The opinion
THE ATTORNEY GENERAL
OF TEXAS
August 17, 1990
Honorable David M. Motley Opinion No. JR-1209
Kerr County Attorney
323 Earl Garrett Re: Authority of a county to
Kerrville, Texas 78028 directly fund a rural fire
prevention district and related
questions (RQ-1992)
Dear Mr. Motley:
you advise that the creation of a rural fire prevention
district in part of Kerr County is contemplated. YOU ask
first whether Kerr County may "directly fund" the district
if it is created.
We note at the outset that.you have not elaborated in
your request on the nature of the proposed "direct funding"
of the rural fire prevention district. In the absence of
greater specificity in your request, we will assume in the
following discussion that the funding of the district would
be in the nature of cant-yactual payments by the county for
provision of fire protec-ion services, by or through the
district, to non-incorporated portions of the county within
district territory. Article III, section 52, of the consti-
tution prohibits donations by counties to "corporations,lU
including political entities. Bexar Countv v. Linden, 220
S.W. 761 (Tex. 1920); see also Tex. Const. art. VIII, 5 3
(taxation for public purposes only). Any funding of a rural
fire prevention district by the county would have to be in
furtherance of legitimate public purposes of the county,
with adequate controls to insure that benefits to county
residents are realized. See. e.s KV Commissioners
Court of Marion Countv 727 S.W12de 66;. (Tex. App. -
Texarkana 1987, no writ).'
Inherent in your question, then, is the question
whether payments by a county to a rural fire prevention
district for provision of fire protection services further
an authorized county purpose. Local Government Code
section 352.001 provides that a county commissioners court
.
p. 6395
Honorable David M. Motley - Page 2 (JM-1209)
"may furnish fire protection . . . to the residents of the
county . . . who live outside municipalities." Section
352.001 codifies, without substantive change, similar
language previously appearing in article 2351a-1, V.T.C.S.
Acts 1987, 70th Leg., ch. 149, at 707; see also Local Gov't
Code 5 1.001 (no substantive change intended). The
provisions of article 2351a-1 were first adopted in 1941.
Acts 1941, 47th Leg., ch. 360, 5 1, at 567.
In 1949, section 48-d was added to article III of the
constitution empowering the legislature to provide for the
establishment of rural fire prevention districts and to
authorize, with voter approval, levy of an ad valorem tax
for the support thereof upon approval by districts' voters.
In 1957, the legislature enacted the provisions of
article 2351a-6, V.T.C.S., authorizing the creation of rural
fire prevention districts "for the protection of life and
property from fire and for the conservation of natural
resources. 'I In 1989, the provisions of article 2351a-6 were
codified, without substantive change, as chapter 794 of the
Health and Safety Code. Acts 1989, 71st Leg., ch. 678, at
2230. Under the provisions of Health and Safety Code
chapter 794, a county commissioners court, upon a petition
by voters for creation of such a district in the county, and
the making of findings as to the feasibility and benefit of
a district, must fix the boundaries of the proposed district
and submit the issue of its creation and the levy of the
aforementioned tax to the voters residing within the
boundaries. Health & Safety Code §!j 794.011 - 794.018. If
the majority of the qualified voters voting approve the
proposition, the district is created as a political
subdivision of the state with authority to provide fire
protection facilities to prevent and extinguish fires in the
district. Id. §!j 794.019, 794.031(7). The governing body
of the district is composed of five "fire commissionerstl
appointed by the commissioners court. Id. 5 794.033.
It might be argued that once a rural fire prevention
district is created in a county, the county loses its
authority under Local Government Code chapter 352 to provide
fire protection in the area of the county included in the
district. Attorney General Opinion H-279 (1974) addressed
this issue in responding to the question whether a county,
the entire territory of which was included in a rural fire
prevention district, might nevertheless contract with a city
for the latter's provision of fire protection in areas
p. 6396
Honorable David M. Motley - Page 3 (JM-1209)
outside the city. In its discussion of the question, the
opinion stated that while provisions of article 2351a-6 (now
Health and Safety Code chapter 794) "suggest the power of
fire protection districts is plenary, we do not believe they
lend support, either expressly impliedly, to the
proposition that the power is ex%sive.10 The opinion
concluded:
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.
We adhere to the conclusion of Attorney General Opinion
H-279 that a county retains authority to provide fire
protection, under the provisions now in Local Government
Code chapter 352, even in areas where a rural fire
prevention district has been established.1
If, under Attorney General Opinion H-279, a county may
arrange for the provision of such services through a munici-
pality's. fire protection facilities, we see no reason why it
may not arrange for the provision of such services through
the rural fire prevention district itself. Concededly,
chapter 352 of the Local Government Code, the provisions now
governing county fire protection matters, does not specific-
ally provide for a county's contracting with a rural fire
prevention district for fire protection services, while it
does provide for such contracts with municipalities,
1. In support of our conclusion, we note that where a
hospital district is created in county territory, the county
is thereafter specifically prohibited by the constitution
from itself providing medical services within district
boundaries. Tex. Const. art. IX, 55 4, 9; see also id. art.
IX, § 13 (exception for mental health services): 36 D.
Brooks, Countv a Snecial District Law § 26.28 et sea
(Texas Practice 1::s). That the constitution and statute;
are, in contrast, silent as to whether counties retain
authority to provide fire protection ' rural fire
prevention district territory suggests, we tl?nk, that they
do retain such authority.
p. 6397
Honorable David M. Motley - Page 4 (JM-1209)
adjoining counties, and incorporated volunteer fire depart-
ments. Local Gov't Code 5 352.001. We do not think these
provisions -- first adopted prior to those in the
constitution or statutes authorizing creation of rural fire
prevention districts -- impliedly preclude counties* making
arrangements with rural fire prevention districts for
provision of such services. Article 4413(32c), V.T.C.S.,
the Interlocal Cooperation Act, in section 4, authorizes
contracts between "local governmentsOq -- including counties
and other "legally constituted political subdivisions" --
for l'performance of any governmental functions or services
which all parties to the contract are legally authorized to
perform." Rural fire prevention districts are political
subdivisions authorized to provide fire protection services.
Health & Safety Code §!j794.003, 794.031(7). As stated
above, it is our opinion that counties are also authorized
to provide the fire protection services in question.2
You express concern in your request letter that the
county's expending tax revenues, obtained from taxpayers
throughout the county, for fire protection services in the
portion of the county included in the rural fire prevention
district "would technically tax those outside the district
for a benefit they would never obtain." We think it is
inevitable. in the workings of most governmental units that
2. Attorney General Opinion MW-375 (1981) concluded in
part that the portion of V.T.C.S. article 1606~ -- now Local
Government Code section 352.019(b) -- requiring the county
fire marshal to coordinate the work of fire protection units
in the county, was inconsistent with the more specific
provisions of article 2351a-6 -- now Health and Safety Code
section 794.035 -- regarding the powers of the board of fire
commissioners of a rural fire prevention district, and that
the latter provisions controlled, thereby precluding the
fire marshal from coordinating fire protection units of a
district.
The county, in contracting with a rural fire prevention
district for the services you ask about will necessarily be
requiring provision of services 'of a particular nature. YOU
do not ask about, and we do not address here, the scope, if
any, of the fire marshal~'s role as coordinator in these
matters.
p. 6398
Honorable David M. Motley - Page 5 (JM-1209)
tax moneys raised from all the unit's taxpayers are
sometimes applied to projects which do not equally benefit
all the unit's citizens.
We do not understand you to suggest that the county,
while "funding" the district, will not, or does not intend
to, provide county residents in non-district territory over
which the county has fire protection authority with any such
services. Determinations as to allocation of expenditures
for fire protection in the county will involve various
factual considerations, such as the differing needs for such
services in different parts of the county. Clearly, such
determinations are, at least in the first instance, within
the reasonable discretion of the commissioners court. m
e.cr., len v. Brazoria Countv 224 S.W.Zd 305 (Tex. Civ.
APP. - Galveston, writ ref'd n1r.e.) (commissioners court
determination of location of county fire truck). Of course,
in order to comport with the aforementioned constitutional
prohibitions on donations and requirements that expendi-
tures be for a public purpose, county payments to a rural
fire prevention district for fire protection services in
district territory must secure for county residents of such
areas public benefits additional to those which would have
been provided by the district absent county funding.
We understand your second question to be whether the
county may "fundl' a volunteer fire department for provision
of fire protection services in non-incorporated areas of the
county if the volunteer fire department has also contracted
with a rural fire prevention district in the county for
provision of fire protection services.
We have concluded with regard to your first question
that the county retains its authority under chapter 352 of
the Local Government Code to provide fire protection in
non-incorporated areas of the county even if a rural fire
protection district has been created encompassing such
territory. Local Government Code section 352.001 speci-
fically provides for a county's contracting with volunteer
fire departments that are incorporated and located in the
county for provision of fire protection services in non-
incorporated areas of the county. We think it follows that
a county may contract with a volunteer fire department
that is incorporated for the provision of fire protection
services in non-incorporated parts of the county, even where
such areas are included in a rural fire prevention district.
See Attorney General Opinion V-1214 (1951) (no authorization
p. 6399
Honorable David M. Motley - Page 6 (JM-1209)
for county contract for fire protection services with volun-
teer fire department that is incorporated).3
We caution, as in our discussion of your first
question, that county "funding" of an incorporated volunteer
fire department must be in consideration for services
furthering a county purpose, with adequate controls to
insure that benefits to
. . county residents are thereby
realized. : Ke Count
=UlZ=. you sugg&t aOze:ario wherein t:e cotnty would bh
"funding" a volunteer fire department which itself was
already performing fire protection services, under contract,
for the rural fire prevention district. Obviously if county
funding of the volunteer fire department, under this
scenario, realized no additional benefit to the county,
because the services in question were already being provided
by the volunteer fire department under its contract with the
district, such arrangements would contravene constitutional
prohibitions on grants of public money and requirements that
public expenditures be for a public purpose. See. e.a.,
Tex . Const. arts. III, 5 52; VIII, § 3.
SUMMARY
A county has, under Local Government Code
chapter 352, and the Interlocal Cooperation
Act, article 4413(32c), V.T.C.S., authority
to contract with a rural fire prevention
3. The Interlocal Cooperation Act would not appear,
however, to independently authorize contracts with volunteer
fire departments since the latter are not "political sub- I
divisions" within the meaning of those provisions. Though
volunteer fire departments are referenced in the constitu-
tion and statutes in various connections, there is no
provision for their establishment as political subdivisions.
See, e.o., Tex. Const. art. III, § 51-d (payment of assis-
tance to survivors of members of "organized volunteer fire
departmentsl'); V.T.C.S. art. 6228f, § 2(a)(6) (defining
"organized volunteer fire department" for purposes of sur-
vivors' assistance). Rut see Attorney General Opinion
JM-821 (1987) (whether volunteer fire department is "govern-
mental body" under the Open Records Act, article 6252-17a,
V.T.C.S.).
p. 6400
Honorable David M. Motley'- Page 7 (JM-1209)
district in the county for the latter's
provision of fire protection services in
non-incorporated areas of the county included
in the rural fire prevention district. A
county also has authority under chapter 352
to contract with an incorporated volunteer
fire department for provision of fire
protection services in non-incorporated
areas, even if such areas are included in a
rural fire prevention district. Adequate
controls must be exercised in connection with
such arrangements to insure that public
benefits to county residents of such areas
are thereby obtained.
-I lL@iJx
Very truly y s,
/ L
: I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RKNEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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p. 6401
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