Untitled Texas Attorney General Opinion ( 1989 )

January 24, 1989
Honorable Mike Driscoll Opinion No. JM-1010
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of a commis-
Houston, Texas 77002 sioners court to impose
limitations on an emergency
services district,
related questions (RQ-15$
Dear Mr. Driscoll:
You ask several questions about article III, section
48-e, of the Texas Constitution, which permits the creation
of emergency services districts, and about article 2351a-8,
which implements article II, section 48-e-l
You first ask:
May the Commissioners Court limit the amount
of the tax which may be levied in support of
an emergency services district in the order
calling the election and in the ballot prop-
osition to be submitted to the voters to
confirm the organization of said district?
For example, may the Commissioners Court set
a maximum rate of six cents per $100 valua-
tion?
Article III, section 48-e, provides:
Laws may be enacted to provide for the
establishment and creation of special dis-
tricts to.provide emergency services and to
authorize the commissioners court of par-
ticipating counties to levy a tax on the ad
valorem property situated in said districts
1. Article 2351a-9 also implements article III, section
48-e, for counties with a population of 125,000 or less.
p. 5200
Honorable Mike Driscoll - Page 2 (JM-1010)
not to exceed Ten Cents (1Oc) on the One
Hundred Dollars ($100.00) valuation for the
support thereof; provided that no tax shall
be levied in support of said districts until
approved by a vote of the qualified electors
residing therein. Such a district may pro-
vide emergency medical services, emergency
ambulance services, rural fire prevention and
control services, or other emergency services
authorized by the Legislature.
The statute implementing article III, section 48-e, iS
article 2351a-8, V.T.C.S. Section 1 of article 2351a-8
provides:
Emergency services districts may be
organized in this state under Article III,
Section 48-e, of the Texas Constitution for
the protection of human life and health as
provided by this Act.
Section 2 of article 2351a-8 provides for petitions for
emergency services districts in one-county districts, and-
section 3 provides for petitions for multi-county districts.
Section 4.provides for filing of ,petitions. Sections 5 land
6 provide for notice of and hearings on proposed districts.
Section 7 provides:
If at the hearing it appears to the corn-
missioners court that the organization of a
district as petitioned for is feasible and
practicable, and will be conducive to the
public safety, welfare, health, and conve-
nience of persons residing in the district,
the court shall make those findings and grant
the petition and fix the boundaries of the
district. If the court does not make those
findings, it shall deny the petition.
Section 8 provides in part:
When the petition is granted, the commis-
sioners court shall call an election to
confirm the organization and authorize the
levy of an ad valorem tax in an amount not to
exceed 10 cents on the $100 valuation . . . .
Your question is whether the ballot proposition must
ask the voters to grant the commissioners court authority to
levy a tax of up to ten cents on the $100 valuation or
p. 5201
Honorable Mike Driscoll - Page 3 (JM-1010)
whether a commissioners court has the option of asking the
voters to give the commissioners court authority to levy a
maximum tax for the support of,the,district of less than ten
cents on the $100 valuation. Both the constitutional and
statutory provisions are ambiguous on this point. It is
possible to read both provisions as allowing only one issue
to be presented to the voters: whether a district shall be
created with the authority to levy a tax not to exceed ten
cents on the $100 valuation. It is also possible to read
those provisions as simply setting the maximum tax that the
voters may authorize and allowing the voters to authorize a
lower maximum tax.
Although the statute is ambiguous, several provisions
of article 2351a-8 lead us to the conclusion that the legis-
lature did not intend2 to allow the commissioners court to
propose or the voters to authorize a maximum tax rate other
than ten cents on the $100 valuation. For example, section
11 provides:
If a majority of those voting at an
election to create an emergency services
district votes in favor of the formation of
the district, the district shall be consid-
ered an-organized emergency services distri.ct
under this Act. The commissioners courts of
the counties in which the district is located
shall enter orders accordingly in their
minutes substantially in the following form:
Whereas, at an election duly and regularly
held on the date of A.D.
19-t within that portion of bounty,
State of Texas, described as: (insert
description unless the district is county-
wide) there was submitted to the legal voters
thereof the question whether the above
described territory shall be formed into an
2. Even if the constitutional provision permits the
legislature to allow a county or counties to set any maximum
tax rate up to ten cents on the $100 valuation, it clearly
does not require the legislature to permit such variation.
Therefore, for purposes of this opinion, we will only
attempt to determine the legislative intent in enacting
article 2351a-8.
p. 5202
Honorable Mike Driscoll - Page 4 (JM-1010)
emergency services district under the
provisions of the laws of this state; and
Whereas, at such election votes were
cast in favor of formation o=id district
and votes were cast against such
forma=; and
Whereas, the formation of such emergency
services district received the affirmative
vote of the majority of the votes cast at
such election as provided by law;
Now, therefore, the County Commissioners
court of County, State of Texas, does
hereby find, declare and order that the tract
hereinbefore described has been duly and
legally formed into an emergency services
district (or a portion thereof) under the
name of under and pursuant to Article
III, Section 4;1-e, of the Texas Constitution,
and with the powers vested in such district
conferred by law.
That sample form for the orderto be entered in the
minutes of the commissioners court does not contain any
statement about the maximum tax that may be levied for the
support of the district. That indicates that the
legislature did not intend for a commissioners court to be
able to ask the voters to appr0ve.a maximum taxing authority
of less than ten cents on the $100 valuation. Therefore we
think the commissioners court must ask the voters to approve
a district with a maximum taxing authority of ten cents on
the $100 valuation.
Also, the fact that there is no requirement that the
petition for an emergency services district specify a
maximum tax rate and the fact that the notice of the hearing
on the petition is not required to .contain the proposed
maximum tax rate both indicate that the legislature did not
intend for the maximum tax rate to be negotiable. V.T.C.S.
art. 2351a-8, §§ 2, 3, and 5. A policy reason supports that
interpretation: Both the constitution and the statute
contemplate multi-county emergency services districts.
Certainly, the legislature would have intended ~for all areas
within the district to be subject to the same maximum tax.
The creation of multi-county districts would be considerably
complicated if the commissioners court of every participat-
ing county could propose a different maximum tax rate. See
p. 5203
Honorable Mike Driscoll - Page 5 (JM-1010)
Attorney General Opinion JM-681 (1987). See uenerallv
V.T.C.S. art. 2351a-8, § 8.
Of course, nothing in the constitution or statutes
would require that the maximum tax authorized be levied in
any particular year. The commissioners court would have
authority to levy a tax of' six cents on the $100' valuation
if it chose to do so.
The second question we will discuss is one you raise in
your brief but do not include in your list of questions.
That question is whether the legislature may grant the board
of an emergency services district the authority to levy
taxes. Article III, section 48-e provides that laws may be
enacted to authorize the commissioners court of participat-
ing counties to levy a property tax. a Tex. Const.
art. III, 5 48-d (authorizing the creation of rural fire
prevention districts and authorizing an ad valorem tax "in
said districts"). You point out, however, that several
sections of article 2351a-8 appear to authorize the board of
an emergency services district to levy taxes. See, e.a
V.T.C.S. art. 2351a-8, !j§ 14(5), 19. Cf. V.T.C.S. art:
2351a-8, 5 20 (providing that district may issue bonds only
with approval of commissioners courts of all participating
counties). Because we must .construe a st~atute to be
constitutional if possible, we conclude that any provision
that appears to give the board of an emergency services
district authority to levy taxes must be read to give a
board such authority gnlv with the aooroval of the
commissioners courts of all oarticinatina counties. See Key
Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839,
849 ITex. 1961) (statins that, if possible, court must
construe statute to avoid-repugnancy tb constitution).
YOU next ask:
In the event that a rural fire prevention
district petitions for the conversion of said
district into an emergency services district,
what is the maximum ad valorem tax rate which
may [be] levied annually?
Section 33 of article 2351a-8 provides:
(a) Qualified voters who own taxable real
property in a rural fire prevention district
may present a petition to convert the rural
fire prevention district into an emergency
services district in the manner provided by
p. 5204
Honorable Mike Driscoll - Page 6 (JM-1010)
this Act for the' creation of an emergency
services district.
(b) If a rural fire prevention district is
converted into an emergency services dis-
trict, the emergency services district
assumes all obligations and outstanding
indebtedness of the rural fire prevention
district that it succeeds.
Once a rural fire prevention district became an emergency
services district, it would be governed by the laws applica-
ble to emergency services districts. Consequently, it would
be authorized to levy an ad valorem tax not to exceed ten
cents on the $100 valuation.
Your final question is:
What is the maximum ad valorem tax rate which
may be levied in support of an emergency
services district whose boundaries overlap or
are coterminous with a rural fire prevention
district?
Section 8 of article.2351a-8 states that~if any area includ-
ed within the boundaries of a rural fire prevention district
is included within the boundaries of an emergency services
district, the commissioners court shall call an election to
confirm the organization and authorize the levy of an ad
valorem tax in an amount not to exceed two cents on the $100
valuation.
SUMMARY
Article 2351a-8, V.T.C.S., requires that
voters determine whether an emergency servic-
es district be created with authority to levy
a tax not to exceed ten cents on the $100
valuation. It does not permit voters to
consider whether an emergency services
district shall be created with a maximum
taxing authority of less than ten cents. on
the $100 valuation.
Article 2351a-8 must be construed
allowing an emergency services district tz
levy taxes with the aooroval of the commis-
sioners courts of all particioatina counties.
p. 5205
Honorable Mike Driscoll - Page 7 (JM-1010)
If a rural fire prevention district
becomes an emergency services district, the
maximum taxing authority for the district
would be ten cents on the $100 valuation.
If a rural fire prevention district lies
wholly or partially within the boundaries of
an emergency services district, the maximum
taxing authority for the district would be
two cents on the $100 valuation.
~J I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
,JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 5206