                                ATTORNEYGENERAL                       OF   TEXAS
                                             GREG        ABBOTT


                                                 August 29,2005



The Honorable A. J. (Jack) Hartel                          Opinion No. GA-0353
Liberty County Attorney
Post Office Box 9 127                                      Re: Allocation of county funds to a hospital
Liberty, Texas 775759127                                   district that does not comprise the entire county
                                                           (RQ-0322-GA)

Dear Mr. Hartel:

          Your office inquires about the allocation of county funds to the newly created Liberty County
Hospital District No. 1 (the “District”). You inform us the District is wholly contained within
Liberty County (the “County”), but its geographic territory is not conterminous with the County’s
geographic territory. ’ Pursuant to Health and Safety Code chapter 286, the applicable statute
governing the creation of hospital districts, the County is obligated to transfer to the District, inter
alia, its operating funds and reserves. See Request Letter, supra note 1, at 1; see also TEX. HEALTH
& SAFETYCODE ANN. 0 286.071 (Vernon 2001). At the same time, because the District does not
comprise the entire County, the County must retain some funding in order to fulfill its obligations
to provide care to County residents who do not reside within the District’s geographic boundaries.
See Request Letter, supra note 1, at 2. Thus, you present three formulas by which the County could
divide the funds between the County and the District and ask us to opine whether the County can
“use any one of the[] calculations, at its discretion” and still comply with the law. Id.

I.       LePal Backmound

         A.       Health and Safety Code Chapter 286

          You inform us that the District was created by special election pursuant to chapter 286 of the
Texas Health and Safety Code. See id. at 1. Once created, a hospital district “assumes full
responsibility for operating hospital facilities and for furnishing medical and hospital care for the
district’s needy inhabitants.” TEX. HEALTH& SAFETYCODE ANN. 8 286.073(a)( 1) (Vernon 2001).
Specifically, a hospital district is charged with supplying to “patient[s] residing in the district the care
and treatment that the patient or a relative of the patient who is legally responsible for the patient’s
support cannot pay.” Id. 5 286.082(a). In addition to assuming the obligation to care for resident
indigents, a hospital district is required to “assume[] any outstanding indebtedness incurred” by a
political subdivision in which “all or part of the district is located in providing hospital care for
residents of the territory of the district before the district’s creation.” Id. 5 286.073(a)(2).


         ‘See Request Letter from Mark Beausoleil, First Assistant County Attorney on behalf of Honorable A. J. (Jack)
Hartel, Liberty County Attorney, to Honorable Greg Abbott, Texas Attorney General (Feb. 28, 2005) (on file with
Opinion Committee, also available at http://www.oag.state.tx.us)   [hereinafter Request Letter].
The Honorable A. J. (Jack) Hartel - Page 2                        (GA-0353)




       Political subdivisions in which a hospital district is located are required by chapter 286 to
convey or transfer to the district:

                        (1) title to land, buildings, improvements, and equipment
                related to the hospital system located wholly in the district that are
                owned by the [political subdivision] in which the district is located;

                         (2) operating funds and reserves for operating expenses and
                funds that have been budgeted by the [political subdivision] in which
                the district is located to provide medical care for residents of the
                district for the remainder of the fiscal year in which the district is
                established;

                         (3) taxes levied by the [political subdivision] in which the
                district is located for hospital purposes for residents of the district for
                the year in which the district is created; and

                        (4) funds established for payment of indebtedness                assumed
                by the district.

Id. § 286.07 1 (emphasis added). Your question relates to transferring operating funds under section
286.071(2). By its plain language, see Carmona v. State, 76 S.W.3d 29, 3 1 (Tex. App.-Amarillo
2001, pet. ref d) (“We look to the literal text of the statute and apply the plain meaning of its
words.“), section 286.071 requires a political subdivision, here a county, to transfer only the
operating funds necessary to provide care to the “residents of the district.” TEX. HEALTH & SAFETY
CODE ANN. 5 286.071(2)-(3) (V emon 2001) (emphasis added). Once a hospital district is created
in a political subdivision, the political subdivision is thereafter prohibited from levying taxes or
issuing bonds or other obligations “for hospital purposes or for providing medical care for the
residents of the district.” Id. $ 286.072 (emphasis added).

       B.       Health and Safety Code Chapter 61- Indigent Health Care and Treatment Act

         Pursuant to chapter 6 1 of the Texas Health and Safety Code, a county “shall provide health
care assistance . . . to each of its eligible county residents.” Id. 0 6 1.022(a). An “eligible county
resident” is a person who meets the income and resources requirements established by chapter 61
or the political subdivision, see id. 8 61.002(3), (6)’ and who does not reside in the service area of
a public hospital or hospital district. See id. 8 61.002(2). A county is thus not required to provide
“health care services” and assistance2 to a county resident who resides in the service area of a public


       ‘A county is directed by chapter 61 to provide the following basic health care services:

              (1) primary and preventative    services designed to meet the needs of the community,   ...;

             (2) inpatient and outpatient    hospital services;

             (3) rural health clinics;
                                                                                                        (continued...)
The Honorable A. J. (Jack) Hartel - Page 3                     (GA-0353)




hospital or hospital district. Id. 5 61.033(a)(l). You do not ask about chapter 61 of the Health and
Safety Code, but our examination of it reveals no requirements or guidelines directing a county’s
apportionment of the specified operating funds.

          Thus, pursuant to chapter 286, a county in which a hospital district is created must transfer,
among other things, its “operating funds and reserves for operating expenses and funds that have
been budgeted . . . to provide medical care for residents of the district.” Id. 8 286.07 1(a)(2). And
pursuant to chapter 61, a county is still charged with the duty to provide medical care assistance to
each eligible county resident not residing within the hospital district’s territory. See id. fj9 6 1.02 l-
.022. Where a newly created hospital district encompasses an entire county, all county funds
budgeted for indigent health care services should be transferred. However, where the territory of a
new hospital district does not comprise the entire territory of the county, less than the whole amount
of county funds is to be transferred. See id. § 286.071(2) (transfer of funds required to “provide
medical care for residents of the district”). This is particularly true because that same county must
still provide health care services for those indigent county residents who do not reside in the hospital
district. See id. $8 61.022(a), .028(a), .033(a)(l).

II.     Questions

        With this understanding of the issue confronting Liberty County, we address whether the
County can use “any one of [three] calculations, at its discretion, and still be within the legal
parameters of Health and Safety Code section 286.071.” See Request Letter, supra note 1,
at 2. The three calculations you suggest are:

                  (1) multiply the budgeted funds remaining for the year by the ratio
                      derived from calculating the county’s population residing within
                      the district divided by the county’s population for the entire
                      county;

                  (2) multiply the budgeted funds remaining for the year by the ratio
                      derived from calculating the geographical area inside the district
                      divided by the geographical area of the entire county; or




       2(...continued)
               (4) laboratory    and X-ray services;

               (5) family planning     services;

               (6) physician    services;

               (7) payment for not more than three prescription     drugs a month; and

               (8) skilled nursing facility services, regardless of the patient’s age.

TEX. HEALTH& SAFETYCODE ANN. 9 61.028(a) (Vernon 2001).
The Honorable A. J. (Jack) Hartel - Page 4             (GA-0353)




                (3) multiply the budgeted funds remaining for the year by the ratio
                    derived from calculating the county’s indigent population that
                    resides in the district divided by the county’s indigent population
                    for the entire county.

Id.

III.    Analvsis

          With regard to the County, the commissioners court is the body to exercise discretion,
 particularly when it comes to the County’s fiscal policy. Pursuant to article V, section 18 of the
 Texas Constitution, a county commissioners court shall “exercise such powers and jurisdiction over
 all county business, as is conferred by this Constitution and the laws of the State.” TEX. CONST.art.
 V, § 18(b). The commissioners court is the “county’s principal governing body,” and its “powers
 and duties . . . include aspects of legislative, executive, administrative, and judicial functions.”
 Comm ‘rs Ct. of Titus County v. Agan, 940 S.W.2d 77’79 (Tex. 1997). And although “the legal basis
 for any action taken must be grounded ultimately in the constitution or statutes,” a commissioners
 court may exercise broad discretion in conducting county business. See Guynes v. Galveston County,
 861 S.W.2d 861, 863 (Tex. 1993) (citing Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948));
see also Tex. Att’y Gen. Op. No. JM-788 (1987) at 1’3. Specifically, where a right is conferred or
 a duty imposed on it by the legislature, the commissioners court has broad discretion, subject to
judicial review, to accomplish the purpose intended. See Guynes, 861 S.W.2d at 863; see also Agan,
 940 S.W.2d at 81; Tex. Att’y Gen. Op. No. JM-788 (1987) at 3. Moreover, a county “has the
 statutory authority to oversee the fiscal operation of the county by approving and authorizing a
budget. Generally, the allocation of county funds is a policy-making determination left to the sound
discretion of the commissioners court.” Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. App.-El
Paso 1993, no writ) (citations omitted).

         An early Texas court of appeals decision defined discretion of “public functionaries” as the
 “power or right to act officially, according to what appears just and proper under the circumstances.”
Permanent Rd. Comm ‘rs v. Johnson, 23 1 S.W. 859, 860 (Tex. Civ. App.-Dallas 1921, no writ).
Discretion has also been defined “‘as the act or the liberty of deciding according to the principles of
justice and one’s ideas of what is right and proper under the circumstances,             . . . deliberate
judgment[,] . . . the power to discriminate and determine what, under existing circumstances, is right
 and proper. “’ Tex. lndem. Ins. Co. v. Arant, 171 S.W.2d 915, 919 n.1 (Tex. Civ. App.-Eastland
 1943, writ ref d w.o.m.) (citation omitted); see also Minns v. Piotrowski, 904 S. W.2d 16 1,168 (Tex.
 App.-Waco 1995, writ denied) (“‘Discretion’ signifies a power to choose among alternatives within
 legal bounds.“).     The United States Supreme Court has recognized that discretion “implies
the absence of a hard-and-fast rule.” The Steamship Styria v. Morgan, 186 U.S. 1, 9 (1902).
Discretionary acts can be contrasted with ministerial acts that “require obedience to orders or the
performance of a duty to which the actor has no choice.” Deaver v. Bridges, 47 S.W.3d 549,553
 (Tex. App.-San Antonio 2000, no pet).

       Neither section 286.07 1 in particular, nor chapter 286 in general, provides a specific method
or formula by which to allocate funds between the County and the newly created District. See
The Honorable A. J. (Jack) Hartel - Page 5            (GA-0353)




generally TEX. HEALTH& SAFETYCODEANN. 84 286.001-. 18 1 (Vernon 2001) (chapter 286). Nor
does chapter 61. See generally id. $5 61.001-.066 (Vernon 2001 & Supp. 2004-05) (chapter 61).
Section 286.071 requires the funds to be transferred so that the newly created District can provide
the necessary care to the indigent residents of the District. See id. 5 286.071(2) (Vernon 2001). The
use of the phrase ‘indigent residents’ suggests that the two calculations utilizing population would
yield a result more in line with the mandate of the statute. We recognize, however, that in addition
to the needs of the indigent residents of the District, the proper allocation of the specified operating
funds between the County and the District requires a decision based on the consideration and
balancing of numerous options and factors particular to the County and the District, and might
include geographic factors. Deciding between various alternatives based on consideration and
analysis of competing factors requires deliberate judgment which is, by definition, an exercise of
discretion. See Johnson, 231 S.W. at 860; Arant, 171 S.W.2d at 919n.l. Accordingly, we conclude
that the commissioners court, in its discretion and subject to judicial review, may use one of the three
calculations presented or an alternative calculation, see infra at 5, and not run afoul of section
286.071 so long as the calculation provides for an allocation that enables the District to fulfill its
obligation to provide care to indigent residents.

          Chapter 286 does provide a formula, just not one that directly speaks to your question.
Section 286.073(b) provides a specific formula that directs a new hospital district’s assumption of
a county’s indebtedness.     See TEX. HEALTH & SAFETY CODE ANN. 9 286.073(b) (Vernon 2001).
Where part of the political subdivision is included in the district and part is not included in the
district, “the amount of indebtedness the district assumes . . . is that portion of the total outstanding
indebtedness . . . for hospital care for all residents of the [political subdivision] that the value of
taxable property in the district bears to the total value of taxable property in the [political
subdivision] according to the last preceding approved assessment rolls . . . before the district is
confirmed.” Id.; see also TEX. CONST.art. IX, 8 9. While this formula might be another alternative
calculation, we do not believe this formula must be used to apportion the specified operating funds.
The section 286.073(b) formula relates to indebtedness and is not part of section 286.071, which
relates to the transfer of the specified operating funds. See TEX. HEALTH & SAFETYCODE ANN. 8
286.071 (Vernon 2001). Moreover, the statutory formula in section 286.073(b) is necessary in
context in that it requires the District to assume the portion of the County’s indebtedness that is
secured by the proportion of the taxable property contained within the District.

IV.     Conclusion

          Because we have concluded that apportionment of these funds is a discretionary matter for
the commissioners court and because we believe the determination of which calculation to use
involves consideration of factual issues, it is not appropriate for us to offer an opinion on the
County’s use of one particular calculation. See Tex. Att’y Gen. Op. Nos. GA-0003 (2002) at 1 n.2
(stating that the opinion process cannot resolve fact questions); JC-0020 (1999) at 2; JM-3 10 (1985)
at 5. We remind you that the commissioners court’s exercise of discretion is not unfettered. A
district court has supervisory jurisdiction over a commissioners court when the commissioners court
acts beyond its jurisdiction or clearly abuses its discretion. See TEX. CONST. art. V, 0 8; see also
Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992). “If the commissioners court acts
illegally, unreasonably, or arbitrarily, a district court may so adjudge.” Agan, 940 S.W.2d at 80.
The Honorable A. J. (Jack) Hartel - Page 6            (GA-0353)




                                        SUMMARY

                        The Texas Health and Safety Code requires a county in which
                a hospital district is created to transfer to that district the county’s
               operating funds budgeted to provide medical care for the district’s
               indigent residents. Where the hospital district does not comprise
               the entire county, neither chapter 286 nor chapter 6 1 of the Health and
               Safety Code provide a specific method to apportion the operating
               funds between the county and the hospital district. The county
               commissioners court is the county’s governing body and is vested
               with discretion over a county’s fiscal policy Absent a statutory mandate
               on the apportionment of the operating funds, the commissioners court
               may use its discretion, subject to judicial review, to choose the
               calculation by which to divide the funds, provided the resulting
               transfer comports with the statutory duty to provide care for the
               indigent residents of the district.




                                               Attorney -1        of Texas


BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
