Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE ATTORNEV GENERAL. STATE OF TEXAI
JOHN CORNYN
August 29,200O
The Honorable Robert Turner Opinion No. K-0275
Chair, Public Safety Committee
Texas House of Representatives Re: Adoption of a fire code by the Travis County
P.O. Box 2910 Emergency Services District No. 6 (RQ-0209-K)
Austin. Texas 78768-2910
Dear Representative Turner:
You state that the Travis County Emergency Services District No. 6 (“the ESD’) intends to
enact a fire code pursuant to section 775.036(b) of the Health and Safety Code. This provision
authorizes the board of an emergency services district to adopt and enforce a fire code “that does not
conflict with a tire code adopted by another political subdivision that also contains within its
boundaries any portion of the land contained in the district.” TEX. HEALTH & SAFETYCODE ANN.
4 775.036@)(Vemon Supp. 2000). You ask several questions relating to possible conflicts between
the ESD tire code and the fire codes of overlapping political subdivisions. We conclude that a fire
code adopted by the ESD must be free of conflict with codes adopted by municipalities located in
whole or in part in the territory of the ESD, even though the ESD may not enforce its tire code
within a municipality that has adopted a tire code. If the ESD adopts a tire code, and a city or county
later adopts or amends its tire code to be in conflict with the tire code adopted by the ESD, the
ESD’s fire code is rendered unenforceable to the extent of such conflicts. The ESD lacks authority
to regulate tire alarms and false alarms.
Chapter 775 ofthe Healthand Safety Code authorizes the organizationofemergency services
districts, as provided by article III, section 48-e ofthe Texas Constitution, to be governed by a board
ofemergency services commissioners. See id. $3 775.001, ,003 (Vernon 1992). The commissioners
court of a county in which a single-county district is located appoints the five-member board of
emergency services commissioners. See id. 5 775.034(a) (Vernon Supp. 2000); see also id. 5
775.035(a) (emergency services commissioners of a district located in more than one county are
elected). “Such a district may provide emergency medical services, emergency ambulance services,
rural tire prevention and control services, or other emergency services authorized by the
Legislature.” TEX. CONST. art. III, 5 48-e. A district need not, however, provide all the services it
is authorized to perform. See TEX. HEALTH & SAFETY CODE ANN. § 775.031(d) (Vernon Supp.
2000).
Your questions concern the limits on the ESD board’s authority under Health and Safety
Code section 775.036(b) to adopt fire code provisions. You first ask whether a tire code adopted
The Honorable Robert Turner - Page 2 (JC-0275)
by the ESD must be free of conflict with any and all codes adopted by municipalities located in
whole or in part in the territory of the ESD, even though the ESD may not enforce its own tire code
in such municipalities. See Request Letter at 1.’
Section 775.036(b) provides in part:
The board may adopt and enforce a tire code, including fines
for any violations, that does no! conflict with afire code adopted by
anotherpoliticalsubdivision that also contains within its boundaries
any portion of the land contained in the district and may require
inspections in the district relating to the causes and prevention of fires
and medical emergencies The board may not enforce the
district’s fire code within the boundaries of a municipality that has
adopted a tire code.
TEX. HEALTH & SAFETYCODE ANN. 5 775.036(b) (Vernon Supp. 2000) (emphasis added).
As a governmental entity, the ESD derives its powers from legislative enactments and is
subject to legislative control and supremacy. See Blessing v. City ofGalveston, 42 Tex. 641 (1874);
Texas Workers’ Compensation Comm’n. v. City of Bridge City, 900 S.W.2d 411, 413 (Tex.
App.-Austin 1995, writ denied). Section 775.036(b) authorizes the ESD to adopt only those
provisions not in conflict with those adopted by another political subdivision that contains within
its boundaries any of the land included in the district. Thus, its authority to adopt fire code
provisions is subordinate to the legislative authority on this subject exercised by overlapping
political subdivisions. In addition, any fire code provisions the ESD adopts must be consistent with
the constitution and statutes. See generally State v. Jackson, 376 S.W.2d 341,344-45 (Tex. 1964).
A city is a political subdivision of the state. See Texas Nat ‘1Guard Armory Bd. Y. McGraw,
126 S.W.2d 627,638 (Tex. 1939). According to the plain meaning of section 775.036(b), the ESD
may not adopt a code that conflicts with a code of an overlapping city. See TEX. GOV’T CODE ANN.
4 3 11 ,011 (a) (Vernon 1998) (words and phrases of statutes “shall be read in context and construed
according to the rules of grammar and common usage”). You suggest, however, that an ESD may
adopt fire code provisions that conflict with the fire code provisions ofan overlapping municipality.
You base this suggestion on the provision barring an ESD from enforcing its tire code within the
boundaries of a municipality that has adopted a fire code. Your construction in effect excludes a
municipality from the definition of “political subdivision.”
We do not construe the sentence in question as authorizing an ESD to adopt tire code
provisions in conflict with those of an overlapping municipality which the ESD could then enforce
right up to the municipality’s boundaries. The sentence refers only to the enforcement of tire code
‘LetterfmmHonorable RobenTumer, Texas State Representative, District 73, Chair, Public Safety Committee,
to Honorable John Comyn, Texas Attorney General (Mar. 23, 2000) (on tile with Opinion Committee).
The Honorable Robert Turner - Page 3 (JC-0275)
provisions within a city’s boundaries and does not expressly broaden an ESD’s power to adopt
conflicting tire code provisions. In our opinion, the restriction on an ESD enforcing its tire codes
within an overlapping municipality means that it may not enforce even those fire code provisions
that are consistent with the city’s fire code within the city’s boundaries. If the legislature wishes an
ESD to be able to adopt fire code provisions that are in conflict with the provisions ofmunicipal fire
codes, it may authorize ESDs to do so.
Whether a particular ESD fire code conflicts with a city tire code must be determined on a
case-by-case basis by comparing the provisions that appear to be in conflict. However, section
775.036(b) does not prevent an ESD from adopting code provisions that are cumulative of fire code
provisions of overlapping political subdivisions or otherwise in harmony with them. See III OXFORD
ENGLISHDICTIONARY713 (2d ed. 1989) (“conflict”means “to be at variance, be incompatible”); see
generally; Townsendv. Terre& 16 S.W.2d 1063,1064 (1929) (discussing inconsistency of statutes
for purposes of determining whether one statute impliedly repeals another); State v. International
& G.N.R.R. Co., 57 Tex. 534 (1882).
Your second question is as follows:
(2) Ifthe ESD adopts a tire code, and Travis County later adopts
a fire code that conflicts with the code adopted by the ESD, is the
ESD’s fire code thereby rendered invalid or unenforceable, whether
wholly or only to the extent of such conflict?
Request Letter, supra note 1, at 2.
Travis County includes within its boundaries the land within the Travis County Emergency
Services District No. 6, and, accordingly, the fire code adopted by the ESD may not conflict with
the Travis County Fire Code. Chapter 235 of the Local Government Code authorizes the
commissioners court of a county with a population of over 250,000 to adopt a fire code applicable
to certain kinds of buildings in the unincorporated area of the county. See TEX. LOC. GOV’T CODE
ANN. $5 235.001-,002 (Vernon 1999). The commissioners court ofTravis County may adopt a fire
code under this chapter. See 1 BUREAUOF THECENSUS,U.S. DEP’T OF COMMERCE,1990 CENSUS
OFPOPULATION: Genera1 Population Characteristics: Texas 4 (1992) (population ofTravis County:
576,407). Section 775.036(b) of the Health and Safety Code does not repeal or otherwise limit the
authority of a county to enact a tire code pursuant to Local Government Code chapter 235, nor does
it “grandfather” code provisions adopted by an ESD. If the ESD adopts a fire code, and Travis
County later adopts a fire code that conflicts with the ESD code, the ESD tire code may no longer
be enforced to the extent of any conflict with the Travis County code.
Your third question is as follows:
(3) If a municipality located in whole or in part in the territory of
the ESD adopts or amends its fire code to be in conflict with the fire
The Honorable Robert Turner - Page 4 (X-0275)
code adopted by the ESD, is the ESD’s tire code thereby render[ed]
invalid or unenforceable in whole or to the extent of such conflicts?
Request Letter, supra note 1, at 2.
Texas municipalities include Type A, Type B, and Type C general-law municipalities, home-
rule municipalities and special-law municipalities. See TEX. LOC. GOV’TCODE ANN. $5 5.001-.005
(Vernon 1999). Municipalities have authority to adopt and enforce ordinances providing for the
public health and safety, including tire safety ordinances. See, e.g., id. $3 51.001, ,012, ,032, ,051,
.052, .072; 54.012; 342.001-,003, ,012 (Vernon 1999); Town ofAscarute Y. Villalobos, 223 S.W.2d
945, 950 (Tex. 1949); Grothues v. City oftlelotes, 928 S.W.2d 725, 731 (Tex. App.-San Antonio
1996, no writ). A home-rule municipality may adopt ordinances that are not inconsistent with the
constitution, the general laws, or the city’s charter. See TEX. CONST. art. XI, 5 5; Proctor v.
Andrews, 972 S.W.2d 729,733 (Tex. 1998). Section 775.036(b) ofthe Health and Safety Code does
not repeal or otherwise limit a city’s statutory authority to adopt fire codes or the constitutional
authority of a home-rule city to adopt tire code provisions. If a municipality located in whole or in
part in the territory of the ESD adopts or amends its fire code to be in conflict with the tire code
adopted by the ESD, the ESD’s fire code is thereby rendered unenforceable to the extent of such
conflicts.
Your fourth question is as follows:
(4) May the ESD include [in] its tire code regulations of tire
alarms and false alarms that [are] either consistent with or in conflict
with the provisions of Tex. Lot. Government Code Chapter 237,
providing for county regulation [ofl alarm systems?
Request Letter, supra note 1, at 2.
In our opinion, the authority of an ESD to adopt a fire code does not include the authority
to regulate tire alarms and false alarms. A district has express authority under section 775.040 of
the Health and Safety Code to “charge a reasonable fee for emergency services including a fee
for responding to a false alarm.” TEX. HEALTH & SAFETY CODE ANN. 5 775.040 (Vernon Supp.
2000). The existence of this separate provision suggests that the authority under section 775.036(b)
to adopt a tire code does not authorize a district to regulate tire alarms. The Ianguage of section
775.036(b), providing that the board of an ESD may “adopt and enforce a tire code,” should be
contrasted with the detailed provisions of chapter 237 of the Local Government Code which
authorizes certain counties to regulate “alarm system[s],” including fire alarms. See TEX. LOC.
GOV’T CODE ANN. 5 237.001(2) (Vernon 1999) (defining “alarm system” to include various kinds
of devices used to prevent or detect burglary, theft, pilferage, tire or other loss ofproperty, to prevent
or detect intrusions, or to detect and summon aid for emergencies). Pursuant to chapter 237, the
commissioners court may authorize the sheriffto propose rules to implement chapter 237, to regulate
the incidence of and response to false alarms in accordance with those rules, and to establish permit
The Honorable Robert Turner - Page 5 (JC-0275)
procedures. See id. 5 237.002(a). In a county in which the sheriff regulates alarm systems under
chapter 237, a person may not use an alarm system without a permit issued in accordance with the
chapter. Seeid. § 237.003. The commissioners court has express authority to establish a reasonable
permit fee. See id. 5 237.004.
Under chapter 237, alarm systems are regulated through a permitting process, and the statute
expressly authorizes rule-making, the requirement of an alarm permit, and the collection of a fee for
using an alarm. The absence of such provisions in Health and Safety Code chapter 775 indicates that
the ESD lacks authority to regulate fire alarms and false alarms. Moreover, section 237.005 ofthe
Local Government Code provides that “[tlhis chapter does not affect the authority of a municipality
in the county to enact ordinances regulating alarm systems.” Id. $237.005. The express exclusion
ofmunicipal ordinances regulating alarm systems suggests that chapter 237 does limit the authority
of other political subdivisions to enact such ordinances. Accordingly, we conclude that the authority
of the Travis County Emergency Services District No. 6 to adopt a fire code does not impliedly
include the authority to regulate tire alarms and false alarms.
The Honorable Robert Turner - Page 6 (JC-0275)
SUMMARY
The board of an emergency services district organized
pursuant to chapter 775 of the Health and Safety Code may adopt a
fire code that does not conflict with a tire code adopted by another
political subdivision that contains within its boundaries any portion
of the land contained in the district. The tire code of an emergency
services district may not conflict with the code ofa municipality with
overlapping territory, even though the district may not enforce its fire
code in municipalities.
If the district adopts a tire code, and a city or county later
adopts or amends its fire code to be in conflict with the district’s fire
code, the district’s fire code is thereafter unenforceable to the extent
of such conflicts. An emergency services district lacks authority to
regulate tire alarms and false alarms.
Yo rs ve truly
4J-c
JOdN CORNYN
@Yr
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee