Untitled Texas Attorney General Opinion ( 1974 )

THEATTORNEYGENERAL
OF.TEXAS
AUSTIN. TEXAS 78711
April 12, 1974
The Honorable John R. MacLean Opinion No. H- 279
County Attorney
Johnson County Courthouse Re: The authority of a
P. 0. Box 350 county to provide for
Cleburne, Texas 76031 fire protection when
the county is coter-
minous with a rural
Dear Mr. MacLean: fire prevention district
Your first question asks:
“whether the Commissioners Court of Johnson
County may contract with the City of Cleburne for
rural fire protection when, by a vote of the people,
the entire County was established as a rural fire
prevention district.~”
Rural Fire, Prevention Districts are authorized by Article 3, 5 48-d,
of the Texas Constitution which provides:
“The Legislature shall have the power to provide
for the establishment and creation of rural fire pre-
vention districts and to authorize a tax on the ad
valorem property situated in said districts not to
exceed Three (3$) Cents on the One Hundred ($100.00)
Dollars valuation for the support thereof; provided
that no tax shall be levied in support of said districts
u&i1 approved by vote of the people residing therein. ”
Pursuant to this provision of the Constitution the Legislature enacted
Article 2351a-6, Vernon’s Texas Civil Statutes, which establishes .the
means of creating rural fire prevention districts and outlines their powers
and duties.
p. 1300
The Honorable John R. MacLean, page 2 (H-279)
Another means of providing fire protection to residents of rural
areas is set out in Article 235la-1:
“The Commissioners Court in all counties of this
State shall be authorized to furnish fire protection and
fire-fighting equipment to the citizens of such county
residing outside the city limits of any incorporated
city, town or village within the county and/or adjoining
counties. The Commissioners Court shall have the
authority to purchase fire trucks and other fire-fight-
ing equipment by first advertising and receiving bids
thereon, and is hereby authorized to issue time war-
rants of the county and to levy and collect taxes to pay
the interest and principal thereon as provided by law.
The Commissioners Court of any county of this State
shall also have the authority to enter into contracts with
any city, town, or ,village within the county and/or ad-
joining counties, upon such terms and conditions as
shall be agreed upon between the Commissioners Court
and the governing body of such city, town or village, for
the use of the fire trucks and other fire-fighting equip-
ment of the city, town or village.”
See, County of Ector v. City of Odessa, 492 S. W. 2d 360 (Tex. Civ.App.
Amarillo, 1973, no writ).
It has been suggested that the powers given a rural fire prevention
district are exclusive and preclude the exercise of similar powers by the
commissioners court. The provisions advanced to support this conclu-
sion include the language of 5 10, Arty. 2351a-6, V.~ T. C. S., which provides
“[s]uch fire protection districts . . . shall have full authority to carry out
the objects of their creation . . . . ” and the portion of $14 of the same
statute providing that “[t]he Board of Fire.Commissioners shall administer
all the affairs of said district in accordance with the provisions of this
Act. . . .” While these two passages suggest ,the power of fire prevention
districts is plenary, we do not believe they lend support, either expressly
or impliedly, to the proposition that the power is exclusive.
‘p. 1301
The Honorable John q$ MacLean,, page 3 (H-279)
Although it well may be impractical and inefficient for a county to
provide rural fire protection when that-duty also is assigned to a rural
fire prevention, district, it is our opinion that a county is not precluded
from doing so.
Your second question assumes an affirmative answer to the first
question and asks:
“which governmental unit would he responsible for
civil liability relating to the furnishings of the services
in the light of [Article 4413(32c)? $4(g), Vernon’s Texas
‘Civil Statutes]? ”
Sectio,n 4(g) of _the Interlocal Cooperation Act, Article 4413(32c),
Vernon’.s Texas Civil Statutea, provides:
“(g) When governmental units enter a contract
or agreement.for the furnishing of fire protection
services, zany civil~ liabili~ty related to- the furnishing
of those services is the responsibility of the govern-
mental unit which wculd~ be responsible for furnishing
the services absent the contract or agreement. ”
A portion of Article 2351a-1 (quoted in part above) which authorizes
commissioners courts to provide fire protection also relates to liability
for acts committed by persons furnishing fire protection service under
contract. That article provides in part:
“It is specifically pr,ovided that the acts of any person
or persons while fighting fires, traveling to or from
fires, or in any manner durnishing fire protection to
the citizens of a county outside the city limits of any
city, town or village, shall be considered as the acts
of agents of the county in all respects, notwithstanding
such person or persons may be regular employees or
firemen of a city, town or.village. No city, town or
village within a county and/or adjoining counties shall~
p. 1302
The Honorable John R. MacLean, page 4 (H-279)
be held liable for the acts of any of its employees
while engaged in fighting fires outside the city
limits pursuant to any contract theretofore entered
into between the Commissioners Court of the county
and the governing body of the city, town or village. ”
We believe these’:two statutes must be construed together. Article
2351a-1 is the more specific statute and must prevail over the general
provisions of the Interlocal Cooperation Act. City of Bavtown v. Angel,
469 S. W. 2d 923 (Tex. Civ.App. Houston [14th Dist.] 1971, writ ref’d,
n. r. e.); Commercial Standard Fire and Marine Co. v. Commissioner
of Insurance, 429 S. W. 2d 930 (Tex. Civ.App., Austin, 1968, no writ),
53 Tex. Jur. 2d, Statutes, 8 161. Therefore, it is our opinion that the,
county would be liable for acts of a city employee committed while the
city was fulfilling a contractual obligation’to the county to fight fires.
S,UMMARY
A county is not precluded from contracting with
a city to provide fire protection outside then city limits
merely because the county is coterminous with a rural
fire prevention district. If a question of tort liability
arose due to acts committed under the contract between
the county and the city, Article 2351a-1 would control
the liability of the parties.
Attorney General of Texas
AP
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1303