May ad valorem taxes levied for the Cleburne County Hospital Board pay for emergency care and ambulance transport for county jail inmates?

Plain-English summary

The Alabama Attorney General concluded that Cleburne County may use surplus hospital millage-tax revenue to pay for county jail inmates' emergency medical care and ambulance transport. The tax was approved under Amendment 72 for public hospital purposes, and the opinion reads later constitutional and statutory provisions as permitting those funds to cover emergency care for indigent county residents.

The answer has two limits. First, the money must be surplus revenue that the Cleburne County Hospital Board has not already pledged for bonds or other debt. Second, the opinion distinguishes acute emergency care from continuing treatment for chronic disease. It treats emergency care and transport as allowable, but says Amendment 72 proceeds cannot pay for ongoing chronic-disease treatment.

The opinion also corrects part of the AG's earlier analysis. A 2011 opinion had said legislative action was still needed before Amendment 72 funds could pay for indigent care. Opinion 2026-037 concludes that Amendment 125 and section 22-21-223 already supplied that authority, even though the original statewide indigent-care program is no longer operating.

What this means for you

Cleburne County commissioners and public-finance officials

The opinion treats surplus Amendment 72 revenue as an available source for emergency indigent care and ambulance transport, including services for county jail inmates. It does not permit the county to divert money that the Hospital Board has already committed to bonds or other debt.

The Cleburne County Hospital Board and emergency medical services

The Board may use Amendment 72 proceeds for ambulance services and emergency medical care within the limits described by the opinion. The closure of the county hospital did not end the Board's role because it continued to provide county medical services through emergency medical services and the county nursing home.

County jail administrators

The opinion places emergency care and transport for jail inmates within the county's permitted use of surplus hospital-tax funds. Its reasoning is limited to emergency, acute care. It does not approve using those proceeds for continuing treatment of chronic conditions.

County attorneys and auditors

The opinion says Amendment 125 and section 22-21-223 authorize the use of qualifying hospital-tax proceeds for indigent care. It also modifies six earlier AG opinions to the extent they conflict with that conclusion, including the 2011 Smithart opinion that prompted the Hospital Board's concern.

Common questions

Q: Can Cleburne County use hospital millage taxes to pay an inmate's ambulance bill?
A: Yes, according to this opinion. Surplus Amendment 72 funds may pay for emergency transport and emergency indigent care, including services for county jail inmates, if the funds are not already pledged for Hospital Board debt.

Q: Can the county use all Amendment 72 revenue for inmate medical costs?
A: No. The opinion only approves surplus funds that are not already obligated for bonds or other debt, and it limits the approved use to emergency care rather than continuing chronic-disease treatment.

Q: Does it matter that the Cleburne County Hospital closed?
A: The opinion says no for this issue. It notes that the Hospital Board continued providing medical services through Cleburne County Emergency Medical Services and the Cleburne County Nursing Home after the hospital closed.

Q: Why did the AG disagree with the earlier Smithart opinion?
A: Opinion 2026-037 says the earlier analysis overlooked the combined effect of Amendment 125 and section 22-21-223. Those provisions authorized qualifying public-hospital tax proceeds to be used for indigent care, even though the original Indigent Program later stopped operating.

Q: May these funds pay for ongoing treatment of a chronic illness?
A: No. The opinion distinguishes emergency care from continuing treatment for chronic disease and says Amendment 72 proceeds cannot fund the latter.

Background and statutory framework

Amendment 72 permits a county, with voter approval, to levy a special property tax for public hospitals and related public health facilities. Cleburne County's Hospital Board was organized under that authority and under the statutes governing hospital corporations. Although the county hospital closed in 1990, the Board continued operating emergency medical services and a nursing home.

The legal question arose because a 1957 Alabama Supreme Court advisory opinion read Amendment 72 itself as excluding indigent hospital care. During the same legislative session, however, the Legislature proposed what became Amendment 125 and enacted the statutes creating the Hospital Service Program for Indigents. Amendment 125 authorized the Legislature to permit public-hospital tax revenue to pay for indigent care, and section 22-21-223 authorized county commissions to appropriate qualifying tax proceeds for that statutory program.

The Indigent Program's advisory committee was later eliminated, but Opinion 2026-037 reads the remaining provisions as severable and still effective. It also points to sections 22-21-290 and 22-21-291, under which the county bears financial responsibility for qualifying indigent residents' medical treatment. On that basis, the AG concluded that a county may use unpledged Amendment 72 proceeds for emergency indigent care.

Citations and references

Constitutional and statutory provisions:

• ALA. CONST. art. XI, § 215.02 (amend. 72)
• ALA. CONST., art XI, § 215.04 (amend. 125)
• ALA. CODE § 22-21-223 (2015)
• ALA. CODE § 22-21-211 (2015)
• ALA. CODE §§ 22-21-210(5), 22-21-290, 22-21-291 (2015)

Cases:

• Opinion of the Justices, 95 So. 2d 923 (Ala. 1957)
• Ex parte Southern Railway Co., 556 So. 2d 1082 (Ala. 1989)
• In re Jefferson County, Alabama, 484 B.R. 427 (Bankr. N.D. Ala. 2012)

Source

• Landing page: https://www.alabamaag.gov/opinions-links/
• Original PDF: https://alootheattorneygeal.contentmanager.tylerapp.com/ecmcitizenaccess/publicAccess/Converted-Config/DOC156S1

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

2026-037

OFFICE OF THE ATTORNEY GENERAL

STEVE MARSHALL 501 WASHINGTON AVENUE

P.O. BOX 300152
ATTORNEY GENERAL
MONTGOMERY, AL 36130-0152

(334) 242-7300
ALABAMAAG.GOV

July 10, 2026

Honorable Jason C. Odom
County Attorney

Cleburne County Commission
110 E. 15th Street

Anniston, Alabama 36201

Ad Valorem — Inmates — County
Commissioners — Ambulance Service
— Cleburne County

Surplus millage tax funds may be
used to pay for emergency indigent
care and emergency transport when
those funds are levied under Section
215.02 of article XI of the
Recompiled Constitution of
Alabama, as amended (“Amendment
72”) for public hospital purposes.

Dear Mr. Odom:

This opinion of the Attorney General is issued in response to your
request on behalf of the Cleburne County Commission (“Commission”).

QUESTION

May ad valorem taxes, levied and collected
for the benefit of the Cleburne County Hospital
Board (“Board”), be used to provide emergency
care and emergency transport of the Cleburne
County Jail inmates?

Honorable Jason C. Odom
Page 2

FACTS AND ANALYSIS

Amendment 72 allows counties in the state to levy a tax to fund
public hospitals and health facilities that provide medical services to its
residents. ALA. CONST. art. XI, § 215.02 (amend. 72). The Board was
organized under Amendment 72 and section 22-21-70, et seq., of the Code
of Alabama, as amended. Although the Cleburne County Hospital closed
in 1990, the Board continues to provide medical services to county
residents through the operation of the Cleburne County Emergency
Medical Services and the Cleburne County Nursing Home. Opinion to
Honorable Betty Gaither, Hospital Board Chairperson, Cleburne County,
dated June 13, 1995, A.G. No. 1995-0234; Opinion to Honorable Steve
Swafford, County Executive Officer, Cleburne County Commission, dated
Mar. 13, 2008, A.G. No. 2008-057. Because “ambulance service is an
absolute necessity to provide emergency services to the citizens of
Cleburne County and to transport patients to adjoining counties for
hospitalization if necessary,” the Board can use the Amendment 72 tax
proceeds to contract with a nonprofit to provide ambulance services or to
purchase an ambulance to use for emergency services. Gaither at 1.

In your request, you note that the director of the Board believes that
the Amendment 72 tax proceeds cannot be used for ambulance services for
inmates because this Office previously opined that legislative action is
required to enable use of Amendment 72 tax proceeds for indigent care.
See Opinion to Honorable Elizabeth C. Smithart, Attorney, Bullock
County Hospital Board, dated Jan. 12, 2011, A.G. No. 2011-028. In
considering your question, this Office has reviewed the Smithart opinion
and other opinions that discuss the use of Amendment 72 tax proceeds and
indigent care.

Amendment 72 allows Cleburne County, after approval by the
voters of the county, to:

levy and collect, in addition to all other taxes
authorized by law, a special county tax, not
exceeding four mills on each dollar of taxable
property in the county to be used solely for
acquiring, by purchase, lease, or otherwise,
constructing, operating, equipping, or
maintaining county hospitals, or other public
hospitals, non-profit hospitals and public health
facilities.

Honorable Jason C. Odom
Page 3

ALA. CONST. art. XI, § 215.02 (amend. 72). On June 12, 1957, the
Supreme Court of Alabama interpreted Amendment 72 to exclude use of
such funds for the purpose of providing hospital care and treatment of
indigent patients. Op. of the Justs., 95 So. 2d 923 (Ala. 1957). There, the
Court was specifically asked to review section 8 of House Bill 204 (“H.B.
204”), which, when passed, would allow taxes levied for public hospital
purposes, like Amendment 72, to pay for indigent care. Jd. at 293. The
Court determined the bill lacked constitutional authority to enable use of
Amendment 72 tax proceeds for indigent care. Jd. at 294-6. The Court,
however, did not consider House Bill 203, a companion bill to H.B. 204,
that proposed a constitutional amendment to allow the use of special taxes
for public hospitals for indigent care. ALA. H. JOURNAL, Reg. Sess., p.
125 (1957). H.B. 204 was enacted on September 4, 1957, and is now
codified at sections 22-21-210 through 22-21-227 of the Code. 1957 Ala.
Acts No. 1957-394; ALA. CODE §§ 22-21-210 to 227 (2015). The
proposed amendment was ratified the same year. 1957 Ala. Acts No.
1957-524.

The ratified constitutional amendment is section 215.04 of article
XI of the Recompiled Constitution of Alabama, as amended, (“Amendment
125”), which provides the following:

The legislature may authorize the use of any
portion of the proceeds of any special county tax
levied for the purpose of acquiring,
constructing, equipping, operating, and
maintaining public hospitals, public clinics,
public health centers, and related public health
facilities of any kind, or for any one or more of
the purposes included within the meaning of the
term “public hospital purposes,” for the purpose
of providing hospital care and treatment for
indigent residents of the county, or for the
purpose of matching any state or federal funds
made available for use in providing hospital care
and treatment for indigent residents of the
county, any provision of the Constitution to the
contrary notwithstanding.

ALA. CoNST., art XI, § 215.04 (amend. 125) (emphasis added).

Sections 22-21-210 through 227 of the Code created a program for
hospital care and treatment of indigent residents known as the Hospital

Honorable Jason C. Odom
Page 4

Service Program for Indigents (“Indigent Program”). ALA. CODE §§ 22-
21-210 to 227 (2015). The Legislature, as required by Amendment 125,
authorized the use of special county taxes for public hospitals to be used
for hospital care and treatment of indigent residents to pay for the
Indigent Program. ALA. CODE § 22-21-223 (2015). Section 22-21-223 of
the Code states:

In any county in which a special county tax is
levied and collected, pursuant to the provisions
of any amendment to the Constitution heretofore
adopted, for the purpose of acquiring,
constructing, equipping, operating, and
maintaining public hospitals . .. the county
commission of the county is hereby authorized
to appropriate so much of the proceeds of such
tax as may be necessary for the purpose of
carrying out the provisions of this article.

ALA. CODE § 22-21-223 (2015) (emphasis added).

The general rule is that a constitutional amendment cannot cure an
enactment prior to the ratification of the amendment. Ex parte S. Ry. Co.,

556 So. 2d 1082, 1089 (Ala. 1989). The Supreme Court of Alabama,
however, has articulated an exception:

Where a statute is enacted in anticipation of a
constitutional amendment offered simultaneously
with it, and the statute and the proposed
amendment are debated and considered together
in the same session of the legislature, the
subsequent adoption of the amendment by a vote
of the people will serve to validate the statute.

Id. at 1090. Amendment 125 and section 22-21-223 of the Code fit
exactly this exception.

This Office has previously held that Amendment 72 tax proceeds
may be used for indigent care. Opinion to Honorable Hobson Manasco,
Jr., Attorney, Winston County, dated Aug. 6, 1984, A.G. No. 1984-0389;
Opinion to Honorable Morgan Reynolds, Secretary, Chilton County
Hospital Board, dated Jan. 9, 1986, A.G. No. 1986-0111; Opinion to
Honorable Sid Holcomb, President, DeKalb County Commission, dated
May 20, 1987, A.G. No. 1987-0178. Amendment 125 and section 22-21-

Honorable Jason C. Odom
Page 5

223 of the Code, however, both place restraints on the use of Amendment
72 tax proceeds for indigent resident health care costs: (1) the money
must not already be pledged by the hospital board and (2) the money must
not be used to pay for treatment for continuing conditions. ALA. CONST.,
art. XI, § 215.04 (amend. 125); ALA. CODE § 22-21-211 (2015) (noting
that this article “is not intended ... to provide purely domiciliary care for
persons with permanently disabling diseases or illnesses or with chronic
diseases or illnesses” because such costs should be covered by federal
programs).

The Indigent Program is no longer in operation. Section 22-21-213
of the Code, which established the advisory committee to administer the
Indigent Program, was repealed in 1978 under a sunset law that
terminated the Department of Health. 1978 Ala. Acts No. 1978-34; 1976
Ala. Acts No. 1976-512; see also Mansaco at 3 (recognizing that the
Indigent Program was no longer in operation and reading Section 22-21-
223 in pari materia with sections 22-21-290 through 297 of the Code).
However, the legislative act that eliminated the advisory board did not
remove the county commission’s authority to access Amendment 72 tax
proceeds to provide emergency health care for indigent residents. 1978
Ala. Acts No. 1978-34.

Section 22-21-223 of the Code allows the county commission to use
Amendment 72 tax proceeds “as may be necessary for the purpose of
carrying out the provisions of this article.” ALA. CODE § 22-21-223
(2015). Although the Indigent Program is no longer in operation, other
provisions of the article remain and were made severable by the original
enabling act. Ala. Acts No. 1957-394, §19. Specifically, this article still
describes that the purpose of the article is as follows:

that the [Indigent Program] provided for in this
article shall be a program designed and
administered so as to provide hospitalization for
those residents of the State of Alabama who are
ill or injured and who can be helped markedly
by treatment in a hospital, but who are clearly
unable to meet the cost of such hospitalization
from their own resources or from the resources of
those upon whom they are legally dependent.

ALA. CODE § 22-21-211 (2015) (emphasis added). The county has an
obligation to pay for indigent healthcare regardless of its ability to opt
into the Indigent Program through the Alabama Health Care

Honorable Jason C. Odom
Page 6

Responsibility Act (“AHCRA”). ALA. CODE §§ 22-21-210(5), 22-21-290,
22-21-291 (2015); Manasco at 3; In re Jefferson Cnty., Ala., 484 B.R.
427, 441 (Bankr. N.D. Ala. 2012) (recognizing that “the ultimate financial
obligation for the medical treatment of indigents [is] on the county in
which the indigent resides” under the AHCRA). Because the article still
has provisions that remain effective despite the discontinuation of the
Indigent Program and because the county is obligated to pay for indigent
healthcare through the AHCRA, it may use Amendment 72 tax proceeds
consistent with the purpose of the Indigent Program “to provide
hospitalization for [its indigent] residents . . . who are ill or injured and
who can be helped markedly by treatment in a hospital.” ALA. CODE § 22-
21-211 (2015); Manasco at 3. Accordingly, a county may use Amendment
72 tax proceeds for emergency indigent care so long as those funds are
not already obligated by the hospital board to pay for bonds or other debt.

The Smithart opinion incorrectly determined that Amendment 72
proceeds could not be used for indigent care. The result, however, was
correct because the type of care discussed in Smithart was not for acute
emergency care but, rather, for treating chronic disease, and Amendment
72 tax proceeds cannot be used for ongoing treatment for a chronic
disease. The following opinions are modified to the extent that they are
inconsistent with this opinion:

e Opinion to Honorable John Tinney, County Attorney, Randolph
County Commission, dated July 24, 2020, A.G. No. 2020-044;

e Opinion to Honorable Mark Bain, Attorney, Elmore County Health
Care Authority, dated Nov. 20, 2014, A.G. No. 2015-016;

e Opinion to Honorable Elizabeth C. Smithart, Attorney, Bullock
County Hospital Board, dated Jan. 12, 2011, A.G. No. 2011-028;

e Opinion to Honorable DuWayne Bridges, Member, House of
Representatives, dated Jan. 12, 2011, A.G. No. 2011-027;

e Opinion to Honorable H. Dean Buttram Jr., Attorney, Cherokee
County Health Authority, dated July 11, 2006, A.G. No. 2006-120;

e Opinion to Honorable Sidney Johnston, County Commission
Chairman, Limestone County, dated Oct. 31, 1983, A.G. No. 1984-
0041.

Honorable Jason C. Odom
Page 7

CONCLUSION

Surplus millage tax funds may be used to pay for emergency
indigent care and emergency transport when those funds are levied under
Amendment 72 for public hospital purposes.

I hope this opinion answers your question. If this Office can be of
further assistance, please contact Christina A. Coan of my staff.

Sincerely,

STEVE MARSHALL
Attorney General
By:

Le F——

RYAN W. SHAW
Chief, Opinions Division

SM/CAC/Ibh
3888447/254802