Hon. William N. Hensley           Opinion NO. V-623
Criminal District  Attorney
Bexar County                      Re:    Maximum salaries   of
San Antonio, Texas                       personnel of Robert
                                         B. Green Memorial
                                         Hospital and author-
                                         ity of the Commis-
                                         sioners’ Court to ex-
                                         pend in excess of 20$
                                         on the $100 valua-
                                         tion of taxable prop-
                                         erty voted for such
                                         purpose.
Dear Sir:
            You submit the following    questions:

           “(1 ) Is the Dower of the Board of Man-
     agers of the Robert-B. Green Memorial Hospi-
     tal under Art. 4480, R. C. S. 1925 to ‘fix
     the salaries   of the.Superintendent   and all
     other officers   and employees within the lim-
     it of the appropriation    made therefor  by the
     Commissioners’ Court’ limited to the maximum
     permitted for County employees under Art.
     3912-e, Sec. 19 (h)?
            “(2)   Where a majority of the qualified
     tax-paying    voters of the County have, at an
     election    held for that purpose, authorized a
     tax of not over 20# on the valuation of $100.00
     in accordance with the provision     of Sec. 3 of
     Art. 4437-a     as amended by Acts of 1945, 49th
     Leg ., p, 46b Chap. 295, par. 2, does the Com-
     missioners I L!ourt of such County have the power
     to appropriate     out of the County Purposes Fund
     a sum in excess of 20$ on the valuation of
     fi;ytOO for the operation of such County Hospl-
Han, William   N. Hensley - Page 2     (V-623)


           Articles   4478-4494 authorize Commissioners’
Courts to establish    county hospitals    and prescribe a
system for the maintenance      control,   and operation of
such hospitals    under the direction    of a county board
of managers appointed by the Commissioners’ Court.
The pertinent    parts of said artfcles    are8

           Article    44798

             ‘When the commPssfonersD court shall
      have acquired a site for such hospital and
      shall have awarded contracts    for the neces-
      sary buildings and improvements thereon, it
      shall appoint six resfdent property taxpay-
      ing citizens    of the county who shall con-
      stitute   a board of managers of said hospf-
      tal 0 0 0 .”
           Article    4480:




           Article   3912e9 Section 191, provides the meth-
od by which the Commissioners * Court of Bexar County may
fix the compensation of deputies,      assfstants  and employ-
ees of “any district    or county officer    or precinct  offf-
cer.,*  Said article   does not a ly to officers      and em-
ployees mentioned in Article      4@O of Vernon’s Civil Stat-
utes whose compensation is ffxed by the hospftal board
of managers.
            In Galveston      H. & S, A; Ry, Co. ve Uvalde Coun-
ty,   167 SoWa (2d)   305 4error   refused), the Court said:
             “The Commfssfoners’ Court of a county
       has only such powers as are expressly or
       by necessary implicatfon   given it by the
       Constitution  and Statutes of this State.”
       Tex. Const. Art, V, Set, 18; V,C,S. p Art,
       11, Sec. 3."
Hon. William   N. Hensley - Page 3      (v-623)



            Commlssionerst Courts have not been given the
power to fix the salaries    of county hospital  employees.
When such Court has appointed the county hospital      board
and appropriated   the money for its operating expenses,
as far as salaries   are concerned, 14 is through.    The
county horpltal   board is authorized to appoint a super-
intendent and fix the salaries    of the superintendent   and
other officers   and employees of the hospital.
            The only limitation   of the authority   of the
Board of Managers of such hospitals     to fix the salaries
of hos ltal employees is contained in the language in Ar-
ticle  f:480 Vernon’s Civil Statutes:     ‘Said board shall
fix the salaries    of the superintendent and all other of-
ficers   and employees within the appropriation    made there-
for by the Commissioners      Court, and such salaries   shall
be compensation in full for all services rendered.”
             The fact that the Legislature   repealed all laws
and parts of laws in conflict    with said Article    3912e,
Section 19 (h) does not militate     against our decision
that the Board of Managers of Robert B. Green Memorial
Hospital    is not limited by said article  because it is not
in conflict    with the special purpose law which controls
the operation of county hospitals,
            In view of the foregoing,    we answer your first
question   in the negative,
            For the years 19451950,   both inclusive,   at an
election   held for that purpose by authority   of Section ‘9
of Article   VIII of the State Constitution,   the qualified
voters re-allocated   the tax rate in Bexar County so that
the general fund, from which the hospital     operation and
maintenance must come, receives.46@    of the maximum 80# on
the $100.00 of taxable property in Bexar County.
           The Bexar County Budget for 1948 allocates
$385 560.00 to the R. B, Green Memorial Hospital from a
tax ievy of .1890 cents on the $100.00 valuation,     the to-
tal of which is shown to be ~204,000,000.00;   and also
$19,795.08 derived from delinquent taxes, aggregating
$405,335.08 for maintenance of said hospital.    The budget
was approved and the tax levied by the Commissioners’
Court as provided by law.
          The aggregate    sum is broken down in the 1948
budget as follcws:
Hon. William   N. Hensley - Page 4     (v-623)


R. B. Green m
Operation                      5176.682.'@
Pay Roll
Contingencies                                  $358,71%63

           The ertfnent part of Acts 1945, 49th Legisla-
ture, Chapter %5 page 93, which now appears as a~note
under Article  16b6 of Vernon’s Civil Statutes, which ap-
plies to Bexar County, reads:
           ” a 0 0 the amounts budgeted for current
     expenditures from the various funds of the
     county shall not exceed the balances In. said
     funds as of January 1st plus the anticipatrd
     revenue for the current year for which the
     budget is made, as estimated by the County
     Audit or 0 Upon final approval of the budget
     by the Commissioners Court, a copy of such
     budget as approved shall be filed with the
     County Auditor, the Clerk of the Court, and
     the State Auditor, and no expenditures    of the
     funds of the county shall thereafter   be lade
     except in strict   compliance with said budget.
     Said Court may upon proper application    t.rans-
     fer an existing   budget surplus during the
     year to a budget of like kind and fund, but
     no such transfer   shall increase the total of
     the budget 0n
           Section   3 of Article   4437a reads4

           “A direct tax of not over 204 cm the val-
     uation of $100.00 may be authorized and levied
     by the Commissioners Court of such county for
     the purpose of erecting buildings    or other im-
     pr0vement.s and for operating and maintaining
     such hospital;   provided that all such levy of
     taxes shall be submitted to the qualified     tax-
     paying voters of the county    and a majority
     vote shall be necessary to i evy the tax.     suc-
     cessive elections   may be held to authorize ad-
     tfonal taxes hereunder p,r~RU&ya
                                    of 01 Del- t&Q .-
                                    provided.”
Hon. William   N. Hensley   - Page 5    (v-623)


            The stated purpose of the tax levy is “erect-
ing buildings   or other improvements and for operating
and maintaining such hospital.”    The tax “shall not ex-
ceed 204 on the $100.00 valuation” for such purpose; at
an election   held for the purpose the qualified  voters
authorized the Commissioners ( Court to levy “not over
20# on the valuation of $100,00,1’
            In the case of City of Kingsville,    Texas v.
Meredith, 103 F. (2d) 279, it was contended that a city
charter provision   that the city is authorized    “to levy
and collect   not exceeding 754 for general maintenance
purposes” constitutes    a definite  apportionment of 75f
to that purpose.    While that is the converse of the sit-
uation under consideration     the Court defined the words
“not exceeding” and in that regard said:

           “, . . The provision       in the charter that.
     the City Is authorized        ‘to levy and collect
     not exceeding 75# for general maintenance
     purposes’ is not as appellants         claim it Is,
     an apportionment,     a setting apart excluslve-
     ly to maintenance purposes,         of that much of
     the taxing power.       It is merely a llmitation
     imposed upon the use of the taxing power for
     that purpose.    ‘j&.e words ‘not exceedine. * j&
                                 not of wt        or anDa-
                               tatlon onlv.          stand-
                               ilv    o onstrued. Stuy-
     vesant Ins, Co, v. Jackso&i~le           Oil Mill   6
     Cir.,   10 F. (2d) 54, The context in whizh
     they are here used makes that construction
     more imperative,     for instead of a following
     provision   for $1.75 ‘for all other purposes,’
     as would have been the case, if apportion-
     ment had been intended, there follows a gen-
     eral provision    for the levy and collection,
     without apportionment,        and ‘for all purposes,’
     of the full $2.50 constitutional          levy.
           In the case’; of Saxhaug vI; Count&of Jackson
(Min& Sup.) 10 ,N. W. I       ~722; the Court defined “not
exceeding” as follows:
           “It is the function     and duty of the
     county board under subd.      3 (subsection  (c))
Hon. Yllliam   1. Rensley   - Page 6   (V- 623)


     to determine the rate of any assessment      for
     ditch repairs.


     uts the words ‘not exceeding’ are words of
     ldtation.     City of ,Kl.ngsville,  Tax. v.
     MerrdiYh, 5 Cir.,   103 F. 2d 279. The vords
     denote uncertainty   of amount. Stuyvesant
     Ins. Co. v. Jacksonville    Oil l4iU; 6 OSr+
     10 F. ‘26 54. Such language Imposes no d&y
     to adopt the maximumrather than some lesh
     amount authorized.”

             In ViewI of the foregoing    it is our a@,@-
that the authorlty~of     the Commissioners1 Court bo Levy
no tto lsxcb* %&LO     ~Ximym of 20# er $lOO.OO valubtienn
as q *rrwel ia Blwdm 3 ef Artic 4:(I 44378, vbrneri’s C.i,Q-
il 8 8, Mm,     i%ucbr a nx@wa    Wr4t of funds whiah raK be
tizuwa     t0 a. xf. awn wwwz          mpita3'f0r    BBY pear,
a6 rat.0 bp the VbteSg Of %XnF        CoUnty.    Th@, of course,
IS #xc~I Usivs of delilkquent taxes from such fund and any
income which may be derived from paying patients.         The
maximumamount of current tax money that may be used in
1948 for maintenance of the Robert B, Green Hemorlal Kos-
pita1 is .1890# on the #lQO.OO valuat,ion as provided $a
the current budget.




             !fhr Board of Managers of a County Bes-
      pita% bat qclusive     authority to fit the,
      a&xiee      of the Superintendoat,and  all other
      offitora    and employees vlthin the appropria-
      tSon tie     for such hospital by the Cemmle-
      rioner s ’ court 0
             ArtWe   3912e, Sec. 19 (h) V. C. 8.
      d&s not apply to the Superintendent or other
      offiaers   and employees of a county hospital.
            Commissioners’ Courts in countios,rhich
      have voted to authorize  such courts to levy
      not exacediag 20.4 on the $100.00 valuation of
      taxable property in the aounty for maintenance
Hon. William   N. Hensley   - Page 7   (v-623)



     of hospitals   are not authorized to appropriate
     any additional    sum for such purpose from any
     other county purpose fund for any years.

                               Very truly    yours,

                            ATTORNEY
                                   GENERALOF TEXAS


                            B&4/&e&-
                               W, T. Williams
WTWwb                          Assistant


                            APPROVED:
