Untitled Texas Attorney General Opinion ( 1986 )

December 30. 1986
Eonorable Terra1 R. Smith Opinion No. JM-605
Chairman
Criminal Jurisprudence Committee Re: Whether a rural fire pre-
Texas Rouse of Representatives vention district must continue
P. 0. Box 2910 to provide services to and
Austin, Texas 18169 888688 taxes against residents
of an area recently annexed by
a municipality
Dear Representative Smith:
You ask two questions about the status of an area of a rural fire
prevention districts annexed by a city. These questions, in reverse
order, are as follows:
1. What proce.dures are necessary to remove a
full-purpose municipal annexation area from the ‘*
tax rolls and obligations of a rural fire preven-
tion district created prior to September 1, 1985?
2. Must a rural fire prevention district
created prior to September 1, 1985, assess taxes,
provide direct services and be liable to residents
of a recently annexed area into an article 1269m,
V.T.C.S., civil service municipality which was
within the boundaries of the fire district prior
to full-purpose annexatioa of the area into the
municipality?
Article 2351a-6, V.T.C.S., provides for creating and governing
rural fire prevention districts. Set Tex. Coast. art. III, 148-d
(authorizing legislature to provide for establishment and creation of
rural fire prevention districts). A 1985 amendment to article
23510-6, V.T.C.S., added provisions dealing with the inclusion in a
rural fire prevention district of territory in the corporate or
extraterritorial jurisdiction of a city. The enactment of Senate Bill
No. 783 amended section 8A of article 2351a-6. V.T.C.S., and added
sections 8B and 14b to article 2351a-6, V.T.C.S. See Acts 1985, 69th
Leg., ch. 93, at 525. Section 8A now requires the zissioners court
to determine that the proposed district would provide certain public
benefits within any extraterritorial jurisdiction of a city that it
proposes to encompass. as well as any area within the city limits.
Section 8B. a new provision, provides that territory within a city or
p. 2702
Honorable Terra1 R;-Smith - Page 2 (m-605)
its extrateqitorial jurisdiction may not be.included in a rural fire
prevention district. unless the governing body of the city gives
written consent to the inclusion. V.T.C.S. art. 2351a-6, §8B(a). If
the governing body does not consent, voters and property owners of the
territory proposed for inclusion in -the district may petition the city
goverument to provide it; -with.. f-ire protection. Id. §8B(b). The
failure.or,refusal of the governmental body to provide fire protection
constitutes consent to inclusion of the area in the proposed district.
Id.
- 588(c).
Section 14b is a new section which provides as follows:
_ .~. See: 14b. (a) The governing body of a city
.‘: that has an area .within its corporate or extra-
territorial jurisdiction included within a rural
fire prevention district may, on agreeing to
provide fire protection to the srea as provided by
Section 8B of this Act . . . notify the secretary
of the board of fire commissioners in writing that
the area is excluded _ f ram the district’s
:territory.
- .~
(b) On receipt of the notice under Subsection
(a) of this section, the board shall cease to
provide further service to the area, exclude the
axes by-order from the district, and .redefine the
district~s boundaries.
The bill analysis of Senate Bill No. 783 states of section 14b:
This section provides that if .a~city has territory
within a district and the city agrees to provide
fire protection to the territory . . . the
governing body shall notify the secretary of ‘the
board of fire cowsissioners in writing of this
change. On receipt of this notice, the board
shall cease to provide service.
Bill Analysis to S.B. No. 783. prepared for Aouse Committee on Urban
Affairs, filed in Bill File to S.B. No. 783, Legislative Reference
Library.
In Attorney General Opinion JM-453 (1986) this office determined
that section 14b applies to the removal of territory from rural fire
prevention districts created before September 1, 1985. See Attorney
General Opinion JX-453 (1986). See also Attorney Genex Opinion
.I&591 (1986). Attorney General Opinion JM-453 (1986) also considered
how the removal of territory from arural fire-~ prwentio=.district
would affect .its tax* rolls and obl~igations. The opinion noted that
except for the issuance of bonds and notes, the district could
contract only that indebtedness payable out of excess funds on hand or
current revenues. for the year. Thus, the obligations at issue were
p. 2703
Eonorabls Terra1 R. S&h - Page 3 (JM-605)**
obligations to bondholders, ObligatiOnS protectid by the contract
clauses of both the federal and Texas Constitutions. See U.S. Const.
art. 1, 510, cl. 1; Tex. Const. art. I, 516; Attorney Feral Opinion
JM-453 (1986) and authorities cited therein. Legislation which
removes the source of repayment tu -bondholders without substituting
something of equal efficacy way impaik the obligation of contract and
violate the coustitution. - City of- Aransas Pass v. Keeling. 247 S.W.
818, 821 (Tex. 1923); Burns v. Dilley Couoty Line Independent School
District, 295 S.W. 1091, 1094 judgment adopted (Tex. Cosm’n App.
1927); Attorney General Opinions J’M-453 (1986); O-1205 (1939).
Attorney General Opinion JU-453 concluded that an area removed
from a rural fire district would still be required,to pay its pro rata
share of such obligstions existing when the territory is’withdrawn
from the district. It stated as follows:
Article 2351a-6 contains no express provision for
payment of the excluded territory’s pro rata share
of an existing district indebtedness. Cf. Water
Code 5553.268, 54.731 -(on payment of pro rata
share of existing district indebtedness. excluded
territory and its taxpayars are released from
liability to the district and payment of taxes).
It is our opinion that article 2351a-6, as
recently. amended to authorize the exclusion of a
city from a district, is not facially unconstitu-
tioual . In particular situations where the
obligation of contract to bondholders would be
impaired, the statute may be unconstitutionsl as
applied without the col2ectiou of taxes from the
excluded area to pay its pro rata share of obliga-
tions to bondholders that are in existence at the
time the city is withdrawn from the district. See
Attorney General Opinion MW-337 (1981). -
Attorney General Opinion.JM-453 (1986) at 4.
The quoted holding of Attorney General Opinion JM-453 is
applicable where the territory detached from the rural fire prevention
district constitutes less than the entire city. Thus, Attorney
General Opinion JM-453 provides the answer to your first question.
See, e.g., art. 2351a-6, 1119-22.
:
Our answer to question one also provides a partial answer to
question two, which asks as follows:
.
Must a rural fire prevention district created
prior to September 1, 1985, assess taxes, provide
direct services -and be liable to residents of a
recently annexed area into a 1269m. V.T.C.S.,
civil service municipality which was within the
p. 2704
Eonoxable Terra1 k.. Smith - Page 4 (JKA605k
boundar,ies .of tlae fire distric’t prtot.. to full-
purpose-‘annexation of the area into the rmmici-
palsty?
ken if -thedfty government. . rexovu the recently annexed _ area
-. .
frox the. rura&; fire preVentSor&. dlst+ct, its pro 3ata share of the
disirict!‘a .oblfgatj.ons mm.+ ,be firlfilled. After rewvxl, however, the
board of fiir’~qommlda~ionerx of tie. ‘district “shall cesse to provide
fyrther service ,to t&area. ~. . .” V.T.C.S. art. 2351a-6, S14b.
.
...
In tie ‘event that...the city does’ not r-e. ,the recently annexed
area from .the.firc’diatrict,.,that area ViU continue to be,part of the
dia,trfcF~:,. Article ,, ‘1269ia,.: ,V.T.C.S., eatablfshea a firemen’s and
polickken’~~ civil senrice in cities irlthin the statutory description,
;-~.but it doas not deal with the firefighting responsibilitfea of those
cities. ‘Tbe.diatrict~wlll continue to have tha same powers and duties
tow&d thenresidents of the annaxed area axe it had prior to the annex-
ation. A city, with;fta broad statutory police powers, may overlap in
terrkory .eth a special purpoae:.municipu~ entity, such as a rural
fire’ proteciion district. City of Pelly v..Earria County Water Control
6 lmprovwent District No. 7, 198 S.U.2d 450 (Tex. 1946); Attorney
General Opinioa J&400 (1985).
‘-~ B C.M M A. R Y -
When .a mini~ipality- annexes territory within a
rural fire :preventlon district crested prior to
.’ Skptembsr .l; 1985, the territory remains part of
then district- unless the city removes it .from the
diptrict , pursuant to section 14b of ‘article
2351ak6, V;TIC.S. men a samicipality removes an
annexed iafea:from the district. the district is to
cease providing services to that &ea.
AttorneyGenera.l of Tbxas
JACg HIGDTO!&
First Aaaiataat .Attorney General
MARYKEUER -
txecutive Aassistant Atiomey Genera1
RICK GILPIlo
Chsirman. Opinion‘ Cmsnittee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2705