OFFICE   OF   THE   AYTORNEY     GENERAL   OF TEXAS

                        AUS7lN
Honorable     'is. C. Oarvep,    Page 2


              At s eubsewent        date you sent,   et   our request,   the
ad':itIonal    informatIon      which follo~a:

             "IIIreply t0 YOUr letter     of kugu::t 19, 1940,
      regarding    OpInlan Sequest ho. 0-2568,      ~111 state
      that in 1913 Bexar County issued hospital          bonds In
      the amount of $125,000.00       and the City of Jan
      Antonio at this     time also Issued hospital      ponds
      In tho amount of ~l25,000.00,       izskinfi a total  of
      $250,000.00,    which bonds were voted by the people
      and tie proceeds      of this sale were used for the
      erectIon    of the City and County Hospital.
           *'&en this ZiospItal wes erected,       which '~1s
      probably In 1913, the City and County entered           Into
      e contract   under oertain     statutory  laws for the
      operation   tend maintenance    of this Hospital,    the
      City sgreelnf:    to take oare of 36s of thle expense
      and the County 64s.       'The ??ospItel operated   on this
      baele until the peaeage of Bouae 3111 X0. 222,
      Chapter 219, page 322, 40th Legislature,          Regular
      Sesef on.   At this time the City disoontinwd         Its
      Qeyment to the County of 36$$ of the cost o? opera-
      tine and maintaining      the City and County Hospital;
      which Is oalled     the Robert 2. Green Memorial Hospi-
      tal.    or wurse,    this levy was made after a majority
      of the voters or this County at an election          had
      voted for this lO$ levy.
             *Bexar County et this time has out-standing
      $66,OOO,OO of these Hospital         Bonds but levia    no
      tax to cover the Interest         and prlncipel  on these
      bonds as the Eoapital      Fond .:InkIng Fund hae &O,OOO.OO
      invested    in aexar County bonds and the revenue from
      this Investment     I8 sufficient     to take Care of the
      Interest   and principal     on the $66,000.00    out-standine
      Hospital bonds.
              q*~he CommIasIoners* Court is now planninE to
       levy the full 1~ under House dill         282  and in addl-
       tIon make en appropriation     Out of the Termanent Im-
       Qrovement Fund of op:;roximately      ~:28,000.00,   WhIoh
       is equal to e~~roxImately     a 2G tax levy out of the
       251 authorized    in Artiole  8, i:eotion 9, of the Con-
       stitution    of the :cpite or Texas, 'for the erection
Honorable      E.G. Garvey,      Page 3



                                       sewera, watorworlcs   and
                                         Thin 2$ 1s not for
                                       msnte at the Hospital
     but 16 a straight    lery or 2$ out or the 25d on ad
     valoraa   tax to bo aolleoted   by the Tar Collector.   and
     spent by the ComnissIoner8*     Court and the Xoapital
     as oolleoted    r0r improrenmts   or the  city  and county
     Hoepltal   ahioh would really   make a total   tax loty
     or     12#.*

          House Bill Number 882, Acts 1927,               40th Leg., R. El.,
Ch. 219, p. 322 is Incorporated    In Vernon’8            Annotated Clrll
Ztatutes a8 Art1818 4437s.     For conveniauoe            we ahall hereartor
refer to It as Article  4437a.
               That Artlole     prorldee:
            5eotion      1.   That all countiea        In Toxar having
     a population        of 210,000     Inhabitants,      a# ahom by
     tlm oensus OP 1920, In which 6re established                   hos-
     pitals    jointly      owned and operated by any city and
     OOUILty, In v&Ich raid hospital              is lboated,    the said
     oounties     or, oltlea    undar the terms of mutual agree-
     ment, and not otherwise,             are hereby authorized        to
     deafgnate      either    the county or cfty govermnt              for
     the purpose of taking over the entire                 omorshlp
     and control       of suoh hospital        upon suoh terms a8
     may be mutually         agreed upon between t&e olty           Imd
     county owning euoh hospitals              and operat In& the
     same, and protIdIng          further that auoh portions           oi
     the tax hereinafter          rmtrrrad     to shall,    If voted by
     a majority       of the quallried       votere,     be used to take
     oare of the Interest          and ainking       fund required     br
     law on all outstanding           bonda of the city        or county
     heretofore       Iesued whlcb have beon inourrsd against
     the building        or maintenauoe      of said hoopitalie      Or
     that may hereafter          br iaaued.       That in oaao it ia
     determined       by aaid mutual agreement for the Oity
     to take over the aald hoopltals                and operate the
      eama, the board of managrrs may be appointed                  br
     the governing         body of the city ln acoordenoe with
     the terms of Its aharter or in aooordance with Its
      judgment.
                              That ii In the judgment 0r the        oom-
                               County ~ommlssloners  and City
Honorable   E. C. GarTey,    Pug6 4


     Councila   of such altlan,     a8 may be gart own,gs or
     suoh hospltale,      a countywide   elaotlm    to dotere&ne
     the ruturs     ownorshlp and operation      or the boapi-
     t8l in doairable,      suoh oountywtlda electfon     may be
     ordered on ths inltlative       or such oomblned bowa8,
     and a sojorlty     vote on t&a que5tlcms      aubmltted
     shall  govern the future ownersh.1~ cold oporatlon         or
     the hoapitols,     tho expnso     of auoh eleotfon     to be
     paid by the Commlaeionere*        Court from oount.7 funda.
            “3.0. 3.    A ah-rot tax 0r not ovar ten ornto
     (lO$) on the valuation      cb Cna I:Wdred Lollsrs
     ($100.00)    may be authorized    and levied     by the Com-
     missionera     Court of auoh county for the purpoor
     of ereotlnp    bufldfngr   or other improvemen ta end
     for melnteinin6t such hosgltala;      provided     that all
     such levy of texe8 ohs11 be submitted          tc the quali-
     tied taxpaying     voter8  ot the oounty,    and a maMjorIty
     rote ohs11 be neoar88ry to levy the tax.
            TOO. 4.     The iioerd of Umaaere or Direotore
     of such hoapltal     almll be eleoted,         wh~en so taken
     ovar, by the County CommIarloners*             Court, end aald
     Board ahall oonelat of not leea than three mam-
     hers, or more than nine members, and when a0 eleot-
     ed shall    be rseponalble     for and have full and oom-
     plete   control   or tAxi -msnagement       0r the oonauot
     or much horrpltal    or hospitala,       elrlne   a report    or
     their mtmsgesPeot at heat         once every quarter to the
     CommirsIoners*     Court, and ~5 much oftener          as raid
     Court may request,      upon any and all acts,         ruleB
     and regulations     perromned     by them.      They ehall ale0
     give a qnarterly     financial     statextent    to the C~ZQ-
     mIaeioners*     Court shoring ell money expended and
     rea*Ired    by then and showing ruily ror whet pur-
     posse tbe money hae been expended.
            “7e0. 5.    The said hoapltal    or hOapItal8   ah811
     ~JVIJ free aervloe     t:, all sick un,! injured  Indhsent
     0itizena    0r tiia entire    county.
           “CbO. 8.   Said Soerd of X:anatqrs ehell bs ap-
     poInted fcr such terms that the terme cb one-third
     or the number or the members cf the bard WI11
     expire every two years and th0 tcm or orrice     for
     such lpembertj of the Board shall  be for eix Yeara.
Honorable     E. G. Garvey,       Paga .dg


             "Sgo. 7.    Dua to tha lerga amount of date11
      work naaesaary     to perfeot   the reorganization       under
      thie Aot, It is neoeaeary       that suoh mark begin at
      the aarliast    prcotioal    moment, end ror the good of
      the Eospital    System, and on account of the orowdad
      aondltlon    of the oalendar,     oraetes   en anergenoy
      and an Imperative      pub110 naoaeaity,      damending the
      auspannIon of the Constitutional          Rule raqulrlng
      bill8   to be read on thraa several        days, and the
      aald rule    Is hereby Iru8pandad, end this Act la to
      taka arreot upon end after its peaaaga,           end lt is
      so enaotad."
              -A spaolal    or privet5    act 1s ona ralatlw       to
      particular      Feraons or thin@8 of a oleas,         elthar
      Qertloulerlzad       by tha axpraee terms of tha sot or
       separated     by any-method     bf aeleotlcn   rrom the
      whole olass to whi oh the law might , but iOr such
      limitations.      be epplloable.q       25 Ruling    Ceae Law,
      Section      65, at p. EfJX1Undersoor~~        ours)
              Artlola    4437a claerly      omaa  within the definition
or a local     or eproiel     law.    Saotion one of that statutory
provlaion     separates,    partlotiarlza5,      end rsflrlots      its ap-
plloabillty      to the whole olear by two method8 or means.
Namely, It     Is reetrloted       by population    and lpaciellzed     by
the method     provided for aeofftaining         tbt    poptiation.

              Artioh    4437a,     by ito    Own tarma,   oan only apply
to those     Texas oountiea       *havInu    a popul;t?on   of 210,000 in-
habitants,     aa shown by       the   omaua   Of 19 0 .    (Underscoring
our.)
           An examination     of the 1920 oansus will raveal          that
not a ainela Taxaa County had axaotly          210,000 Inhabltents.
Whether or not the Lagislatura        Intended 210,000 more or leas
la a problem of statutory      construction.       Hero,   howaver, wa
need not be troubled     tith niceties     for Baxar County never oamo
wlthin t.b limits    defined   In Article     4437a.     The 1920 Federal
aanaus reveal5   Bexar    County with a population        or 202,069.
              Saotion   36,   Artlola       3 of the Constitution   provides:
               "The Lagialatura     shell not, except a8 otharwlaa
       provided In this COnatitUtiOn,         pee5 eny local Or
       epeolel    law, authorizing:
              s*   *   *

              *Regulating  the affairs      of counties,    cities,
              towna, wards, or school       districts{
              r*   * *

              WCreating offices,      or prescribing     the powers
              and duties   of offleers,     in counties,    cities,
              towns, election    or Bchool districts!”

              The enaotment
                          of Art1010 4437a violated  the fore-
going    COnlrtitUtiOn81   prOtiSiOnS
                                   and, hMCe, it iS thereby
rendered null and void.    City of Fort ‘sorth Y. Bobbltt,  121,
Texas 14, 36 8. ‘?i. (Ed) 470.
          AOta 1929, 4lat Leg., End C. S., p. 5, ch, 4, Sect.
1, (Art. 4437b, Vernon@a Annotated Civil Statutea) was appli-
cable to B0xar County.   It prori des :
                “That in all oountiea      in Toxaa hating a popula-
        tion of at least      202,000 Inhabitants       and lesa than
        210,000 inhabitants        as shown by the Census of 1820,
        In whioh are satabllehad         hospitals    Jointly  owned or
        operated    by any oitp and county in whioh said hos-
        pital    is loo&ted,   a direct    tax of not mer ten
        cents on the valuation        of Om mndrsd Dollars        may
        be authorized      and levied    by the ComJasloners~
        Court of such Oountp for the purpose of erecting
        building8     and other improrements,        and for main-
        taining    such hospitals,     provided that all auoh
        levy of taxes shall        be suI#alttsd   to the qualified
        taxpaying     rotera of the county and a majority          vote
        shall    be neceaaary    to levy the tarse.”
             me gather from the aet of faots submitted       to us
that the Baxar County Comissionera         Court purported   to levy
the ten oent tax pursuant to the aut:..ority      Erantsd In 4437a,
pernon*s Annotated Cirll Statutes,        and not that authorized
by Artiols     4437b, V,ernon*s Annotated Civil Statutes.       It 00JJ
make no great difference,       however, under which partlaubr
aat the ComarLssfonars      Court assumed to sot,     The stig?aa of
unconstitutionality     touches   the pair of thenz.
             ArtiOle   4437b, Vernon*8 Annotated Civil Statutes,
ia restricted     In It8 application    to those counties  shaving        a
population    of at least    202,000 inhabitants  and leas than
Ronorable    E. 0. Garwy,               Page $7


210,000 inhabitants    as shown by the Census of 192O.w The 1920
Census reveals   that only Bexar County fell      within that popula-
tion braoket.    This, together    wlth the faot that the Aot is
80 phrased as to forever     exolude any other oounty In the State
frcm coming within its purview,      renders Arti        4i37b, Vernon*s
mnotated   Civil Statutes,    null and void by reason that it is
a epeoial  or private   a0t oontrarenlng    3eotion   50, Artlole  3,
of the Texas Constitution,       See City of Fort !vorth ~8, Bobbitt,
aiipra.
               In light   of the foregoing,  the Bexar County Com-
missioners      Court must look to Artiole     4478, Retiaed Civil
Statutes,      1925, for their tax loving      authority    to provide
&uds for the desired Improvements upon ths city-county                hospl-
         Artto1.e 4478, et seq.,     Revised civil   statutes,     1925,
ookera      general   authority  upon the Comlisaionsrs        Court with
regard to county hospitals        and their  ereotion,     maintenanoe,
alteration,      and repair.
              me Com~lasionera    Court may use for county hospital
purposes,     all or any portion,    not previously    allooated,   of the
25 cents per $100 valuation       tax levy authorized       by the Consti-
tution,      provided, however, that in no event shall the tax
levy    exceed the 26 cents oomtltutlonal        ltiit   fixed on the
oounty psnnaneot improremnt        fund.
             could      V.    city      0r   Paris,         68   Texas     511,     4 9.   we    650.
             williama         V.     Carroll,         202   9.    w.     JM.
             v-tmann         Y. slator          (CIT. Am.)             200 3. we 639.
             l&e seaond            question  in the original request                        is    not
auffioiently    speaifio            for ua to attempt an anewere
           TruatiDg that the foregoirq                            affords         an answer      to
your primary Inquiry,   we remain
                                                             Very truly           your8
                                                      AlTOFiNEYGi!XBRAL             OF TEXAS

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