Untitled Texas Attorney General Opinion ( 1949 )

EATTORNEY GENERAL
OF TEKAS
AUSTIN IX.'~EXAS
Septemberl6,1949
Hon. Wm. II.Hen#lO~ cpInl0n No. r-904.
CrwIMl Iu.etr1ctAttorney
Bhucount~ Re: lBemu!mm tu r8te
Sal3AntoRIo, Texu ror htmpital purpo8er
and the valldlt~ of
tine uurautt4 for hu-
pital repaIrs under
Dear Sir: the lb nlttedta o tr .,
Reierenee lr ude to your request for en opin-
Ion whloh I8 rubrtaatlall~88 follour:
"Uhder date of June 27, 1949, the Coun-
ty OT Bexu, 4cting through Ita Corriulonerr
Court, and the City of Sam Antonio, lcl+Iig
threu@ Itr Board OS CamIerIomrm,e~t``d
Into a written agreementprovld
opentlen or the Robe* b. Croon %erIal
zpbyh,zer the provi8lo~ 0r an 8ct or
letmaw, 1943, p. 691, eh. 383,
new eedlflor 88 Art. 44941, R.C.S. Prior to
raid agreement,the Rebert B. Green krorlal
Heepltrl was operated by the Ceumty of Bexer
under the provIrlon8 o? an 8ot oi the 49th
Leglrlature,1 45, p. 466, ch. 295, new a&t-
Ifled u Art. f437e, R.C.S.
"Under the term of Art. 4437e, the &a-.
mluIonerat Court was authorized to levy a
tu of not over twenty cents OR the valaatiolr
ef CM Hundred Dollars, while under the term8
of Art. 44941, citier or towu ukd counties
are authorized to levy and collect a tax net
to exoeed ten aente per One Hundred Dolls6
plalt;am oa the propert? subject to taxes
.
"8Inoe Bau Crpatf and the City of San
Anteale are n(llopemtl#q 88ld Robert B. Wee?&
JtemerialEorpital jelntlr under the provlelaar
Of Art, 44g4i. B.C.&, kindly mh w with
your 0pin10n a8 to the 8ul.m~ legal F8te of
tutlen whIah the CamIuIoner8~ Court may
new lrrfully levy ior the melnteaance end
oper*tIen of ee%6 hospital.
Eon. Wm. 1. Renaley, psge 2 (V-904)
"January3, 1949, we Ieaued $lOO,OOO.-
00 In warrants, $15,000.00 to be used to re-
pair the old part of the TuberculosisHolrpl-
tal and Clinic of the Robert B. ffreenRemo-
rlal Hospital at Southton, Texas.
"Since the date these warrants were 18-
rued, the hospital ha8 been brought under the
provisions of Art. 44941 and the management
and funds of said hospital turned over to
the Board of Managers thereof to operate as
a City-CountyHospital. As a result, the
bonding house which has contracted to buy
these warrants has now questioned the vall-
dltr of the same, contending that since the
Board of Managers Is given full power to
erect and repair the hospital, snd since on-
ly the Comml8slonersCourt CM Issue warrant8,
that they are invalid warrants. They are,
therefore, refusing to go through with the
contract pending receipt of an opinion fPom
the Attorney General.
"Can the CoPnlrslonersCourt legally
Isrue and sell the8e warrants for the pun-
pose of repairing said hospital, while said .
horpltal Is being managed under the provl-
8Ioas of Art. 44g411*
In your request for sn opinion you have detril-
ed the history of the Robert B. Green Neaorlal Heapltrl
lmmedletelybefore It becsme a City-County&mpital, the
circumstance8of the consolidationand the history of the
sam 8Imee the consolidation,which for the rake of clar-
lty will be set out In this opinion, and Is,88 follows:
"The ho8pItal had been operated 8Inae
1914 under the prorislear of Chapter 5, %tle
71, B.C.S., Articler 4478 et seqO In that
ear, 1914, under the provI8Ion8 of Article
3492, the County and CltJ contractedto oper-
rte said hospital jointly for a term of forty
yeU8. Both the City 8nd County 188ued bmd8
in the uount of $125,009.00 to flnanae the
e8tabllmLycntof rsme. small muat ue
8tlll due on both ret8 of bonds. The city
ceased to comply with the terms of:that Gem-
tract on about the year 1929, and the comaty
ha8 been operating 8sme alone ever 8-m.
Hon. Wm. II.Hermley, page 3 (V-904)
Earlier this year, 1949, the city deeded all
its lntereete to ead title in the hospital to
the county, and the contract referred to above
was abrogated, and the county assumed full
ownership In law, a8 well a8 aontlnuIngto
exerclse.full-controlIs fact.
"The tax-rate-for.thesupport of the hOS-
pita1 for the year 1949 was set at 18.9# under
the provisions of Article 4437a. Thle levy
had been previously authorized about 1945 by
a vote of the people. The county budget was
set up accordingly,and said tax levy has
produced In the nei@borhood of $400,000.00,
which amount has proved Itself altogether ln-
adequate to fully and effectively operate said
hospital. As a result, the hospital has been
almost completely closed during a portion of
this year, and only partially open during most
of it.
"As a re8ult, negotiation was opened be-
tween the Cwnty and City authoritieswhereby
an agreementwas reached between them for city
participationin the operation of a joint
City-CountyHospital under the provlslons of
Artlole 44941.
“As a result, on June 27, 1949, by its
OPdeP, the Collri88iOnOrS COIDt paSSed urd
adopted an ordinance passed and adopted by
the City of Sen Antonio on June 16, 1949, (a
copy of nhiah Is lttaohed hereto and mrked
*Amex l'), and at that time the hespital
beeme a joint City-Count Hospit under the
provirrioxu~ of Article 449fI, without, however,
effecting any transfer of title to the re8lt7,
which remIns In the county."
Article 44941, V.CtS., Is in part a8 follasr
"sectian 1. Any aounty of the State 8md
any InWrpor8ted Olty or town Wlthlm mUah
county autIng through the ConissioRers Ceurt
of SPeh oopnty 8nd the gevemfmg bedy of suloh
city or tarn, ny jointly est8blish, erect,
equip, malntal~ tw operate a holpltrl or hes-
pitale for the e8re 8md treatment of the 8Iok,
iniL=, -d/or lx4&u’ed3 and for the pwOSe8
Hon. Wm. 1. Hensley, page 4 (V-904)
of ertabllrhlng,erecting, equIppIng,uim-
taiaily and operetlng SUCh a ho8pItrl or hQS-
PitalS, the cslriSSi6MrS COW% Of anJ CSrnty
and the governing body of anj alty or tam
within such county my, by resolution 81 ether
appropriateaction, oonfer upon, delepte to
and grant to l Board of Iha*gers, as herein-
after provided, full end complete authority
to e8teblIrh, ereat, equip, maintain and oper-
ate such hoapltal or hospitali. Such alties
or towns and counties th8t h8v heretofore is-
sued and sold bond8 for the sp oific purpo8e
Of jointly eStablIShing,erecting, eqUipping,
malntalalng and operating meh joint couatj-
city hospital Mayofinanci ruah hospital or
hosrtitalsout of nenerel revenues and ere
each. PeeDectlvely.hereby authorized to leg
APtit? 4437$ V.C.S., i8 in put a8 fOllOW8:
"Seation1. That all counties in Texas
having l.populatIonof 200,QOO~QP mere lnhab-
itants as shown by the lest precedimg Federel
CensM, In which W eetabllshed hoSpitdl8
jointly ownad and operated by Amy city 8.M
county, In which Said heepltnl 18 located,
the said counties or cities under the turn
of a mutual agreement,and not otherwise,
end provldlag further that ouch portlou'?'
the tax herelmefterreferred to shall, if vot-
ed by 8 majorltr of the qualified voters, be
USed te take au0 Of the interest uad Sinking
fund required by 1# on all outstandIngboa48
of the city or county heretofore iSSUed which
have been Incurred against the buildlag OP
MinteRaWe of meld hODpit or th8t My
hereafter be Iarued. lbat In case It 18’ de-
teraImed by meld mutrul agreement for the
city to t&ke over the raid hospitels amd
.
Hon. Mm. N. Hensley, page 5 (V-904)
operate the same, the board of maxmgera
may be appointed by the governing body of
the city In accordancewith the terns of
lt8~ChaPtoP-or. 1A aCCOrdaBlCe
with it8 juag-
rent.
"See. 3. A direct tax of not over 20#
on the valuation of $100.00 may be authorlz-
ed and levied by the CoarisslonersCourt of
such county for the purpose of erecting bulld-
lng8 or other improvementsand for OpeXWting
end m8lntalnIng 8Ueh hoSpit81; provldad that
all such levy of taxes shell be submitted to
the qualified taxpaying voters of the county,
and a maforlty vote Shell be necessary to
levy the tax. Successive elections may be
held to authorize eddltlonel taxes hereunder
provided the total tax shell not exceed the
maximum of 20d per $100.00 valuation, es here-
inabove provided." (EPaphesls added)
.
Prior to Its amendment In 1945, Article 44378
provided for a direct tax of not over 104 on the Value-
tlon of One Hundred Dollars ($100.00)to be levied by
the ConxLssloners~Court for the purpose of erecting
bulldings and for matitalnlng hospitals upon approval
of the queElfled taxpeyl veters by a &jorlty vote.
The amen&ent to Article"$4378 by the Acts of l&,Sgth
Le lrleture, provided for a dlreet tax of not nore them
20 on the valuation of $100.00 to be levied by the Ca-
mIssionera Comt for the same purpose. The condition
contained in Article 44378 Is "esteblfshedhospitala
jolmtly owned and operated by any city and cmtyp .I~B
which meld hOSpit Is located, the sefd countfernor
eItle8cmtderthe term8 of a mutual agreement, aBd mot
B. Qreen -181 ~spltel i8 now operetw under Artl-
cle 44941 puP8uamt to an egeememt between the City Of
San Amtealo and the County of Bexer. This being true,
we l&ee with your concl~lon that such hospitti 1s now
operated under the jolnt,unagement of the olty and noun-
ty and is therefore lImIted to 8 104 levy om the $100
BOB. WI. 8. &msley, page 6 (V-904)
valuation b7 the city and by the coumtr, respectively.
A hoapital @@rated olntly by a alty amd aoumty Is not
a county hospital. i!laascock v. Wells, 171 S.W. 782
(Te~.cl~.App. 1914, error ref.).
Article 44941 provides that such Act is cumu-
lative of all other A&s. Artlale 4437a provides that
the section relating to tubercularhospitals only Is
cumulativeo? all other Acts. Itle contended that a
tax of more than lO# on the $100 valuation"ax We ler-
led b7 the County of Bexar. Webster defines cumula-
tive" to Beam "that which augments by addition; that
Is added to something else." ArtlOles 4437a amd 44941
are crPlulatlveonly as to those operationsw1th;i.nthe
same category. It Is our opinion that these Artlaleq
refer to two distinct types of operatloms of hospitals,
amd are not oumulatlveof each other.
Since Robert B. Qreen Memorial HOapltal Is
erated jointly by the city and county umder Article
$41 we agree with your oomcluslonthat the PrOvl-
rloms'of Artlole 4437a are not applicable. If such hgs-
pita1 were a city-countyhospital where the authority to
control and manage had been delegated todther, then
Artlale 4437a would control. Therefore, it ia our opwr-
ion that the maxlmm tax levy that may now be levied by
Bexar County for hospital purposes Is a tax not .toex-
ceed lO+.on the $100 valuation.
We now turn to your second question regardiry
the tire warranta. Article 4494% provides that the $0~
ernlng authoritiesof a hoepltal may delegate amd grant
to a Board of Wanagere full and complete autborltJ to
ertabllah, erect, equlp.~ malntaln and operate such hoa-
pital. This having been done, the queatlom 18 mm,pre-
reBte$ as to whether the Commlssloners~Court 8am legal-
17 irstlcand deliver the tlme warrants authorizedb7 the
Comlmloners' Court on January 3, 1949, prior to the
eifeotive date of House Bill lo. 106, Aeta 51st -Is-
lature, for the ose of repairing Robert B. Qreen
EGloapltal pu%
u le the same Is etaorated under Art-
.
In the ease ef Adam vi pSll,``tS,~ig~
332 (Tex.Clv.App.19@1, errer re . ,
(I
l o o umty,aubjaet te the ex-
preer ;u;t;letlomalmpeaed by the Cenatl-
tutlom and gqmeral lawa, has the power to
Hon. Wm'H. Rensleg, page 7 (V-904)
Issue tire warrant8 IA payment,for ir-
provements It IS expressly luthorl8ed to
construct provided that the a$#11 bl
rcgulatians relatlAg to ,thelssua``~ 0:
such warrant8 be ob8erved.' (Underwwr-
IAl5ours).
This off$ce stated In Opinion Ilo,y-779, dat-
ed February 23, 1949, that a Coml88loaers' Court UA-
der the fact8 outlined therein has luthorlty to Issue,
Interest bearing tire warrants for the purposetio;h;f-
tablirhlngand equlp~l~ a county hsspltal.
conneatfan,Artlale ‘rg1 provides that Beards of
&uIagera shall have authority to dtrbur80,aAdpay out
funds 8et aside by such County and City for purposes
connectedwith such hospital. Further, It Is provided
that IA OoAAectlonwith the ereCthA and equlppl.ngof
such hospital, the Board of HaAagerr 8hall have the au-
thority to detemlne the AaAAer of expend* aAy funds
that uy have been provided for such -060, whether
by the l88uaAce of bands or other obllgatloAsor by ap-
proprlatloru,~While the Board of Managers ha8 exclu?alve
authority la the manner of empending fuads, It Is d
oplnlo~ th8t a Calssla@era~ Court would not be pre-
aluded rr6m 188&I@ time warraAt8. Such warrants, pre-
stmably, w&d be i88UOd at the requert of the Board of
Kaqagerr for the ~akl~g of repairs whloh said Board In
Its dlscretlondetermIned 8hould be Aade. As only the
Coml88Ione~8~ Ceimt Is mpewered under the Constltutlon
and statute8 to levy taxes for hospital pWpO8e6, only
that agency could issue tire warmAts and levy a taI for
the paylent of the interest and prfaelpal thereof. We
think that Artlola 44941, In provldiag that oUA@lete
authority 18 vested 3.nthe Board of bnager8. would re-
quire that time warrants would be Issued by the Caris-
~loner8~ Court at the fnstamoe of the Board of Kazqers
for the repairs designatedby the Ik3apd. The Cummls.~lolr-
err’ court would eater 8Ueh caAtracrt8aAd issue the tti
warrants IA accordaaoewith the request ef the Board:,a8-
sum&g, of course, that the purpose Is proper. There-
fore, IA answer to 7our questlo& the Conlrsloners*
Court of Bexar Cow&y my legally iS8Ue and deliver the
tire warraAt8 IA que8tleA SOP the purpose of repair@g
Robert B, Qreen Uemorlal Rospitrl Rrovlded the provi-
slons of the "Bond and Warrant Law (Art. 2368a, V,C.S.)
are ret, and provided, further, that the county has the
taxlag power to do IO.
Bmb#equomt to the reeolpt of your requeek YOU
Hon. VT; Il.Heaslej, p4e 8 (V-944)
have rpkritted lddltloaal qu88tlaM uhloh 8ro 88 fallwmt
Q8~abon6ber8qulrmUo?8aldBoaH
for the protection of the CoumtJ 8galnet
the 1088 of much County fmd8 tr8Mfema
to ‘ala Baud, 8rd, if not, whether or not
In the event of the porrlble 1088 Or di881-
patlw of 88ld fwdr by me&d Board, uy
perron or 0rflcm li8btlitr for raid
1088 reuld be incurmU by the Car288ion-
ers’ Court am a body, or by a~ of the ma8-
berrrthereof as lndlrldualr,in either tblr
private or offlclal capaoltl88,throq@ the
porsible ua8teiPl or wrongfW. a&Ion Of 8-h
Board XW8Ultl~ in the 108‘ Of pu?f Or a11
of ‘aid hospital moziles?"
Wo flma no ltatute whloh requires a BIOBMF of
a Board or H8magers ef 8 eltPcomt horrpltaloperat
under the prorlsl~ns Of Artlole 448 I to exeoute a bo%I
oonditlonM agala8t the 10s‘ of amty ibad trmrfer-
red to.raid Bomrd, The Bo8rd members will be liable for
8l88ppllaatloaof W, and 8hould follow Artiale
z9 eomwrnlmg beMod bpoeltole8, 8nd all otbr
``eaa8statotes relmtlng to the use and cmre of pu q
'p-
.
Wrally speaklq, Cewls8loner8~Courts
would aot h liable for the offlelal lets of a Beard
of l&-err of a olty-e6untyherpltal. lbeir bond8 8ro
cardltionedan their m faithful perfonuwe. &ar8tu,
thl8 wtter x98olre8 ltrelf Into a fmtual 8ltuatiOl,
amlth8reforewe areplroluded frcaur*OP*tlw lly.
lb‘ ~lmw tax ret‘ tlut ry be low '1 '
lu~theComl“l‘wr“C‘wtoflkru
~tJhrb88piul~w Irrowotirrr
wl.ll.t~h80~ tieA of al. Nobert B.
z‘ ital rltb the Cltr of
pwmu‘nt to the p‘wl‘l‘m‘ ‘f _,
S%Z‘&, mm8818 civil S 8tute8, l8
~lt&x"to ez8oaal~ntho tloovalma-
., .
The C6wll‘rmwre' court arawer cm-
tyw]l le@llr Luw amd deliverth8tiw
wemeat luth wleeab r th eCm1 8slewr 8t
-
HOA. Wm. N. Rensley, page 9 (V-904)
Court on January 3, 1949 (prior to the ef-
fectlve date of House Bill No. 106, Acts
51st Legislature), for the repair of Robert
B. Green Memorial Hospital provided the pro-
vlslons of the Bond and Warrant Law are met,
and provided, further, the county has the
taxing power to reet the requirements thare-
of.
The Board of Managers of a olty-county
hospital operated pursuant to the provlslona
of Art1010 44941, Vernon’s Civil Statutes,
are not required by such statute to execute
a bond conditioned against the lose of ooun-
ty funds transferred to such Board. Board
members are liable for any mlsapplloatloa
of funds and should follow all applicable
statutea relating to the use and care of
public funds,
Yours very truly,
ATTORNRYOBNBRAL OFTEXAS
BW:bh:mw
-b?*
AsslstaAt~
APPROVRD