Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
March 15, 1984
JIM MATTOX
Attorney General
Supreme Court Building Ms. Rita Howitz Opinion No. JM-137
P. 0. Box 12548 Executive Director
Austin, TX. 78711. 2548 State Pen&o" Review Board Re: Whether a hospital authority
512/475-2501
P. 0. Box 13498 must register with the State
Telex 9101874-1367
Telecopier 5121475.0266
Austin, Texas 78711 Pension Review Board
Dear Ms. Howitz:
714 Jackson, Suite 700
Dallas, TX. 75202-4506
2141742-8944
Chapter 12 of title 1lOB. V.T.C.S., imposes various requirements
on "public retirement systems." Section 12.001(2) of title 1lOB
defines such a system as:
4824 Alberta Ave., Suite 160
El Paso, TX. 79905.2793 a co"ti"ui"g. organized program of service
9151533-3484
retirement. disability retirement, or death
.fl benefits for officers or employees of the state z
JO1 Texas, Suite 700 a political subdivision, other than a program
Houston, TX. 77002~3111 providing only workers' compensation benefits, a
7131223.5888 program administered by the federal government,
Of . . . . (Emphasis added).
806 Broadway. Suite 312
Lubbock, TX. 79401-3479 You
. have asked whether the Richardson Hospital Authority is a
806,747.5238 "political subdivision" within the meaning of this provision.
Section 3 of article 4494r. V.T.C.S., authorizes counties to
4309 N. Tenth. Suite B
McAllen, TX. 78501.1685
create county hospital authorities, and it expressly provides that
5121882-4547 such authorities are "political subdivision[sl of this State." On the
other hand, section 3 of article 4437e, V.T.C.S., which authorizes
cities to create city hospital authorities, such as the Richardson
200 Main Plaza. Suite 400
San Antonio, TX. 78205.2797
Hospital Authority, does not provide that such authorities are
5121226-4191 political subdivisions. We must determine whether the failure of this
latter provision to so provide means that the legislature did not
intend for city hospital authorities to be classified as political
An Equal Opportunity/ subdivisions, or whether the omission of the words "political
Affirmative Action Employw
subdivision of this State," which appear in section 3 of article
4494r, was a mere oversight on the legislature's part.
Bole" V. Board of Firemen, Policemen and Fire Alarm Operators'
Trustees of San Antonio, 308 S.W.2d 904 (Tex. Civ. App. - San Antonio
1957, writ ref'd), sets forth the criteria that are generally used in
determining whether a" entity is a "political subdivision." There,
r the court stated:
p. 583
Ms. Rita Horwitz - Page 2 (m-137)
A political subdivision contemplates: geographical
ares and boundaries, public elections, public
officials, taxing power and a general public
purpose or benefit.
Id. at 905. The second of these criteria was recently modified sub
xentio by the Texas Supreme Court. In Guaranty Petrol=
Corporation v. Armstrong, 609 S.W.2d 529, 531 (Tex. 1980). the court,
distinguishing between a "political subdivision" and "a department,
board or agency of the State," stated that
[mlembers of the governing body of a pollti~cal
subdivision are elected in local elections or are
appointed by locally elected officials. (Emphasis
added).
County hospital authorities clearly meet at least four of these
five criteria. They have geographical area and boundaries. V.T.C.S.
art. 4494r, 63. Members of their boards of directors are appointed by
the governing bodies of the counties that created them. Id. 04. Said
members are unquestionably "public officials." Finxy, county
hospital authorities certainly promote "a general public purpose or
benefit." County hospital authorities do not, however, have taxing
power; instead, they have bonding authority. Id. 97 et seq.
Notwithstanding the fact that county hospital authorities do not
technically meet all five of the Bole" and Guaranty "political
subdivision" criteria, however, such authorities clearly are political
subdivisions, because section 3 of article 4494r declares that they
are.
Like a county hospital authority, a city hospital authority has
geographical area and boundaries, article 4437e. section 3, V.T.C.S.,
and a board of directors appointed by the city that created it. Id.
64. These directors are certainly "public officials," and the
authority promotes "a general public purpose or benefit." Like county
hospital authorities, moreover, city hospital authorities have bonding
rather than taxing power. Id. P7 et seq. As noted, however, city
hospital authorities are not expressly designated as "political
subdivisions."
In our opinion, however, city hospital authorities should be
deemed "political subdivisions" within the meaning of section 12.001
of title 1lOB. Only in a very literal sense do such authorities fail
to meet the "taxing power" criterion of Bole" and Guaranty; one could
reasonably argue, moreover, that this criterion is technically met,
since bonding authority could be deemed an adequate substitute for
taxing power, at least for purposes of this criterion. Even if this
criterion is not precisely met, however, to conclude that city
hospital authorities are for this reason not political subdivisions
p. 584
, -
Ms. Rita Horwitz - Page 3 (JM-137)
is, in our view, to give entirely too much weight to what is at best a
flimsy distinction.
Even more compelling is the fact that county and city hospital
authorities meet the Bole" and Guaranty "political subdivision"
criteria to precisely the same extent. Given this fact and the fact
that county and city authorities are otherwise so similar, we can
perceive no logical reason why the legislature would have wanted to
include the former within the ambit of the term "political
subdivision" but exclude the latter. We do not believe it would have
intended to subject only the former to the requirements of chapter 12
of title 1lOB.
Section 3 of article 4437e was enacted in 1957. Acts 1957, 55th
Leg., ch. 472 at 1379. Section 3 of article 4494r was enacted in
1963. Acts 1963, 58th Leg., ch. 122 at 324. One reason why only the
latter mentions "political subdivisions" might be that when the
legislature enacted this provision, it simply neglected to amend
article 4437e. If section 3 of article 4437e had been enacted after
section 3 of article 4494r, we believe the omission of any reference
to "political subdivision" would be far more meaningful. Since the
reverse occurred, however, we believe it is more likely that when it
/4 enacted article 4494r, the legislature simply was not concerned with
article 4437e and therefore paid no attention to it.
For the foregoing reasons, we conclude that the Richardson
Hospital Authority is a "political subdivision" within the meaning of
section 12.001 of title 1lOB.
SUMMARY
The Richardson Hospital Authority is a
"political subdivision" within the meaning of
section 12.001 of title llOB, V.T.C.S.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
p. 585
- I
Ha. Rita Horwitz - Page 4 (JM-137)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Patricia Ajnojosa
Jim Noellinger
Nancy Sutton
p. 586