Untitled Texas Attorney General Opinion

THE ATTORXE~ GENERAL
OF TEXAS
December 23, 1986
Honorable James S. McGrath Opinion No. JM-591
Criminal District Attorney
P. 0. Box 2553 lb?: Whether a municipality way annex
Beaumont, Texas 77704 that portion of a rural fire preven-
tion district lying within its extra-
territorial jurisdiction
Dear Mr. McGrath:
You ask the following question:
If a home rule city consents to the creation of a
rural fire prevention district under article
2351a-6, V.T.C.S., within the extraterritorial
jurisdiction of the city, may the city sub-
sequently annex that portion of the territory of
the fire prevention district lying within its
extraterritorial jurisdiction?
We are not aware of a limitation on the annexation powers of .a home
rule city which would prohibit the annexation of such territory,
assuming that the charter of the city authorizes the annexation.
The right of a home rule city to annex territory is derived from
article XI, section 5, of the Texas Constitution, which grants plenary
powers and limits the powers of home rule cities only to the extent
that a power is inconsistent with the constitution or the laws enacted
by the legislature. Article 1175, section 2, V.T.C.S., expressly
grants to a home rule city the legislative power to annex additional
territory lying adjacent to the city according to the rules provided
by the city charter not inconsistent with the rules prescribed by the
Municipal Annexation Act. In 1963, the Municipal Annexation Act,
article 970a. V.T.C.S., was enacted to regulate a city's power of
annexation.
May V. City of McKinney, 479 S.W.Zd 114 (Tex. Civ.
APP. - Dallas 1972, writ ref'd n.r.e.).
The annexation powers of a city have been limited in several
ways. For instance, annexation is limited to territory adjacent to a
city and not included in the boundaries of another municipality. -
See
p. 2642
Honorable James S. McGrath - Page 2 (JM-591)
V.T.C.S. art. 1175, 52; State V. Texas City, 303 S.W.Zd 780, 782 (Tex.
1957). The Municipal Annexation Act, among other things, limits
annexation to territory within the city's extraterritorial juris-
diction and to areas of a certain minimum width, limits the amount of
territory a city may annex in a calendar year, and imposes a restric-
tion on the annexation of certain water and sewer districts by
requiring annexation of the entire portion of the district that is
outside the boundaries of the city. See V.T.C.S. art. 970a, 557(A),
7(B), 7(B-1). 11. See also City -of Wichita Falls V. State~Ex. Bel;
Vogtsberger, 533 S.W.Zd 927 (Tex. 1976); City of Waco i. City of
McGregor, 523 S.W.Zd 649 (Tex. 1975); City of Port Arthur V. Jefferson
County Fresh Water Supply Dist. No. 1, supra.
We find no limitations in the statutes on the annexation powers
of a home rule city because the city consented to the creation of a
rural fire prevention district within the city's extraterritorial
jurisdiction. A city, with its broad police powers, may overlap in
the territory with a special purpose entity vested with limited powers
even though some of their purposes are the same. See City of Pelly V.
Harris County Water Control h Improvement Distric%-ko. 7, 198 S.W.Zd
450 (Tex. 1946) (city may annex territory located in water control and
improvement district or water conservation district); Attorney General
Opinion JM-400 (1985). Article 2351a-6, V.T.C.S., which authorizes
the creation of rural fire prevention districts under the provisions
of section 48-d of article III of the Texas Constitution, expressly
recognizes that cities may be included in a fire prevention district.
V.T.C.S. art. 2351a-6, 08A.
It has been suggested that a city that consents to the:creation
of a rural fire prevention district to be composed in part of
territory within the city's extraterritorial jurisdiction may not
later withdraw a ~subsequently incorporated area from the district
because section 14b of article 2351a-6 does not expressly authorize
withdrawal by a "consenting city" whereas section 8A of article
2351a-6 refers specifically to a "nonconsenting city." It is our
opinion that the provisions of section 8A that remove from a fire
prevention district an area subsequently incorporated by a "non-
consenting cityu do not limit the 'provisions in section 14b to a
"nonconsenting city."
In the original enactment of article 2351a-6 in 1957, section 8A
provided that if part of the area of a proposed rural fire prevention
district was within the territory of an incorporated city, and a
majority of the voters of the area within the city voted against
creation of the district, the incorporated area could not be included
in the district. Thus, at the time of creation of the district, the
voters of an incorporated area determine whether the incorporated area
is included in the district. In 1973, the legislature amended section
8A to add the sentence that states that
p. 2643
Ronorable James S. McGrath - Page 3 (JM-591)
[slhould any nonconsenting city, town or village
ever annex territory into such proposed Rural Fire
Prevention District, then the Board of Fire Com-
missioners shall, after due notice, immediately
de-annex such area from its district and shall
cease to provide any further services to the
residents of that area. (Emphasis added).
Acts 1973, 63rd Leg., ch. 260, 58(a), at 609. Chapter 93 of Acts
1985, Sixty-ninth Legislature, made the provisions of section 8~ of
article 2351a-6 applicable to both the incorporated territory of a
city and the area within the city's extraterritorial jurisdiction. It
is our opinion that the legislature intends the term "nonconsenting
city" in section 8A to describe a city where voters residing in that
city or its extraterritorial jurisdiction determine that such area
shall not be included in the creation of a proposed rural fire
prevention district. After voter rejection of inclusion in the
district, section 8A mandates the immediate removal from the fire
prevention district of any territory in the district that the city
subsequently annexes.
In 1985, chapter 93 of the Sixty-ninth Legislature gave the
governing body of a city participation in the inclusion of territory
in a proposed district or withdrawal of territory from an existing
district. Chapter 93 added section 8B to require consent of the
governing body of a city for inclusion of the city's corporate
territory or extraterritorial jurisdiction in the creation of a
proposed fire prevention district. The governing body may give its
written consent for inclusion or may consent by a refusal or failure
to make fire protection available to the area as provided by sub-
sections (b) and (c). Consent of -the governing body Is merely
preliminary consent for the creation of a proposed district in
accordance with the other sections and provisions of article 2351a-6.
Without such consent, an area within the corporate limits or
extraterritorial jurisdiction of a city may not be included in the
proposed district. -See Acts 1985, 69th Leg., ch. 93, at 525.
Chapter 93 of the Sixty-ninth Legislature also added section 14b
to article 2351a-6 to allow the governing body of a city to provide
fire protection to an area within its corporate or extraterritorial
jurisdiction and withdraw the area from an existing rural fire
prevention district. Section 14b provides that:
(a) The governing body of a city that has an
area within its corporate or extraterritorial
jurisdiction included within a rural fire preven-
tion district may, on agreeing to provide fire
protection to the area as provided by Section 8B
of this Act . . . notify the secretary of the
p. 2644
Honorable James S. McGrath - Page 4 (JM-591)
board of fire commissioners in writing that the
area is excluded from 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
area by order from the district, and redefine the
district's boundaries.
V.T.C.S. art. 2351a-6, P14b. Section 14b does not expressly limit or
qualify the cities to which its provisions apply. Where the
legislature makes no exceptions to the provisions of a statute, it is
presumed that the legislature intends no exceptions. It is well
settled that exceptions in statutes are not ordinarily implied. See
Spears v. City of San Antonio, 223 S.W. 166, 169 (Tex. 1920); StuG
-7. Lowrey's Heirs, 253 S.W.Zd 312, 313 (Tex. Civ. App. - Eastland
1952, writ ref'd n.r.e.); Attorney General Opinion JM-453 (1986).
We conclude that the provisions of section 14b allow the govern-
ing body of any city that has an area within its corporate limits or
extraterritorial jurisdiction included in a rural fire prevention
district to agree "to provide fire protection to the area as provided
by section 8B" and avoid duplication of services by withdrawing the
area from the district. Cf. Attorney General Opinion JM-453 (1986)
(rights of bondholders on-thdrawal of territory from rural fire
prevention districts). Sections 8A and 14b are separate provisions of
the rural fire prevention district act which were enacted at separate
times to authorize different actions, namely (1) the voters' determin-
ation to exclude their area from a proposed district, and (2) the city
governing hoard's decision to exclude from an existing fire prevention
district an area to which the city agrees to provide fire protection.
The use of the term "nonconsenting city" in section 8A relates only to
a city where the voters excluded their area from the creation of a
proposed rural fire prevention district and to the consequent removal
from the district of territory subsequently annexed by the city. In
our opinion, the legislature does not intend "nonconsenting city" in
section 8A to apply to or affect the right granted to a city governing
body in section 14b to withdraw from a fire prevention district
territory to which the city provides fire protection.
SUMMARY
A home rule city may annex the territory of a
rural fire prevention district that lies within
the city's extraterritorial jurisdiction even
though the city consented to the creation of a
rural fire prevention district within its extra-
territorial jurisdiction. The fact that a city
consents to the creation of a rural fire
p. 2645
Honorable James S. McGrath - Page 5 (JM-591)
prevention district composed in part of territory
within the city's extraterritorial jurisdiction
does not prevent the city from withdrawing an area
in its corporate limits or extraterritorial
jurisdiction from a fire prevention district as
provided by article 2351a-6, section 14b, V.T.C.S.
J
Very ruly yours,
L
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2646