            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~


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