Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
0F TEXAS
P
April 12, 1988
Honorable Hugh Parmer Opinion No. JM-891
Chairman
Intergovernmental Relations Re: Whether an emergency
Committee communication district is
Texas State Senate authorized under article
P. 0. Box 12068 1432e, V.T.C.S., to supply
Austin, Texas 78711 emergency communications
service under contract
with other jurisdictions
(RQ-1338)
Dear Senator Parmer:
You ask three questions in regard to the authority
and operation of the Lubbock Emergency Communication
District. We restate those questions as follows:
1. Does the district have the authority
to contract to provide emergency communica-
tions services to other jurisdictions without
those jurisdictions becoming part of the
district?
2. Does the district have the authority
to impose an additional fee on an incoming
jurisdiction to cover the costs of providing
emergency communication services to that
jurisdiction?
3. How and when does the membership of
the board change when new jurisdictions are
added to the district?
We have been informed by a brief submitted in response to
your questions that the Lubbock Emergency Communication
District [hereinafter the district] was created in 1986
P
pursuant to article 1432e, V.T.C.S. [hereinafter the act].
Acts 1985, 69th Leg., ch. 288, at 1331.
Section 2 of the act identifies the purpose of the
act as follows:
p. 4364
Honorable Hugh Parmer - Page 2 04-891)
It is the purpose of this Act to esta-
blish the number 9-l-l as the primary
emergency telephone number for use by ?
certain local governments in this state and
to encourage units of local government and
combinations of those units of local govern-
ment to develop and improve emergency com-
munication procedures and facilities in a
manner that will make possible the quick
response to any person calling the telephone
number 9-l-l seeking police, fire, medical,
rescue, and other emergency services. . . .
The district is composed of Lubbock County and all incor-
porated cities located in Lubbock County. The questions
arise because the district has received inquiries from
Hale County and the City of Plainview in regard to
becoming a part of the district or receiving the services
of the district.
Your first question, regarding the authorfty of the
district to contract to provide emergency communication
services to a jurisdiction that is not part of the
district, is answered in the affirmative. We understand -,
your question to be whether an entity that is authorized
to become a part of the district pursuant to the act may,
in the alternative, merely contract for 9-l-l services.
The Interlocal Cooperation Act was enacted in 1971 with
the purpose of improving "the efficiency and effectiveness
of local governments by authorizing the fullest possible
range of intergovernmental contracting authority at the
local level." V.T.C.S. art. 4413(326), 51. That act
allows local governments to contract for the performance
of governmental functions and services. V.T.C.S. art.
4413(32c), 54. Section 3(l) of the act defines "local
government" in part as 'Ia county; a home rule city or a
city, village, or town organized under the general laws of
this state: a special district." Section 3(2) defines
lqgovernmental functions and services" as "all or part of
any function or service included within the following
general areas: police protection and detention services;
fire protection . . . public health and welfare."
That act would seem to have anticipated exactly the
kind of contract under consideration here; however section ?
4(b) requires that all parties to a contract for the
performance of governmental functions or services must be
authorized to perform those functions or services. See
Attorney General Opinion Nos. H-28 (1973); H-392 (1974).
?
p. 4365
Honorable Hugh Parmer - Page 3 (JM-891)
The Lubbock Emergency Communication District is authorized
to provide 9-l-l emergency service. See uenerally
V.T.C.S. art. 1432e.
In general, the duty of municipalities to provide for
the health, safety, and welfare of their inhabitants and
their authority to do so through ordinance and contract is
well established in Texas law. &S Texas-New Mexico
Utilities Co. v. Citv of Teacue 174 S.W.2d 57 (Tex. Civ.
APP. - Fort Worth 1943, writ iefld w.o.m.): Neal v. San
Antonio Water S oolv 21; itWin; (Tex. Civ. App. - San
Antonio 1919, wzit r;fld) h T lewhone C 0. v. Citv of
182 S.W.42 (Tex. Civ. Appf! - Dallas 1915, writ
sr - Local Gov't Code 5551.001, 51.012, 51.014, 51.032,
51.051: 51.072.
Counties do not have the broad range of authority in
the area of health, safety and welfare that cities have.
Counties have no powers or duties except those that are
expressly granted and defined by statute or constitution.
Harrison Countv v. Citv of MarshalL 253 S.W.2d 67 (Tex.
Civ. App. - Fort Worth 1952, writ rei'd); Attorney General
Opinion JM-789 (1987). We find authorization for a county
to provide 9-l-l emergency service only in article 1432g,
which authorization is limited to a county that has a
population of more than 1.5 million and in which a
communication district has not been established under
article 1432c, V.T.C.S. Accordingly, we find that the
district may contract with a county that comes within the
terms of article 1432g and with any city, general law or
home rule, that has an ordinance allowing the city to
provide 9-l-l emergency service. Any such contract would
need to meet the requirements of both the Interlocal
Cooperation Act (article 4413(32c)) and the district's
enabling act (article 1432e). Hale County does not,
however, fall within this statute because its population
is substantially less than 1.5 million. Therefore, Hale
County may participate in the district only by joining as
a member jurisdiciton pursuant to article 1432e, V.T.C.S.
Your second question concerns the authority of the
district to impose on a jurisdiction, which is becoming a
part of the district, an additional charge to cover the
cost of providing service. Section 27 of the act provides
that a public agency in the county in which the district
is located or in an adjoining county may become a part of
the district on adoption of a resolution by the governing
board of the public agency and approval by the district's
board. Section 3(2) of the act defines "public agency"
p. 4366
Honorable Hugh Parmer - Page 4 W-891)
as *'any city or county that provides or has authority
to provide fire-fighting, law enforcement, ambulance,
medical, or other emergency services." ?
Section 11(c) enumerates charges that are assessable
to public agencies that enter the district after its
formation. That section expressly authorizes the board to
charge the incoming jurisdiction "an additional amount of
money to cover the initial cost of providing the service
to the incoming jurisdiction." Accordingly, we answer
your second question in the affirmative.
Your third question involves the reorganization of
the board upon the addition of new jurisdictions. For the
purposes of this opinion we will assume that an adjoining
county is to be added to the district. As noted above,
section 27 of the act clearly permits non-participating
jurisdictions to join the district after its initial
formation by the joint action of the board of managers and
the governing body of the incoming jurisdiction.
Because the city of Lubbock meets the definition of
"most populous city" found in section 3(6) of the act,
section 6(a) governs the appointment of the members of the ?
board of managers. That section reads in part as follows:
Sec. 6. (a) If the district has a city
meeting the definition of 'most populous
city,' the district's governing authority is
a board of managers composed of:
(1) one voting member for each county in
the district, with the commissioners court
of each county appointing its own member:
(2) two voting members appointed by the
governing body of the most populous city in
the district:
(3) one voting member appointed by the
governing body of the second-most populous
city in the district:
(4) one voting member appointed to
represent the other cities and towns lying
wholly or partly within the district, that
appointment to be made by the mayor's
council established to administer urban
development block grant funds if such a
p. 4367
Honorable Hugh Parmer - Page 5 (JM-891)
mayor's council exists and, if a mayor's
council does not exist, then by action of
the other board members, on the advice and
recommendation of the governing bodies of
all other cities and towns lying wholly or
partly within the district: and
(5) one nonvoting member appointed by
the principal service supplier.
While the legislative intent to change the composition of
the board upon the addition of new territory is not clear
from the language of section 6(a), such an intent is clear
from the language found in section 6(b), which governs the
composition of the board where there is no "most populous
city" within the district. Section 6(b)(l)(B) reads as
follows:
[I]f only one county was in the district
as the district was originally created but
more than one county is currently in the
district, two voting members appointed by
the commissioners court of the county in
P which the district was originally located
and one voting member for each other county
in the district, with the commissioners
court of each of those other counties
appointing its own member. . . .
That section clearly indicates that the membership of the
board will change with a change in the territory that is
included in the district. We find no reason in that
regard to distinguish a district that includes a most
populous city from one that does not. The legislature
intended to create a representative board, albeit remotely
representative in the case of other cities and towns in
the district (M section 6(a)(4) above).
The legislature has given no direction in regard to
the change in the membership of the board upon the
addition of new territory. We can find no reason to
unseat the member currently representing the second most
populous city upon the addition of another city. Further-
more, there is public policy to be served by allowing that
member to serve the remainder of his term. The statute
does not, however, contemplate the immediate addition of
an additional member to the board. Consequently, we
conclude that the member currently appointed by the second
most populous city should serve the remainder of his term,
p. 4368
Honorable Hugh Parmer - Page 6 (JM-891)
and the member appointed by the newly added second most
populous city should not begin to serve his term until the
completion of the term of that member whom he will ?
replace.
SUMMARY
The Lubbock Emergency Communication Dis-
trict has the authority under the Interlocal
Cooperation Act to contract to provide emer-
gency communication services to jurisdictions
that are not part of the district. The dis-
trict has the authority to impose a fee on an
incoming jurisdiction to cover the cost of
providing emergency communication services to
that jurisdiction. The membership of the
board will not change until the expiration of
the term of the member who will vacate the
board.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant .Attorney General
LOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4369