Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 8, 2017
Mr. Tony Sims Opinion No. KP-0162
Chambers County Auditor
404 Washington A venue Re: Whether a commissioners court may fund
Post Office Box 910 the county fire marshal and safety coordinator
Anahuac, Texas 77 514 position through revenue generated by a sales
and use tax imposed pursuant to chapter 324 of
the Tax Code (RQ-0152-KP)
Dear Mr. Sims:
You tell us that the Chambers County commissioners court wants to hire a full-time fire
marshal and safety coordinator "and fund 50% of the annual salary and benefits" for the position
from sales and use tax revenue generated under chapter 324 of the Tax Code. 1 You ask whether
the commissioners court may fund the position in this manner. 2 Request Letter at 1. Chapter 324
of the Tax Code authorizes certain counties to impose a sales and use tax for health services. 3 TEX.
TAX CODE§ 324.021. Section 324.081 limits the county's use ofrevenue generated from the tax:
Revenue from the tax imposed under this chapter may be used only
to provide health services in the county. The county imposing the
tax may allocate all or part of that revenue to:
(1) a county hospital authority or a hospital district having the
same boundaries as the county; or
(2) a public health district in which the county participates.
Id § 324.081.
1
Letter and Attachment from Mr. Tony Sims, Chambers Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Feb. 28, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opini6n-rqs ("Request Letter"
and "Attachment," respectively).
2
We understand you to refer to a "fire marshal and safety coordinator" as a single position with a title
denoting dual roles and not as two separate positions.
3
Chapter 324 applies to a county with a population of 50,000 or less. TEX. TAX CODE § 324.021 (a). The
population of Chambers County is 35,096. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 20 I 0 CENSUS OF
POPULATION: TEXAS QUICKFACTS, http://www.quickfacts.census.gov.
Mr. Tony Sims - Page 2 (KP-0162)
The Legislature did not define "health services" for purposes of chapter 324. When a
statute contains an undefined term, courts apply the common, ordinary meaning of the term unless
a contrary meaning is apparent from the language of the provision. Tex. State Bd. of Exam 'rs of
Marriage & Family Therapists v. Tex. Med Ass 'n, 511 S.W.3d. 28, 34 (Tex. 2017). To determine
a term's common, ordinary meaning, courts "typically look first to the dictionary definitions and
then consider the term's usage in other statutes, court decisions, and similar authorities." Id. at 35.
"Health" is "the condition of being sound in body, mind or spirit," especially "freedom from
physical disease or pain." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 574 (11th ed. 2004).
Section 324.081 itself identifies three potential recipients of all or part of the tax revenue: certain
county hospital authorities, hospital districts, and public health districts. TEX. TAX CODE
§ 324.081. That the Legislature specified these entities as authorized recipients of the tax revenue
suggests that it intended "health services" to relate to the functions these entities perform. Thus,
we consider the meaning of "health services" in light of the authority the Legislature gave these
entities.
A county hospital authority may "construct, purchase, enlarge, furnish, or equip," and
"operate and maintain" a hospital in the county. TEX. HEALTH & SAFETY CODE§ 264.022(a)-(b).
A county hospital district must "provide adequate hospital services" and may generally "promote
health in the district." Id §§ 282.049-.050. A public health district must provide at a minimum
all the public health services listed in subsection 121.006(d) of the Health & Safety Code. See id
§ 121.043(b); see also id § 121.006(d) (defining such public health services as personal health
promotion and maintenance, infectious disease control and prevention, environmental and
consumer health programs, public health education and information, laboratory services, and
administrative services). "When words of a general nature are used in connection with the
designation of particular objects or classes of persons or things, the meaning of the general words
will be restricted to the particular designation." R.R. Comm 'n of Tex. v. Tex. for a Safe Future &
Clean Water, 336 S.W.3d. 619, 629 (Tex. 2011) (quotation marks omitted). Here, the Legislature
identified a class of"health services" in section 324.081 that relate to the treatment and prevention
of physical pain and disease to members of the public. TEX. TAX CODE § 324.081. Taking into
account this treatment of the term "health services," we examine the responsibilities of the
Chambers County fire marshal and safety coordinator. ·
According to materials submitted with your request, the Chambers County fire marshal and
safety coordinator "conducts fire prevention and inspection activities" for the unincorporated areas
of the county, coordinates safety program activities, including "monthly safety training programs,
accident investigations, safety audits, and job site inspection," and assists emergency management
as needed. Attachment at 1. The majority of these duties correspond with the statutory duties of
the office of county fire marshal. See TEX. Loe. Gov'T CODE§§ 352.013(a) (requiring the county
fire marshal to "(1) investigate the cause, origin, and circumstances of fires . . . and (2) determine
whether a fire was the result of negligent or intentional conduct"), .016(b) (authorizing a county
fire marshal to inspect structures for life safety hazards in "the interest of safety and fire
prevention"); see also id § 352.01 l(a) (authorizing a county commissioners court to "establish the
office of county fire marshal and provide office facilities, equipment, transportation, assistants,
and professional services for that office").
Mr. Tony Sims - Page 3 (KP-0162)
The fire marshal and safety coordinator position provides services related mainly to fire
inspection, fire prevention, and safety. In contrast, section 324.081 limits the use of tax revenue
to the provision of health services in the county. See TEX. TAX CODE§ 324.081. While the duties
of the fire marshal and safety coordinator may contribute to the overall safety of the community,
which could result in fewer instances of injury for which a person might seek treatment, the general
statutory scheme of section 324.081 relates to services for the direct treatment and prevention of
physical pain and disease provided to members of the public. See id. Accordingly, a court would
likely conclude that the duties of the Chambers County fire marshal and safety coordinator are not
within the class of services contemplated by section 324.081, and the county thus may not use tax
revenues from the imposition of a county health services sales and use tax to fund the salary for
the position.
Mr. Tony Sims - Page 4 (KP-0162)
SUMMARY
A court would likely conclude that a commissioners court
may not fund the salary of a county fire marshal and safety
coordinator position through revenue generated by a sales and use
tax imposed pursuant to chapter 324 of the Tax Code.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee