                                                                      a-185


                                         OFFICE        OF

                           TEE ATTORNEY                  GENERAL
                                      AUSTIN.      TEXAS
    PRICE  DANIEL
    ATTORNEYGENERAL
                                       July 11, 1947

          Hr. Lee Bovlin                 op1n10n Ro. y99
          cciunty Attorney
          Hale   county                  Be:   Exemption from ad valorem
          Pla lnvlev , Texas                   taxes of buildloss  and
                                               land belonging t;; Bale
                                               County Cooperative Hospi-
          Dsar Sir:                            tal.
               You have requested an opinion .Srom this Department
          as to vhether or not the Bale County Cooperative Hoapl-
          tal is exempt from ad valorem taxes.      This %ospltalwj
          as we shell hereafter   generally term It, was chartered
          pursuant to the provisions    of Sect Ion 28 of Article
          1302, R. C. S., which reads as Sollovs:
                          VA.   Charitable corporations    may be
                   created’for    the purpose, or purposes, of
                   owning and operating non-profit      cooperative
                  hospitals,    and for the purpose of provld-
                   lag a suitable place in the inrmedlate lo-
                   cality where members and families      of mem-
                   bers of such corporat~lons nag obtain medl-
                   cal, dental, health,     surgical, nursing,
                  hospitalization,     and related services and
                   benefits.    Acts 1945, 49th Leg., p. 102,
                 ‘.ch. 70, @L1.’
                Article III of the Charter of the “Bospltal’
          states that -1s     corporation    does not contemplate pecu-
          niary gain or profit    to the members hereof’ and sets out
          the corporate purposes ‘of the “Hospital” In the language
          ~ubstantlally  that of the +c statute quoted above.
                 Article    VII of the Cfiarter reads as Sollovs:
                       “Section 1. This Corporat Ion shall
                 have no capital   stock, and consequently no
                 dividends,   and any profit  shall bs used to
                 further the charitable    purposes for vhich
                 it Is created, and said Corporation owns
                 no property of any kind.




n
Hr. Lse Novlln,   Page 2, v-299


            “Se,ct Ion 2. The persons signing these
     Articles    of Incorporation   shall bs deemed
     members of the Corporation Immediately upon
     the completion of the organization         and new
     members nmy be admitted to membership In
     this Corporation under the terms and condi-
     tions of the By-laws.        Membership 1n this
     Corpomtloti shall be evidenced by certlf l-
     cate of membership which Shall be provided
     for In the By-Iaws.       Such certificate    of
     membership shall not be assignable         or trans-
     ferrable    except as provided lo the By-laws.
     We quote the following       from a letter   from the man-
ager of the “Hospital”.
           “Since the Inception of this organlza-
     tlon, our nrsjor effort   has been expended in
     tha construction   of 17-bed hospital   with
     Clinic facilities   including X-ray, Labora-
     tory, and doctors’~ offices.     To date the
     hospital  portion Is Incomplete, but the
     Clinic Is in operation.      The major portion
     of the patients treated here pay for ser-
     vices rendered; hovever, charity cases will
     be taketi care of.   The percentage of charity
     cases that we will be able to care for has
     not been determined.
             ‘As you my know, these cooperative
      hospital& were started ln answer to a very
      critical    need for medical facilities      in
      r’iral areas In Texas.      They are not the
      complete answer, but they have gone a long
      way toward providing facilities        and guar-
      anteed Incomes for properly qualified         pro-
      fessional     people lo our southwestern rural
      areas.     These professional    people are the
      first    requirements for good medical care at
      a price our rum1 people can afford to pay.
      Bach of these hospitals       expects to operate
      a prepsyment plan which will insure the
      cost of medical care In the locality         of the
      organlzat Ion.      This prepymsnt plan stab-
      llzes the incomes of doctors and prevents
      extremely high cost of c$tastrophlc        lll-
      nesses of the patients.
      Article  VIII, Section 2 of the Constitution   of the
 State of Texas has empovered the legislature    to exempt
 from taxation certain enumerated properties,    among which
H&. Lee Nowlin,     Page 3, V-299


are   ” . . . lnst ltut ions of purely public    charity”.   In
  ursmnce to this particular     constitutional    grant the
fs glslature  enacted Section 7 of Article      7150, R. C. S.,
which effect llates exemvtion to the extent of the exemD-
tlve powers conferred by Article      VIII, Section 2. Lltiie
!Pheatre of Callas Inc. v. City of tillas,       124 9. Wr)-
863; City of Wichita P&Us v. CooDer, 170 S. W. (2) 777,
error refused.
      Sect ion 7 of Article     7150 reads as follovs:

                “7.   Public charities.    - All buildings
       belonging to Institutions         of purely public
       charity,      together with the lands belonging
       to and occupied by such institutions          not
       leased or otherwise used with a view to pro-
       Sit, unless such rents and profits          and all
       moneys and credits are appropriated          by such
        lnstltitlons      solely to sustain such lnstltu-
       tlons and for the benefit         of the sick and dis-
       abled members and their families and the bur-
        ial of the same; or for the maintenance of
       persons vhen umble to provide for themselves,
       whether such persons are members of such ln-
       stlt utlons or not.       An lnstlt ution OS ptiely
       public. charity under this article         Is one which
       dispenses Its aid to its members and others
        la sickness or distress,        or at death, wlth-
       out regard to poverty or riches          of the reclp-
        lent, also vhen the Punds, property and as-
      -sets of such lns~tltutions are placed and
       bound by its laws to relieve,         aid and admln-
        Ister In any way to the relief        of Its mem-
       bers when In Want, sickness and distress,
       and provide homes for Its helpless and de-
       pendent members and to educate and mrlntaln
       the orw”ns        of Its deceased members or other
       persons.
       It is clear that under the above section an lnstl-
tutlon can gain exemption for its “buildings      , . . . to-
gether with the Lands belonging to gad occupied by such
last it ut ions ” on1 If It Is an “lnstltutlon    of purely
public cbrlty     4.   e are faced at the outset with Opln-
Ion O-6792 of this Department which holds that corpora-
tions drganleed under Section 2A of Article      1302 are
not Institutions     of “purely public charity” and are not
within the exemption from paymsnt of franchise      taxes
Mr. Lee Nowlln,    Page 4, V-299


which Article   7094 accords corporations    “organized .
. . for purely public charity”.     We will not reconsld&
that question since lt is not before us. We do not con-
sider that the opinion precludes the anomalous view that
the “8ospltal”   Is an ulnstltutlon   of purely public char-
ity” within the meaning of that phrase as used in Ar-
ticle VIII Section ,2 of the Constitution     and la Section
7 of Article   7150 for the reason that a different    ex-
empt Ion Is now being sought by vlrt ue of a different
statute.
     We are of the       opinion that the question YOUore-
sent is settled by       the decision   In Clty,of  Paiestine
v. Missouri Pacific       Lines Hospital Ass’n.,    99 9 W (2)
311, writ of error       refused.   ‘The court there heid &mt
the ~~Mlssourl Pacific      Lines Hospital Association    was
an “lnstltutlon   of     purely public charity” and exempt
from taxa t *on.
      The Missouri-PBclfic   Lines Hospital Association     1s
the name borne by the corporation     originally  chartered
in 1915 as the Internat,lonal-Great     Northern Railway Rm-
ployees I Hospital.    The second article   of the original
charter reads as follows:~,
             “Second.    The purpose for which this
      corporation     Is formed Is for the support of
      a benevolent and charitable       undertaking, la
      this:. to provide medical and surgical        treat-
      ment and care for the employees of the Inter-
      national and Great Northern Railway and all
      persons engaged la the operation of the same
      and Its properties,      whether or not in the
      hands of Receivers,       or however owned or oper-
      ated hereafter,     who may bs Injured or disabled
      by accident     or sickness while in such employ-
      ment, to such extent only, and under such
      rules and regulations       as nmy be prescribed
      frcnn time to time by the Trustees and to fur-
      nish such other and additional       privileges
      and benefits     to said employees as may from
      time to time be directed       by the Hoard of
      Trustees of this Association;       provided that
      such additional      benefits  and advantages shall
      not bs inconsistent       with nor interfere    with
      the nmln object of said Assoclatlon,         as here-
      before expressed,      and to that end purchase,
      erect and wmlntaln suitable bulldlngs:~for
      hospitals    or other purposes at suitable
Mr. Lee Nowlln,    Page 5, v-299


      po.lnt s along the line    of aald railway    a,nd
      its branches. ”
      The sixth article provided that “there shall be no
capital  stock of this corporation,   but the necessary
funds therefor  shall be raised in tnch nvinner as may be
provided for by the by-laws,    . . .
       It was urged in International        & G. N. Rs. Emp x
ees* IiosDltal Ass’n. v. Bell,        224 S W. 311, that’%
taln facts,    I. e., membership In thi assoclatlca        being,
a cotidltlon of employment with fees therefop withheld
from employees salaries,        showed that the hospltal’was     ,_,
not a benevolent and charitable         assoclatlon   but a mu-
tusl benefit,     health, and accident      insurance assoclac
tion.    The’~court   rejected   this contention and held, that
the Bospltal Association        vas “a mutual benefit assocla-
tlon”,   and  that   “Its  contracts   with its several members
cannot. be I’egarded or :construed as contracts        of lnsur-
ante .
       Since this decision was rendered (1920) and before
the decision     in the City OS Palestine case, supra, the
orlgloal    charter of the Internatlooal    and G-t    Rorthern
Railway Employees 1 Hospital Association      was amended.
The dotiporate clams was changed to Mlssourl Pacific      Lines
Hospital Assoclationtand     article   “Second” was amended’by
Inserting    the word noSflcersW before “and employees” and
the word ‘halntalnance”     before “opsratlon”,   and varlolie
minor changes In vordlng were mpde. In addition the I&-
ternatlom1     Great Horthern Rallrcad” was deplned for the
purpose of showing what officers      and employees vere en-
t Itled to the privileges    of the association,    and the fol-
loving proviso vas added:
            ‘Provided,    hovever, that the properties
     now owned by this Association        . . . having
     been accumulated by means of contributions
     nade by present and former employees of the
     InternatIons       Great Northern Railway Company
     and its predecessor       compXnles, the employees
     of that company and its successors,          IS any,
     fihall   be entltleg7     to a preferential    right
     of use of such propert lea . . . . ; and If
   ” and when the employees of other lines nay bs
     admitted to the privileges        and benefits    of
     this Association,       they shall be so admitted
      upon condition     that by enjoying such Prlvl-
     leges and benefits and paying therefor they
bir. Lee Howlin,   Page 6, V-299


     shall not acquire or. claim any property
     rights,   legal or equitable,   In or to the
     physical properties    or assets of this As-
     sociation   which shall not be completely
     terminated and obliterated     by a vlthdrawal
     of such privileges   and benefits   by the
     Board of Trustees of this Association.’
      Thus there had been no change in the corporate pur-
pose or the corporate method of operation from the time
of the Bell case, supra, which would ake the Aseocia-
tlon any less “an assobiation      for mutual benefit” or
any more an “lnstltutlon     of purely public charity”.      In
the City of Rilestine    case, supra, the court simply re-
cites the facts of incorporation       and operation vlthout
designating   the corporation   as ‘an association    for mu-
tm1 benefit “. The court there,fore does not spsclflc-
ally deal with the possible     effect   of the benefit in-
uring to the members of the association       as being des-
tructive   of the “charitable”   nature   of the association;
however, It disposes of the netter by implication         la
the f ollovlng paragraphs :
             “(4)   In Santa Rosa Infirmary v. City
     of San Antonio, supra, the court said: ‘While
     it Is stated in City of Houston v. Scottish
     Rite, etc.,     Ass’n, supra, that, ln order to
     maintain Its status as a purely charitable
     lnstltutlon,      an organlzatloa  clalmlng to be
     such, and asserting      an exemption from taxa-
     tion, mhst mske no private gala or corporate
     profit,     nothing more was Intended than that
     no private individual       should reap a profit,
     or vhere a corporation       was the owner that
     no distributable      earnlnGs In the shape of
     dividends must accrue. 1
           “(5)   In the case of Benevolent & P. 0.
     of E. Lodge v. Clt of Houston (Tex. Clv.
     App.) 44 9. W. (26 7 488, 493, In construing
     the expression    ‘purely public charity,’  the
     court said:    ‘The word ‘purely” Is intended
     to modify the vord “charity” and not the
     word *public, It so as to require the lnstltu-
     tlon $0 have a wholly altruistic    quality and
     exclu~de ‘from It every private or selfish   ia-
     terest or profit    or corporate gain l * * In
     law, the word ‘purely” Is used In the sense
    Mr. Lee Novlln,    Page 7, v-299


          of and equivalent    to “only, a “vholly, ”
          “exclusively,”    “co~~$ely,.’   uentlrely,”
          and ‘unquslifledly.
          These paragraphs and a qubtatlon from’ Clt of
    Houston v. Scottish Rite Benevolent Aas’n., TihX.
    191, 230 S W 978 981, to the effect           that “Charity
    need not bi &lver&l    to b@ public” likewise dlSpose,d
    of the contention that the limitation        of. the pr,lrmry
    purpose of the charity to a class,     i.e.;     lallrcad   em-~
    ployees and their families,  preve,tited the instltut,lon       ., :
.   from being one of “purely public charlty.~”                ’      .,
          It must be emphasized, however, that la polnt. of.
    fact the Mlssourl Pacific       Lines Hospital did do sOms
    charitable    work.   It Is true that “the rendition. of
    services   to non-members has always been lncld~ntal           to
    the nmln purposes of said dssoclatlon        . . ~.. .“; but
    the Hospital had at till times during the period for
    which taxes were sought given first aid td the members
    of the City of Palestine police and fire depart=nt
    and cared for the charity patients of the county.
     %egardless    of race, creed or Slnanclal condition          or
    any other ground of distinction,       tio~such
                                           --       case    @ssr-
    gencn7 ha& ever been turned sy         from salss        its1
               ~’(Bmphssls a8ded)-     The reasome    __f_
                                                         va ue of
    i&s; dli treatmsnts so rendered to the policemen and
    firemen and county charity pstlents would average ap-
    proxlxmtely $350 a year.        The aggregate amounts re-
    ceived . . . for the hospitalization        . . . of the Sore-
    going classes of patients not members of the assocla-
    tlon’were    vholly lnadequste to mplnta,ln ‘the hospital
    and other services      rendered, and such services      could
    not have been rendered except through the monthly as-
    sessments paid by Said Embers as aforesaid           . . . . ”
          The court no where considers    the value of these
    charitable  services   in relation to the value of ser-
    vices rendered to members of the as&clatlon.         It
    seems safe to say that then percents&      of charitable
    cases was smpll In colaparlson with-the number of ppy
    patients or members of the assocleQ9.n;      yet the exemp-
    tion was still   accorded the assoclatlon.
          The fact that the members of ihe &le,.County COOP-
    erative Hospital have voluntarily   assoclat+d   themselves
    together for the purposes of establishing     and mslntaia-
    lng a hospital  In no way militates  against an exemption
F-
2:=3
       Hr. Iae Nowlln,    Page 8, P-299


        OS the %oepltal”       property.     OS course, until such :tLme
       as charitable      cases are being treated there can be no
        exemption as it Is vell settled         that a msre prospective
        use for charitable      purposes Is not sufficient.     2 A.L.R.
        545. Likewise It is only by exclusive           use of the prop-
        erty that the charitable        orgbnl&atlon may gain exemp-
        tion from taxation.        It has been held that exemption
        was lost where a hosDlta1 rented offices          ln the hosDl-
        tal building to physicians        for use in their general-
        practice.    ,’City of Lonnvlew v. Eknrkbam- McRee Memorial
        &spit&l,      152 S. W. (2d) 1112. Moreover vhere a labor-
        atory technician      used a part of the hospital     laboratory      l

        in doing a small buslnese of his ovn the exemption was‘
        lost notwlthstandlnu       the fact that he mid no rent and
        that the hospital      dyd not share la his-prlkte      profits.
        MarkhamHospital v. City of Lonuvlew, et al,’ I91 S. W.
        12dl 695.. error refused.        These two cases involve use
        by a thtid uerson for private ~purposes and in no way
        c&Ullct     with .the holding ‘In &ti      Rbsa Inflmnsry v:
       ,Clty -of San Antonio, Comm. App., 259 5. W. 926 to the
        effect    that the fact that the major portion of’ths         rooms
        In a hospital are used by pay patients does not result :’
        In the loss of the exempt Ion accorded lnstltut Ions of
        purely public charity provided the other requisites            of
        exemption are met.
             Assuming, then, that the Bale County Cooperative
       Hospltal~‘can meet the threefold   requlremsnts of owner-          ”
       u     of the property, bonaflde charitable ‘purpose as.
       evidenced ba actual charitable    m,     and exclusive    use
       of the proper-the       charitable   instltut Ion Itself;-
       it Is the opinion of this Department that ,the build-
       lags bf the Hale County Cooperative Hospital and the
       grounds on which said buildings are located are exempt             ”
       from ad valorem taxes.
                                SUMMARY
                   The buildings  belonging to the Hale
             County Cooperative Hospital and the grounds
             on which said buildings are located are ex-
             empt f~rom ad valorem taxes IS said buildings            .
             and grounds are owned and exclusively    used by
             the Hale County Cooperative Hospital for a
             bona fide charitable   purpose as evidenced by
             actual charitable   work. Art. VIII, sec. 2 of
lb.   lee   Novlin,   Page 9, V-299


         the Texas Constitntlorr; Sec. 7, AI%, 7150,
         R. C. 5.; City 0s Palestine v. Hissouri
         Psclflc  LlneS Homltal A ss ' n.,  s. w.
         126) 311.
                                           Yours   very   truly,

                                      ATTORNHY
                                             GHRHRAL ~OF TEAS           ”
                         .



                                      BY
MC:mrj                                                     Assistsat




                                      iTTORNRYGHNRRU




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