Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Donald R. Ross Opinion No. Mw-580
Supreme Court Building
P. 0. BOX 12546
Rusk County Attorney
Austin, TX. 76711.2546 Rusk County Courthouse Re: Annexation power of rural
512/475-2501 Henderson, Texas 75652 fire prevention district
Telex 9101674.1367
Telecopier 51214750266 Dear Mr. Ross:
1607 Main St., Suite 1400 You have asked whether a Rural Fire Prevention District located
Dallas, TX. 75201.4709 wholly within one county may annex territory that does not lie within
2141742-6944 the same county. Sl2e Tl?X. Const. art. III, §48-d. In connection
therewith you advise:
4624 Alberta Ave.. Suite 160
El Paso, TX. 799052793 The specific context in which these questions
9151533.3464 have arisen is as follows: First, an attempt was
made to create a Multi-county district (a district
containing territory in two counties) pursuant to
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6966
sec. 2(a) of [article 2351a-6, V.T.C.S.] and when
7131650-0666 the proponents of said district were denied their
petition by the Commissioners Court in one of the
two counties (see sections 5 & 6 of said article),
606 Broadway. Suite 312
instead of appealing that decision to the District
Lubbock, TX. 79401-3479
@x/747-5238
court (as authorized by sec. 7), they merely
proceeded to create a district located wholly
within the other adjacent county and then to
4309 N. Tenth, Suite I3 achieve their original objective by way of
McAllen. TX. 76501.1665 annexation across the county line, relying on the
5121662.4547
provisions of sec. 14.a. After the purported
annexation, the new district then requested the
200 Main Plaza, Suite 400 County Tax Assessor-Collector of the county in
San Antonio, TX. 78205-2797 which the annexed territory is situated to assess
5121225-4191
and collect a tax of three (3c) on the one hundred
dollars ($100) valuation on all real and personal
An Equal Opportunity/ property in that territory.
Affirmative Action Employer
Section 2(a) of article 2351a-6, added in 1973, governs proposals
to create multi-county districts. Petitions to call elections
therefor must be presented to the county judge of each county wherein
the district is sought to be created. The commissioners court of each
county may either approve or disapprove the petition, but if one
grants the petition, the commissioners courts of each of the other
such counties must also grant it before an election may be called.
p. 2148
Honorable Donald R. Ross - Page 2 (MW-580)
Id. §8. Elaborate provisions specify the manner in which the fire
KGmissioners of an established multi-county district are to be
elected. -Id. §13(a).
Before section 2(a) was added in 1973 there was no express
provision in the statute that would allow a district created in one
county to expand beyond the borders of that county. Then, as now,
section 2 of the statute (as opposed to the added section 2(a)) dealt
with proposals to create a district "wholly within one county."
The same legislature that added section 2(a) also added section
14(a), which allows the Board of Fire Commissioners of a district,
upon the petition of qualified voters who own taxable property outside
the district, to add the territory of such property owners to the
district by resolution (subject to later ratification by electors in
both the district and the added territory). There is no express "one
county" limitation set out in section 14(a) and the argument has been
advanced that pursuant to its terms a district created in one county
may now expand into other counties without complying with the new
provisions expressly allowing and regulating the establishment of
multi-county districts.
In our opinion, section 14(a) cannot be used to circumvent the
requirements of sections 2(a) and 8. To appreciate the relationship
of these provisions, it is helpful to review their legislative
history. Section 2(a) was added, and section 8 was amended, by
chapter 260, Acts of the Sixty-third Legislature, enacting Senate Bill
NO. 764. Section 14(a) was added by chapter 341 thereof, enacting
House Bill No. 337. Thus, during one session the legislature enacted
two separate measures amending the same statute.
At the time they ware introduced, the intended operation of
neither measure was dependent upon the enactment of the other, and at
the time they were passed, the operation of neither was dependent upon
the governor's approval of the other. The bill adding section 14(a),
with its "annexation" provisions, was passed by the House on May 17,
1973, before it passed the bill authorizing multi-county districts on
May 19, 1973, and the "annexation" enactment became effective June 12,
1973, almost three months before the "multi-county" provision went
into effect. See Acts 1973, chs. 260. at 609; 341, at 768.
For the period of time between the effective dates of the two
enactments, districts could only be created "wholly within one county"
pursuant to section 2, and it was the apparent intention of the
legislature that during that interim, at least, the "annexation"
provision would have no application to territory located without the
county in which an annexing district had been created. We think it
continues to be so limited.
p. 2149
Honorable Donald R. Ross - Page 3 (MW-580)
The statute now contains two provisions for selecting the fire
commissioners of a district -- one (section 13) for districts created
wholly within one county and another (section 13a) for multi-county
districts. Section 13, which was part of the act before the 1973
amendments to the statute were adopted and has not since been changed,
provides for the appointment of district fire commissioners by the
conrmissioners court of the county within which the district was
created. Section 13(a). which governs the selection of fire
commissioners for multi-county districts (added by Senate Bill No.
764), provides for their election by a combined electorate in all the
counties comprising the district. We do not think it was the
intention of the legislature to leave to the commissioners court of
only one county the selection of fire commissioners for districts
embracing several counties.
Additionally, the original intention to restrict the operation of
section 14(a) to counties in which districts were created is evidenced
by the requirement of section 14(a)(3)(C) that the notice of the
public hearing required before annexation may be effected is to be
published "in a newspaper with general circulation in the county."
While we believe this requirement may be adapted to annexations by
established multi-county districts, we think its presence shows that
section 14(a) was not originally intended to embrace annexations
across county lines. at least not by districts established nursuant to
section 2 of the statute. See gs enerally 53 Tex. Jur. id Statutes
5125, at 180.
The case of Neil1 v. Cook, 365 S.W.2d 824 (Tex. Civ. App. -
Eastland 1963, writ ref'd n.r.e.), has been cited to us as supporting
the view that the "annexation" provisions of section 14(a) should be
read as providing an alternate means of establishing a multi-county
district. We have no quarrel with Neil1 v. Cook, but it does not
control the question here, which is one of intent. The Neil1 v. Cook
court determined that the legislature intended to allow school
authorities to annex territory in a manner that would accomplish the
end result of "consolidation" without following the election procedure
for consolidation. We have concluded that the intent of the
legislature was not to allow annexation by Rural Fire Prevention
Districts beyond- county lines without first establishing a
multi-county district pursuant to the procedure established by
sections 2(a) and 8 of article 2351a-6, V.T.C.S.
Acts in pari materia enacted at the same session of the
legislature are presumed to have been actuated by the same policy and
imbued with the same spirit. Garrett v. Mercantile National Bank at
Dallas, 168 S.W.2d 636 (Tex. 1943). The Sixty-third Legislature was
careful to provide in detail for the cooperative interaction of all
concerned counties with respect to any proposal for the establishment
of a Rural Fire Prevention District across county lines. We do not
p. 2150
Honorable Donald R. Ross - Page 4 (MW-580)
believe it intended by the enactment of the "annexation" provision to
allow local fire commissioners to establish multi-county districts in
disregard of those considerations.
SUMMARY
A Rural Fire Prevention District located wholly
within one county may not annex territory in a
different county.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Edna Ramon
Bruce Youngblood
p. 2151