
    exist or a tax actually be levied. The amount which the county and
    p. 2915
    .
    Honorable Elizabeth C. Jandt - Page 9     (JM-642)
    city in good faith believe could be raised through a combination of
    hospital revenues, taxing power under article 44941. and other taxing
    authority available for hospital purposes is a fact question which
    cannot be resolved in the opinion process. Moreover, the burden of
    proof must be shouldered bv the uartv that challenaes an oblination to
    show that it exceeds the constitutional "debt" limit. irown         v.
    Jefferson 
    County, 406 S.W.2d at 189
    . Consequently, under Ilrown v.
    Jefferson County, the Texas courts would not invalidate a "d;ebt" for
    equipment and improvements for a joint city-county hospital when it is
    reasonably anticipated that the obligation can be repaid from revenues
    generated by the hospital and the obligation has not been shown to
    exceed the county and city's unconneittedtaxing authority for hospital
    purposes.
    SUMMARY
    A city and county with a joint hospital
    organized pursuant to article 44941, V.T.C.S.,
    hold the authority to borrow money to purchase
    equipment and to renovate the hospital when it is
    reasonably anticipated that the loan can be repaid
    from  funds generated by the operation of the
    hospital and it has not been shown that the amount
    of the loan is not within the amount which the
    county and city in good faith believe could be
    raised through a combination of hospital revenues,
    taxing power under article 44941. and other taxing
    authority available for hospital purposes. This
    opinion is limited to an article 44941 hospital.
    The county and city which establish an article
    44941 hospital have discretion over whether to
    borrow money and must take specific action to
    approve a loan for hospital improvements.
    Attorney   General of Texas
    JACK EIGETOWRR
    First Assistant Attorney General
    WARY KELLER
    Executive Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Jennifer Riggs
    Assistant Attorney General
    p. 2916