the City of Frisco, Texas v. the Commission on State Emergency Communications Dorothy Marie Morgan and Paul Mallett in Their Official Capacities And North Central Texas Council of Governments

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00579-CV

The City of Frisco, Texas, Appellant

v.

The Commission on State Emergency Communications; Dorothy Marie Morgan and
Paul Mallett in their Official Capacities; and North Central Texas Council of
Governments, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-04-003690, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

MEMORANDUM OPINION

This case involves the interpretation of Chapter 771 of the Texas Health and Safety

Code, which addresses the State’s administration of a 9-1-1 emergency communications system. See

Tex. Health & Safety Code Ann. §§ 771.001-.110 (West 2003 & Supp. 2008). The City of Frisco

(“Frisco”) joined the State’s system in 1989 and began providing 9-1-1 services to its residents in

1991. In 2004, Frisco filed a declaratory-judgment suit against the Commission on State Emergency

Communications (“the Commission”) and certain commission officers, seeking a declaration from

the trial court interpreting the statute to say that: (1) Frisco could withdraw from the State’s system;

(2) once Frisco withdrew, the Commission could no longer collect an emergency service fee from

Frisco’s residents; and (3) upon Frisco’s withdrawal, the Commission was required to distribute to

Frisco a portion of the fees the Commission collected from wireless-telephone users.
 The parties filed cross-motions for summary judgment, and the trial court granted

partial summary judgment for Frisco, declaring that Frisco could withdraw from the State’s system,

and partial summary judgment for the Commission, declaring that even after withdrawal, Frisco’s

residents would not be exempted from the State’s emergency service fee, and Frisco would not be

entitled to a portion of the wireless-telephone fee. Frisco appealed. Because we find no error in the

trial court’s determinations, we affirm the trial court’s order.

BACKGROUND

In 1987, the Texas Legislature adopted Chapter 771 of the Texas Health and Safety

Code (“the statute”), creating a statewide 9-1-1 emergency communications system and charging

the Commission with the administration of the system. See Tex. Health & Safety Code Ann.

§§ 771.001-.110. Prior to 1987, 9-1-1 systems were administered by local governments,

combinations of local governments, and home-rule municipalities, which together provided services

to about thirty-nine percent of the state’s total population.1 The statute sought to expand the 9-1-1

services to the rest of the state and implement the State’s system through twenty-four existing

1
Because 9-1-1 services were localized before 1987, service gaps existed within the state.
In a 1987 report created for the legislature, the Commission found several problems with the systems
existing at that time. First, the Commission reported that existing 9-1-1 districts incurred
unnecessary costs in re-routing calls from areas where 9-1-1 service was not available. Second, the
lack of 9-1-1 service in the unserved areas and the time it took to re-route calls in those areas resulted
in a critical loss of time in an emergency situation. Third, the cost of providing 9-1-1 service varied
from jurisdiction to jurisdiction, with areas of high-population density enjoying lower average costs
than sparsely populated areas. As a result, the Commission recommended a statewide 9-1-1 program
to eliminate service-area gaps and allow for subsidization of the cost of 9-1-1 services in the less-
populated areas. See Advisory Commission on State Emergency Communications, Report with
Recommendations to the 70th Texas Legislature (Jan. 1987).

2
regional planning commissions that were established under Chapter 391 of the Texas Local

Government Code. See Tex. Loc. Gov’t Code Ann. §§ 391.001-.015 (West 2006 & Supp. 2008);

Tex. Health & Safety Code Ann. §§ 771.001(10), 771.055 (West 2003). Communities with

preexisting 9-1-1 systems became “emergency communication districts” (ECDs) under the statute,

and the legislature allowed the ECDs the option of not participating in the State’s system. See

Tex. Health & Safety Code Ann. §§ 771.001(3)(A), 771.071(d) (West 2003), § 771.0711(c)

(West Supp. 2008). The legislature also authorized communities to become ECDs under

Chapter 772 of the Texas Health and Safety Code, but they had to do so before January 1, 1988.2

See Tex. Health & Safety Code Ann. §§ 771.001(3)(B), 772.104, 772.204, 772.304 (West 2003).

To fund the statewide 9-1-1 system, the legislature initially adopted a two-tiered

approach. First, the legislature authorized the Commission to impose an emergency service fee (“the

land-line fee”) on each local exchange access line in the state with the exception of the customers

in an area served by an ECD that was not participating in the State’s system. See id.

§ 771.071(a), (d). Second, the legislature authorized the Commission to impose an equalization

surcharge on each customer in the state receiving intrastate long-distance service, including those

customers in an area served by an ECD that was not participating in the State’s system.3 See id.

§ 771.072(a) (West 2003). In 1997, the legislature added a wireless emergency service fee (“the

2
The City of Lubbock is one example of a community that became an ECD pursuant to
Chapter 772. See Lubbock Emergency Communication Dist. v. Wireless Providers, No. 07-99-0045-
CV, 1999 Tex. App. LEXIS 7784, at *3 (Tex. App.—Amarillo Oct. 19, 1999, pet. denied)
(not designated for publication).
3
This fee, known as the “equalization surcharge,” is specifically designed to supplement
emergency service fees for regional planning commissions and ECDs that are in need of additional
funding.

3
wireless fee”), authorizing the Commission to impose the fee on each wireless telecommunications

connection in the state. See id. § 771.0711(a). The statute provides that after collecting the wireless

fee each month, the Commission is then required to distribute a portion of the money to each ECD

that does not participate in the State’s system. See id. § 771.0711(c).

Frisco is a home-rule municipality.4 It joined the State’s system in 1989 when it

contracted with the North Central Texas Council of Governments (“North Central Council”), one of

the regional planning commissions operating in the state, to begin providing 9-1-1 services to its

residents. In 2003, Todd Renshaw, Frisco’s chief of police and the person responsible for overseeing

Frisco’s 9-1-1 system, began considering the possibility of Frisco’s withdrawal from the State’s

system so that it could provide its own 9-1-1 service to its residents. In an effort to determine

whether the Commission would allow such a withdrawal, Renshaw met with the executive

director of the Commission, Paul Mallett, on more than one occasion. Mallett indicated that

there were no statutory provisions that would allow the Commission to permit a city to withdraw

from the State’s system.

4
Home-rule municipalities derive their power from the Texas Constitution. See Tex. Const.
art. XI, § 5; State v. Chacon, 273 S.W.3d 375, 378 (Tex. App.—San Antonio 2008, no pet.). They
are essentially “mini-legislatures,” with “full authority to do anything the legislature could
theretofore have authorized them to do.” Forwood v. City of Taylor, 214 S.W.2d 282, 286
(Tex. 1948); Chacon, 273 S.W.3d at 378. They possess “the full power of self government and look
to the [l]egislature not for grants of power, but only for limitations on their power.” In re Sanchez,
81 S.W.3d 794, 796 (Tex. 2002) (quoting Dallas Merchant’s & Concessionaire’s Ass’n v. City of
Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993)). They have “all the powers of the state not
inconsistent with the Constitution, the general laws, or the city’s charter.” City of Galveston v. State,
217 S.W.3d 466, 469 (Tex. 2007) (quoting Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)).

4
 In November 2004, Frisco filed suit against three parties: the Commission, Mallett

in his official capacity as executive director of the Commission, and Dorothy Marie Morgan in her

official capacity as presiding officer of the Commission. The defendants later filed a petition to join

the North Central Council as a party. Frisco and the Commission filed cross-motions for

summary judgment, and the trial court granted partial summary judgment for Frisco, issuing a

declaration that Frisco could withdraw from the State’s system, and partial summary judgment for

the Commission, declaring that once Frisco withdrew, the Commission could continue to collect the

land-line fee from Frisco’s residents and was not required to give Frisco a portion of the wireless fee.

Frisco appeals from the summary-judgment order in two issues, asserting that the

trial court erred in declaring that, even after Frisco withdrew from the State’s system, (1) the

Commission could continue to assess the land-line fee on Frisco’s residents, and (2) the Commission

need not give Frisco a portion of the wireless fee.5

STANDARD OF REVIEW

Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). When both parties move for summary judgment on the same

issues and the trial court grants one and denies the other, the appellate court considers the summary-

judgment evidence presented by both sides, determines all questions presented, and if the

reviewing court determines that the trial court erred, renders the judgment the trial court should have

rendered. Id.

5
The Commission has not appealed the trial court’s judgment that Frisco is entitled to
withdraw from the State’s system.

5
 The issues raised in this appeal involve statutory construction, which is a question of

law that we review de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). In resolving an

issue of statutory construction, we are required, first and foremost, to follow the plain language of

the statute. Texas Health Ins. Risk Pool v. Southwest Serv. Life Ins. Co., 272 S.W.3d 797, 801

(Tex. App.—Austin 2008, no pet.). We read every word, phrase, and expression in a statute as if it

were deliberately chosen, and we presume that words excluded from the statute are done so

purposefully. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873

(Tex. App.—Austin 2002, pet. denied). We must read the statute as a whole, rather than just isolated

portions, giving meaning to the language that is consistent with other provisions in the statute.

Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 872-73 (Tex. 2005); Texas Dep’t of

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).

DISCUSSION

The Land-Line Fee

In its first issue, Frisco contends that the trial court erred in ruling that the

Commission could continue to impose the land-line fee on Frisco’s residents even after Frisco

withdrew from the State’s system. In support of its contention, Frisco makes three arguments,

asserting that: (1) the Commission has no statutory authority to impose the land-line fee on non-

participating home-rule municipalities; (2) the trial court’s ruling creates an absurd result; and (3) the

trial court’s ruling results in double taxation. We will consider each argument in turn. However,

before we do so, we must first address the crux of this issue: the statutory construction of the

provisions of the statute referring to the land-line fee.

6
 A. Statutory Construction of Land-Line Fee Provisions

The section of the health and safety code addressing the land-line fee states that “the

commission may impose a [land-line] fee on each local exchange access line or equivalent local

exchange access line, including lines of customers in an area served by an [ECD] participating in the

applicable regional plan.” Tex. Health & Safety Code Ann. § 771.071(a). The section also states

that “[t]he fee does not apply to an [ECD] not participating in the applicable regional plan. A

customer in an area served by an [ECD] not participating in the regional plan may not be charged

a fee under this section.” Id. § 771.071(d).

The plain language of the exclusionary provision excepts only the residents of non-

participating ECDs from paying the fee. There is no dispute that Frisco is not an ECD, and none of

the language in the provision excepts home-rule municipalities or any other entities that are not

ECDs. Thus, for us to conclude that Frisco is exempt from the fee would be for us to read additional

language into the statute, which we will not do. See City of Rockwall v. Hughes, 246 S.W.3d 621,

628 (Tex. 2008) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981))

(“[E]very word excluded from a statute must . . . be presumed to have been excluded for a

purpose.”). As noted in Hughes, there are two significant benefits to reading the statute’s language

literally and not reading additional language into the statute: (1) we do not risk crossing the line

between judicial and legislative powers of government, and (2) we build upon the principle that

ordinary citizens should be able to rely on the plain language of a statute to mean what it says. Id.

Accordingly, based on the plain language of the statute, we conclude that the legislature intended to

except only non-participating ECDs from the land-line fee, not non-participating home-rule

7
municipalities, and that Frisco is therefore not excepted from the fee in the event that it withdraws

from the State’s system.

Further supporting our interpretation is the legislature’s reference to home-rule

municipalities in several other provisions of the statute. See Tex. Health & Safety Code

Ann. § 771.055(e) (referring to “home-rule municipalities that operate 9-1-1 systems independent

of the state system”), § 771.062(c) (West 2003) (referring to “home-rule municipality that operates

a 9-1-1 system independent of the state system”), § 771.0711(g) (referring to “a home-rule

municipality . . . created under Chapter 772”). The legislature’s other references to home-rule

municipalities demonstrate that the legislature was aware of them and could have included them in

the exception to the land-line fee if it wanted to do so, yet it did not. See Fireman’s Fund County

Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000) (“When the [l]egislature has employed a term

in one section of a statute and excluded it in another, we presume that the [l]egislature had a reason

for excluding it.”).

B. Commission’s Authority to Impose Fee on Frisco

Although Frisco states its first argument in two different ways—citing to several

statutory provisions for the proposition that non-participating home-rule municipalities operate

outside the statute and several others for the proposition that the statute provides no authority for the

commission to impose the land-line fee on non-participating home-rule municipalities—the

arguments can be combined into one: that the legislature had no intention of including non-

participating home-rule municipalities in the state’s 9-1-1 funding system and that the Commission

therefore may not impose the land-line fee on non-participating home-rule municipalities.

8
 We begin by considering several sets of statutory provisions cited by Frisco for the

proposition that non-participating home-rule municipalities are not included within the funding

system in the first place. The first set of provisions includes the following:

For each state fiscal biennium, the commission shall prepare a
strategic plan for statewide 9-1-1 service for the following five state
fiscal years using information from the strategic information
contained in the regional plans and provided by [ECDs] and home-
rule municipalities that operate 9-1-1 systems independent of the state
system. Tex. Health & Safety Code Ann. § 771.055(e).

An [ECD] or home-rule municipality that operates a 9-1-1 system
independent of the state system may voluntarily submit strategic
planning information to the commission for use in preparing the
strategic plan for statewide 9-1-1 service. Id. § 771.062(c).

On receipt of an invoice from a wireless service provider for
reasonable expenses for network facilities, including equipment,
installation, maintenance, and associated implementation costs, the
commission or an emergency services district of a home-rule
municipality or an [ECD] created under Chapter 772 shall reimburse
the wireless service provider in accordance with state law for all
expenses related to 9-1-1 service. Id. § 771.0711(g).

None of the cited provisions supports Frisco’s position. For example, the first and second

provisions, sections 771.055(e) and 771.062(c), provide that the Commission must prepare a

strategic plan for statewide 9-1-1 service using information provided by non-participating home-rule

municipalities and that the non-participating home-rule municipalities may voluntarily submit the

information. See Tex. Health & Safety Code Ann. §§ 771.055(e), 771.062(c). The legislature’s

acknowledgment of non-participating home-rule municipalities and the information they may

provide for inclusion in the Commission’s strategic plan is irrelevant to the issue of whether non-

9
participating home-rule municipalities are included in the statewide 9-1-1 funding system. The

legislature could reasonably include non-participating home-rule municipalities in the strategic

planning and also require them to pay the land-line fee. Thus, the two provisions cited by Frisco do

not affect our reading of the plain language of the land-line fee provision.

Regarding the third provision, section 771.0711(g), it is also irrelevant to the issue

of whether non-participating home-rule municipalities are included in the funding system.

Section 771.0711(g) provides that home-rule municipalities must reimburse a wireless service

provider for all expenses related to 9-1-1 service. See id. § 771.0711(g). That a home-rule

municipality must reimburse a wireless service provider does not speak to whether that home-rule

municipality must also pay a land-line fee. The legislature could conceivably require only one of the

two payments, both of them, or neither. Thus, neither provision affects the other.6

Like the first set of provisions cited by Frisco, the second set of provisions also does

not support Frisco’s proposition that non-participating home-rule municipalities are not included in

the funding system of the statute. The second set of provisions states:

Each regional planning commission shall develop a regional plan for
the establishment and operation of 9-1-1 service throughout the
region that the regional planning commission serves. Id.
§ 771.055(a) (emphasis added by Frisco).

6
We also disagree with Frisco’s contention that adopting the Commission’s interpretation
would render the three cited provisions meaningless. Our interpretation of the land-line fee
provision—that the residents of non-participating home-rule municipalities must pay a land-line fee
to the Commission—does not nullify the fact that non-participating home-rule municipalities may
also provide information to the Commission for inclusion in the Commission’s strategic plan or that
they may also be required to reimburse wireless service providers.

10
 For each state fiscal biennium, the commission shall prepare a
strategic plan for statewide 9-1-1 service for the following five state
fiscal years using information from the strategic information
contained in the regional plans and provided by [ECDs] and home-
rule municipalities that operate 9-1-1 systems independent of the state
system. Id. § 771.055(e).

The first provision is irrelevant to the issue of the imposition of the land-line fee because the

provision does not in any way refer to the fee or to non-participating entities within a regional

planning commission region. Regarding the second provision, we have already determined that it

does not affect our interpretation of the land-line fee provision.

The third and final set of provisions cited by Frisco in support of its position that non-

participating home-rule municipalities are not included within the funding system of the statute are

drawn from Chapter 772 of the health and safety code. Chapter 772 addresses local, rather than

state, administration of emergency communications. The first provision cited by Frisco states that

“[the board of managers of an emergency communication district created under Chapter 288] may

impose a 9-1-1 emergency service fee on service users in the district.” Id. § 772.314(a) (West 2003)

(emphasis added by Frisco). The second provision states that “[t]he [9-1-1 emergency service] fee

must have uniform application and must be imposed in each participating jurisdiction.” Id.

§ 772.314(b) (emphasis added by Frisco). However, the provisions do not apply to this case.

Chapter 772 establishes local ECDs in counties with populations of more than 20,000 and

allows certain ECDs to elect not to participate in the State’s system. See id. §§ 772.301-.329

(West 2003 & Supp. 2008); Lubbock Emergency Communication Dist., 1999 Tex. App. LEXIS

7784, at *3. When the ECDs choose not to participate, they can impose user fees directly on their

11
residents, and the state-imposed fees do not apply. As we have already stated, Frisco is not an ECD.

Thus, the cited provisions do not apply to Frisco or otherwise affect our analysis of the land-line fee

provisions in Chapter 771, which do apply to this case and which by their plain language do not

except non-participating home-rule municipalities from paying the fee.

For the proposition that the Commission has no statutory authority to impose the land-

line fee on non-participating home-rule municipalities, Frisco cites another set of provisions. The

provisions state:

[T]he commission may impose a [land-line] fee on each local
exchange access line or equivalent local exchange access line,
including lines of customers in an area served by an [ECD]
participating in the applicable regional plan. Tex. Health & Safety
Code Ann. § 771.071(a) (emphasis added by Frisco).

The commission may set the [land-line] fee in a different amount in
each regional planning commission region based on the cost of
providing 9-1-1 service to each region. Id. § 771.071(c) (emphasis
added by Frisco).

The [land-line] fee does not apply to an [ECD] not participating in the
applicable regional plan. A customer in an area served by an [ECD]
not participating in the regional plan may not be charged a fee under
this section. Id. § 771.071(d).

Frisco asserts that the three provisions limit the Commission’s authority for assessing the land-line

fee to those entities participating in the State’s system. We disagree. The first provision merely

states that the local exchange access lines on which the Commission may impose the fee include

ECDs participating in the State’s system, not that they are limited to them. The second provision

allows the Commission to set the land-line fee at a different amount in each regional planning

12
commission region but does not specifically address non-participating ECDs or home-rule

municipalities within those regions. Regarding the third provision, we have already determined that

the plain language excepts only non-participating ECDs, not non-participating home-rule

municipalities, from paying the land-line fee, and we decline to read additional language into the

provision. Thus, none of the provisions limits the Commission’s authority for assessing the land-line

fee to entities participating in the State’s system.

C. Whether Trial Court’s Ruling Creates Absurd Result

In its second argument, Frisco contends that the trial court created an absurd result

when it held that a home-rule municipality can choose not to participate in the State’s system but

must nevertheless pay the land-line fee. In support of its position, Frisco cites Fleming Foods of

Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999), for the proposition that courts should not

construe a statute in a way that produces an absurd result. We disagree that the trial court’s

interpretation creates a result so absurd that the legislature could not have intended it. Allowing

entities to withdraw from the State’s 9-1-1 system while also refusing to exempt them from the 9-1-1

fees could merely reflect the legislature’s intent to create a disincentive for entities to withdraw from

the system. The statute represents an ambitious, statewide system that relies on funding received

from throughout the state. If Frisco and other local entities were to withdraw from the State’s system

and take some of the State’s funding with them, the system would be placed in jeopardy. Thus, it

is reasonable to conclude that the legislature created the statutory scheme as it did with the intention

of dissuading local entities from withdrawing from the system. Further, even if we were to assume

that the legislature’s silence as to non-participating home-rule municipalities in the exclusionary

13
provision could have been an oversight or mistake, it is the legislature, not the courts, that must

correct that mistake. See Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004) (“It is at least

theoretically possible that legislators—like judges or anyone else—may make a mistake. That does

not give us the power to legislate to fill any hiatus [the legislature] has left.”). We therefore reject

this argument.

D. Whether Trial Court’s Ruling Results in Double Taxation

In its final argument regarding the land-line fee, Frisco asserts that the trial court’s

interpretation of the statute will result in double taxation for Frisco’s residents. Specifically, Frisco

points out that after withdrawing from the State’s system and creating its own 9-1-1 system, it would

need to impose its own land-line fee on its residents in order to fund its system. Thus, Frisco

contends, its residents would have to pay both the State’s land-line fee and Frisco’s land-line fee in

the event of Frisco’s withdrawal, amounting to double taxation. However, in Frisco’s hypothetical,

it would be Frisco, not the statute, creating a new tax for 9-1-1 services. The statute imposes one

land-line tax on all state residents with only certain specified exceptions. If Frisco stays within the

State’s system, its residents are taxed only once. It is only if Frisco withdraws from the system that

it must impose a second tax on its residents. In that case, Frisco would choose to tax its residents

for a service that the residents could otherwise obtain from the State. Because it would be Frisco,

not the statute, imposing a second tax on Frisco’s residents in the event of Frisco’s withdrawal from

the State’s system, we reject Frisco’s double-taxation argument.

14
 E. Conclusion

Because the plain language of the statute does not except non-participating home-rule

municipalities from paying the land-line fee, and because none of Frisco’s arguments persuades us

to make a different determination, we conclude that the trial court did not err in holding that the

Commission could continue to assess the land-line fee on Frisco’s residents after Frisco withdrew

from the State’s system. We therefore overrule Frisco’s first issue.

The Wireless Fee

In Frisco’s second issue, it challenges the trial court’s ruling that even after Frisco

withdrew from the State’s system, it still would not be entitled to a portion of the wireless fee

collected by the Commission. In support of its challenge, Frisco raises two arguments, contending

that it should still receive a portion of the wireless fee because: (1) the Commission already

distributes a portion of the fee to other non-participating entities, and (2) simple fairness, coupled

with the Equal Protection Clause, demands it. We address each argument in turn.

A. Commission’s Distribution of Wireless Fee to Non-Participating Entities

Frisco first asserts that the Commission’s distribution of a portion of the fee to non-

participating ECDs and non-participating home-rule cities compels the Commission to distribute a

portion of the fee to Frisco after Frisco withdraws from the state system. In support of its assertion,

Frisco points to a September 2007 wireless fee distribution report that lists the wireless fees

distributed to “9-1-1 Emergency Communication Districts” and “Home Rule Cities.” Although

Frisco implies that the “Home Rule Cities” referenced in the report are not ECDs, the Commission

15
contends the opposite. As evidence for its assertion, the Commission references an affidavit

prepared by Mallett, the Commission’s executive director, in which Mallett states that the

“Home Rule Cities” referenced in the distribution report are in fact ECDs established under

section 771.001(3)(A) of the Texas Health and Safety Code.7 In his affidavit, Mallett further

explains that the Commission and members of the 9-1-1 community “historically referred to

§ 771.001(3)(A) ECDs by the terms ‘Home Rule Cities’ or ‘HRCs’ because, of the 27 entities fitting

the definition, all but one are indeed home-rule cities. The exception is the Dallas County Sheriff’s

Department, which is not a home-rule city but does fit the definition of an ECD

under § 771.001(3)(A).”

Frisco’s argument requires us to construe the provisions of the statute addressing the

wireless fee. The provisions state:

To provide for automatic number identification and automatic
location identification of wireless 9-1-1 calls, the commission shall
impose on each wireless telecommunications connection a 9-1-1
emergency service fee. Tex. Health & Safety Code Ann.
§ 771.0711(a).

Not later than the 15th day after the end of the month in which the
money is collected, the commission shall distribute to each [ECD]
that does not participate in the state system a portion of the money
that bears the same proportion to the total amount collected that the
population of the area served by the district bears to the population of
the state. Id. § 771.0711(c).

7
Section 771.001(3)(A) defines an ECD as “a public agency or group of public agencies
acting jointly that provided 9-1-1 service before September 1, 1987, or that had voted or contracted
before that date to provide that service.” Tex. Health & Safety Code Ann. § 771.001(3)(A)
(West 2003).

16
In reviewing the plain language of the statute, as is required by the rules of statutory construction,

we note that the Commission’s distribution of wireless fees to all non-participating ECDs is

consistent with the plain language of section 771.0711(c), which states that the Commission must

distribute a portion of the wireless fee “to each [ECD] that does not participate in the state system.”

See id. Further, as we previously noted, the fact that the legislature referenced home-rule

municipalities in other provisions of the statute but not the provisions here lends additional support

to our interpretation. See Fireman’s Fund, 13 S.W.3d at 769. Because the plain language of the

statute includes only non-participating ECDs in the wireless-fee distribution, and because there is

no dispute that Frisco is not an ECD, we reject Frisco’s argument.

B. Equal Protection Clause

In its second argument regarding the wireless fee, Frisco asserts that “simple

fairness under the law, bolstered by the requirements of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution,” demands that the Commission distribute

a portion of its wireless fee to Frisco after Frisco’s withdrawal from the State’s system. Aside from

a general reference to the equal-protection clause, Frisco does not cite to any legal authority in

support of its argument, nor does it explain how the Commission’s position allegedly violates the

equal-protection clause. Instead, Frisco merely explains that the wireless fee must be assessed

against all wireless connections because wireless customers are mobile, necessitating the possible

provision of 9-1-1 services to them outside the area in which they pay their land-line fee, and then

contends that Frisco should receive a portion of the wireless fee after it withdraws from the State’s

system because it will still need to provide 9-1-1 services to wireless customers traveling within its

17
jurisdiction. Frisco further asserts that it would be the only entity in the state not to receive a portion

of the wireless fee if it withdrew from the State’s system and that its receipt of a portion of the

wireless fee “makes sense” and is the “only fair result.” Yet, regardless of how many ways Frisco

might phrase its arguments, none of Frisco’s contentions changes the plain language of the statute

or causes us to be willing to read additional language into the statute. The statute provides that the

Commission must distribute a portion of the wireless fees to non-participating ECDs. Frisco is not

an ECD and is therefore not entitled to a portion of the fees. Whether the provision is fair or makes

the most sense are questions for the legislature to consider, not the courts. See Hughes, 246 S.W.3d

at 629 (“[O]ur standard for construing statutes is not to measure them for logic [but to] construe

[them] to effectuate the intent of the [l]egislature, with the language of the statute as it was enacted

to be our guide unless the context or an absurd result requires another construction.”) Accordingly,

we reject Frisco’s argument and overrule its second issue.

CONCLUSION

Because we conclude that the trial court did not err in granting partial summary

judgment for the Commission, we affirm the trial court’s order.

___________________________________________

Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: July 9, 2009

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