Untitled Texas Attorney General Opinion ( 1968 )

A-- o-
July 17, 1968
Honorable John F. Pettlt *OpinionNO. M- 260
County Attorney
Val Verde County Re: Authority of the Commls-
Del Rio, Texas 78440 sioners Court of Val Verde
County to transfer certain
real property to the Val
Verde County Hospital
Authority created pursuant
to the rovlsions of Arti-
cle 449% 7, V@rXWh'S ClVll
Dear Mr. Pettit: Statutes.
Your request .for an opinion on the above subject mat-
ter reads, in pert, as follower:
"Recently the Commlssloner~sCourt of Val
Verde County, by order of said Court, created
the Val Verde County Hospital Authority ln ac-
cordance with the provisions of Article b&k
v.a.c.8. Presently Val Verde County operates
and maintains a hospital, Val Verde Memorial
Hospital, which the Court anticipates trans-
ferring to the newly created Authority. The
existing hospital was built by the County with
funds derived from a bond Issue; and title to
the real estate upon which the hospital 1s
situated 1s vested in the County.
II....
"Therefore, I respectfullyrequest your
opinion as to whether a transfer by the Com-
missioner's Court of Val Verde County of all
the physical assets of the Val Verde Memorial
Hospital, Including the real estate upon which
said hospital Is situated, to the,Val Verde
County Hospital Authority la authorized under
the laws of the state of Texas."
The pertinent provisions of Article 449&r, Vernon's
Civil Statutes, reads aa follows:
"Section 1. County Hospltal Authorities
without taxing power may be created as hereln-
after provided. This law shall be known as the
lCounty Hospital Authority Act.'
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Hon. John F. Pettit, page 2, ~-260
"Sec. 2. As used In this law, 'County'
means any county'ln the State of Texas; 'Qovern-
lng Body' means the CommissionersCourt of a county;
'Authority'means a County Hospital Authority
created under this Act; 'Board' or 'Board of Dlr-
ectors' means the board of directors of the Au-
thority; 'Bond Resolution'means %he resolution
authorizing the Issuance of revenue bonds; 'Trust
Indenture'means the mortgage, deed of trust or
other instrument pledging revenues of, or creat-
ing a mortgage lien on properties, or both, to
secure the revenue bonds Issued by the Authority;
'Trustee'means the trust'eeunder the Trust
Indenture.
"Sec. 3. When the Governing Body of a
county shall find that It Is to the best
Interest of the County and Its inhabitantsto
create a County Hospl,talAuthority, it shall
pass an order creating the Authority and deslg-
natlng the name by which It shall be known. The
Authority shall comprise only the territory In-
cluded within the boundarles of such County and
shall be a body politic and corporate and a
political subdivisionof the State. It shall
have the power of perpetual succession,have.a
seal, may sue and be sued and may make, amend
and repeal its bylaws.
II
....
"Sec. 7. The Authority may Issue revenue
bonds to provide funds for any of its purposes.
Such bonds shall be payable from and secured
by a pledge of the net revenues to be derived
from the operation of the hospital or hospitals
and any other revenues resulting from the owner-
ship of the hospital properties. The bonds,may
be additionally secured by a mortgage or deed of
trust on real property of Authority or by a
chattel mortgage on Its personal property, or
by both.
I,
....
“Sec. 17. For the purpose of carrying out
any power conferred by this Act, Authority shall
have the right to acquire the fee simple title
20 land and other property and easements by con-
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Hon. John F. Pettlt, page 3, M-260
demnatlon In the manner provided by Title 52, Re-
vised Civil Statutes as amended, relating to
eminent domain. Authority Is hereby declared
to be a municipal corporationwithin the mean-
ing of Article 3268 of said Title 52. The amount
of and character or interest In land, other prop-
erty and easements thus to be acquired shall be
determined by the Board of Directors." (Emphasis
added.)
In view of the foregoing provisions, a Hospital Au-
thority created pursuant to the provisions of the above quoted
statute constitutes a separate entity, a body politic and cor-
porate, and a political subdivision of the State with the power
to issue revenue bonds, but without the power of levying or col-
lecting taxes; and that Authority also possesses the right or
power of eminent domain. The statute does not expressly or lm-
pliedly limit the right or power given.
Since the Val Verde County Hospital Authority may
exercise power of eminent domain pursuant tomthe provisions
of Section 17 of Article 4494r, It has the power to acquire by
condemnation the real estate
of Tyler v. Smith County, 151 Tex. 80, 246
Klngsville Independent School District v.
q$l(T Cl A 1942
v. Ci~;'ofvilP;;so,3j7e::::2d
We do not find any specific statutory provision au-
thorizing transfer of real estate from the county to the Authority
and ordinarily in the absence of such specific authorization
the county could not dispose of Its real estate In this manner.
However, in view of the decisions in City of Tyler v. Smith
m;;;";l,;;r;. ,a;lngsvI;ri;IM;Penzent Schzol Dis;Pg;;:s;ir;C;n-
Zii?xcep on to the general rule exists In view of th
that the Authority has power of eminent domain. The cas?oS
El Paso County v. City of El Paso, su ra Involved a suit
fmlne +f' e validity of a trans-
St: of real prope:t$Eom Ehe county to the city. The court in
upholding the transfer made the following observations,begln-
nlng at 357 S.W.2d 785:
"Ordinarilythere could be no doubt that
the Couhty, like any other political subdivision
of the State, could dispose of Its real estate
only in strict adherence to the pertinent stat-
utes. Here, however, the City has cited two
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Hon. John F. Pettlt, page 4, M-260
cases that appear to be an exception to this
rule. These cases are City of Tyler v. Smith
County, 151 Tex. 80, 246 S.W.2d 601 (S.Ct.),
and Klngsville Ind. School Dlst. v. Crenshaw,
Tex.CIv.App.,164 S.W.2d 49 (dls'm. car. judg.).
...The Supreme Court held that the county
owned the property In See simple, with the
city having no rights In the square except its
street easements along the sides, and while the
county had the right to remove the courthouse,
the entire square was Impressed with a public
use and therefore could,not be diverted to
private use or sold to private agencies or
persons. On motion for rehearing, parties
asked the court IS Its opinion meant that
the city could never connect its hlghw;ieby
running a street through the square.
court answered pointing out that such was not
the meaning of Its original opinion, but that
the City of Tyler (like El Paso), being a home-
rule city, had the right of condemnation,and
in that right was contained the right to con-
demn public as well as private property....
The Supreme Court then went on to say:
"'If counsel will refer to Klngsvllle In-
dependent School District v. Crenshaw, Tex.
Clv.App., 164 S.W.2d 49, (error dismissed,
cor.judgt.) they will find how the desired re-
sult may be accomplished even without resort
to condemnationproceedings.'
"Article 1577 requires the appointment of
a commissioner to sell county land at public
auction, but it is obvious,that this statute
could not be complied with In either the Tyler
case or this case, because the land was lm-
pressed with a trust and public use, and could
not otherwise b,eemployed;.and this Is likely
one of the reasons why the Supreme Court did
not mention this article or suggest that It
had to be complied with......
II....
"'We think the statutes hereinabove re-
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. .
Hon. John F. P&tit, page 5, M-260
Serred to do apply wherever a political sub-
division, subject to such statutes, desires to
dispose of any of Its public land to an ln-
divldual or private agency, but not where such
political subdivisionwith the power of eminent
domain and condemnation chooses to deal with
its opposite number and reach an agreement as
to the change of public use, rather than to
resort to the expensive and tedious medium of
litigating the entire matter through the
courts, thereby holding up the public benefit
and depleting to some extent the tax funds of.
the subdivisions Involved."
In view of the Soregolng, since Val Verde County Au-
thority Is vested with the power of eminent domain, it may choose
to deal with the county and reach an agreement as to the change
of title to all the physical assets of the Val Verde Memorial
Hospital, Including the real estate upon which said hospital
Is located, rather than to resort to condemnationproceedings.
El Paso County v. City of El Paso, 357 S.W.2d 783 at 787.
You are therefore advised that If the Commissioners
Court of Val Verde County and the Hoard of Directors of the
Val Verde County Hospital Authority determine that it Is to the
best Interest of both the county and the Authority to consummate
such transfer, the CommissionersCourt of Val Verde County has
the authority to make such transfer.
SUMMARY
A counts has the authority to transfer a
County Hospital to a Hospital Authority created
pursuant to the provisions of Article %@4r,
Vernon's Civil Statutes.
Verfiruly yours,
C. MARTIN
General of Texas
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Hon. John F. Pettlt, page 6, M-260
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
James McCoy
Roger Tyler
Houghton Brownlee
James Broadhurst
A. J. CAFWBBI, JR.
Executive Assistant
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