Case Information
*1 The Attorney General of Texas March 15, 1984
JIM MATTOX
Attorney General P. 0. Box 12548
Supreme 512/475-2501 Austin, Telecopier Telex 9101874-1367 TX. 78711. Court Building 5121475.0266 [2548] Austin, Texas 78711 Ms. Rita Howitz State Pen&o" Review Board Executive Director P. 0. Box 13498 authority Re: Whether a hospital Opinion No. JM-137 must Pension Review Board register State with the
Dear Ms. Howitz: 714 Jackson, Suite 700 Dallas, TX. 75202-4506 Chapter 12 of title 1lOB. V.T.C.S., imposes various requirements 2141742-8944 on "public retirement systems." Section 12.001(2) of title 1lOB
defines such a system as: 4824 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 co"ti"ui"g. organized program of service 9151533-3484 retirement. disability retirement, or death benefits for officers or employees of the state z .fl a political subdivision, other than a program JO1 Texas, Suite 700 providing only workers' compensation benefits, a Houston, TX. 77002~3111 program administered by the federal government, 7131223.5888 Of . . . . (Emphasis added).
806 Broadway. Suite 312 You have asked whether the Richardson Hospital Authority is a . Lubbock, TX. 79401-3479 "political subdivision" within the meaning of this provision. 806,747.5238 Section 3 of article 4494r. V.T.C.S., authorizes counties to 4309 N. Tenth. Suite B create county hospital authorities, and it expressly provides that McAllen, TX. 78501.1685 such authorities are "political subdivision[sl of this State." On the 5121882-4547 other hand, section 3 of article 4437e, V.T.C.S., which authorizes cities to create city hospital authorities, such as the Richardson 200 Main Plaza. Suite 400 Hospital Authority, does not provide that such authorities are San Antonio, TX. 78205.2797 political subdivisions. We must determine whether the failure of this 5121226-4191 latter provision to so provide means that the legislature did not
intend for city hospital authorities to be classified as political subdivisions, or whether the omission of the words An Equal Opportunity/ "political Affirmative Action Employw subdivision of this State," which appear in section 3 of article
4494r, was a mere oversight on the legislature's part. Bole" V. Board of Firemen, Policemen and Fire Alarm Operators' Trustees of San Antonio, 308 S.W.2d 904 (Tex. Civ. App. - San Antonio 1957, writ ref'd), sets forth the criteria that are generally used in determining whether a" entity is a "political subdivision." There, r the court stated: *2 Ms. Rita Horwitz - Page 2 (m-137)
A political subdivision contemplates: geographical ares and boundaries, public elections, public officials, taxing power and a general public purpose or benefit.
Id. at 905. The second of these criteria was recently modified sub xentio by the Texas Supreme Court. In Guaranty Petrol= Corporation v. Armstrong, 609 S.W.2d 529, 531 (Tex. 1980). the court, distinguishing between a "political subdivision" and "a department, board or agency of the State," stated that
[mlembers of the governing body of a pollti~cal subdivision are elected in local elections or are appointed by locally elected officials. (Emphasis added).
County hospital authorities clearly meet at least four of these five criteria. They have geographical area and boundaries. V.T.C.S. art. 4494r, 63. Members of their boards of directors are appointed by the governing bodies of the counties that created them. Id. 04. Said members are unquestionably "public officials." Finxy, county hospital authorities certainly promote "a general public purpose or benefit." County hospital authorities do not, however, have taxing power; instead, they have bonding authority. Id. 97 et seq. Notwithstanding the fact that county hospital authorities do not technically meet all five of the Bole" and Guaranty "political subdivision" criteria, however, such authorities clearly are political subdivisions, because section 3 of article 4494r declares that they are.
Like a county hospital authority, city hospital authority has geographical area and boundaries, article 4437e. section 3, V.T.C.S., and a board of directors appointed by the city that created it. Id. 64. These directors are certainly "public officials," and the authority promotes "a general public purpose or benefit." Like county hospital authorities, moreover, city hospital authorities have bonding rather than taxing power. Id. P7 et seq. As noted, however, city hospital authorities are not expressly designated as "political subdivisions."
In our opinion, however, city hospital authorities should be deemed "political subdivisions" within the meaning of section 12.001 of title 1lOB. Only in a very literal sense do such authorities fail to meet the "taxing power" criterion of Bole" and Guaranty; one could reasonably argue, moreover, that this criterion is technically met, since bonding authority could be deemed an adequate substitute for taxing power, at least for purposes of this criterion. Even if this criterion is not precisely met, however, to conclude that city hospital authorities are for this reason not political subdivisions *3 ,
Ms. Rita Horwitz - Page 3 (JM-137)
is, in our view, to give entirely too much weight to what is at best a flimsy distinction.
Even more compelling is the fact that county and city hospital authorities meet the Bole" and Guaranty "political subdivision" criteria to precisely the same extent. Given this fact and the fact that county and city authorities are otherwise so similar, we can perceive no logical reason why the legislature would have wanted to include the former within the ambit of the term "political subdivision" but exclude the latter. We do not believe it would have intended to subject only the former to the requirements of chapter 12 of title 1lOB.
Section 3 of article 4437e was enacted in 1957. Acts 1957, 55th Leg., ch. 472 at 1379. Section 3 of article 4494r was enacted in 1963. Acts 1963, 58th Leg., ch. 122 at 324. One reason why only the latter mentions "political subdivisions" might be that when the legislature enacted this provision, it simply neglected to amend article 4437e. If section 3 of article 4437e had been enacted after 3 of article 4494r, we believe the omission of any reference section to "political subdivision" would be far more meaningful. Since the reverse occurred, however, we believe it is more likely that when it enacted article 4494r, the legislature simply was not concerned with /4 article 4437e and therefore paid no attention to it.
For the foregoing reasons, we conclude that the Richardson Hospital Authority is a "political subdivision" within the meaning of section 12.001 of title 1lOB.
SUMMARY The Richardson Hospital Authority is a "political subdivision" within the meaning of section 12.001 of title llOB, V.T.C.S.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General I
Ha. Rita Horwitz - Page 4 (JM-137)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Patricia Ajnojosa
Jim Noellinger
Nancy Sutton