Untitled Texas Attorney General Opinion

December 30. 1986 Eonorable Terra1 R. Smith Opinion No. JM-605 Chairman Criminal Jurisprudence Committee Re: Whether a rural fire pre- Texas Rouse of Representatives vention district must continue P. 0. Box 2910 to provide services to and Austin, Texas 18169 888688 taxes against residents of an area recently annexed by a municipality Dear Representative Smith: You ask two questions about the status of an area of a rural fire prevention districts annexed by a city. These questions, in reverse order, are as follows: 1. What proce.dures are necessary to remove a full-purpose municipal annexation area from the ‘* tax rolls and obligations of a rural fire preven- tion district created prior to September 1, 1985? 2. Must a rural fire prevention district created prior to September 1, 1985, assess taxes, provide direct services and be liable to residents of a recently annexed area into an article 1269m, V.T.C.S., civil service municipality which was within the boundaries of the fire district prior to full-purpose annexatioa of the area into the municipality? Article 2351a-6, V.T.C.S., provides for creating and governing rural fire prevention districts. Set Tex. Coast. art. III, 148-d (authorizing legislature to provide for establishment and creation of rural fire prevention districts). A 1985 amendment to article 23510-6, V.T.C.S., added provisions dealing with the inclusion in a rural fire prevention district of territory in the corporate or extraterritorial jurisdiction of a city. The enactment of Senate Bill No. 783 amended section 8A of article 2351a-6. V.T.C.S., and added sections 8B and 14b to article 2351a-6, V.T.C.S. See Acts 1985, 69th Leg., ch. 93, at 525. Section 8A now requires the zissioners court to determine that the proposed district would provide certain public benefits within any extraterritorial jurisdiction of a city that it proposes to encompass. as well as any area within the city limits. Section 8B. a new provision, provides that territory within a city or p. 2702 Honorable Terra1 R;-Smith - Page 2 (m-605) its extrateqitorial jurisdiction may not be.included in a rural fire prevention district. unless the governing body of the city gives written consent to the inclusion. V.T.C.S. art. 2351a-6, §8B(a). If the governing body does not consent, voters and property owners of the territory proposed for inclusion in -the district may petition the city goverument to provide it; -with.. f-ire protection. Id. §8B(b). The failure.or,refusal of the governmental body to provide fire protection constitutes consent to inclusion of the area in the proposed district. Id. - 588(c). Section 14b is a new section which provides as follows: _ .~. See: 14b. (a) The governing body of a city .‘: that has an area .within its corporate or extra- territorial jurisdiction included within a rural fire prevention district may, on agreeing to provide fire protection to the srea as provided by Section 8B of this Act . . . notify the secretary of the board of fire commissioners in writing that the area is excluded _ f ram 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 axes by-order from the district, and .redefine the district~s boundaries. The bill analysis of Senate Bill No. 783 states of section 14b: This section provides that if .a~city has territory within a district and the city agrees to provide fire protection to the territory . . . the governing body shall notify the secretary of ‘the board of fire cowsissioners in writing of this change. On receipt of this notice, the board shall cease to provide service. Bill Analysis to S.B. No. 783. prepared for Aouse Committee on Urban Affairs, filed in Bill File to S.B. No. 783, Legislative Reference Library. In Attorney General Opinion JM-453 (1986) this office determined that section 14b applies to the removal of territory from rural fire prevention districts created before September 1, 1985. See Attorney General Opinion JX-453 (1986). See also Attorney Genex Opinion .I&591 (1986). Attorney General Opinion JM-453 (1986) also considered how the removal of territory from arural fire-~ prwentio=.district would affect .its tax* rolls and obl~igations. The opinion noted that except for the issuance of bonds and notes, the district could contract only that indebtedness payable out of excess funds on hand or current revenues. for the year. Thus, the obligations at issue were p. 2703 Eonorabls Terra1 R. S&h - Page 3 (JM-605)** obligations to bondholders, ObligatiOnS protectid by the contract clauses of both the federal and Texas Constitutions. See U.S. Const. art. 1, 510, cl. 1; Tex. Const. art. I, 516; Attorney Feral Opinion JM-453 (1986) and authorities cited therein. Legislation which removes the source of repayment tu -bondholders without substituting something of equal efficacy way impaik the obligation of contract and violate the coustitution. - City of- Aransas Pass v. Keeling. 247 S.W. 818, 821 (Tex. 1923); Burns v. Dilley Couoty Line Independent School District, 295 S.W. 1091, 1094 judgment adopted (Tex. Cosm’n App. 1927); Attorney General Opinions J’M-453 (1986); O-1205 (1939). Attorney General Opinion JU-453 concluded that an area removed from a rural fire district would still be required,to pay its pro rata share of such obligstions existing when the territory is’withdrawn from the district. It stated as follows: Article 2351a-6 contains no express provision for payment of the excluded territory’s pro rata share of an existing district indebtedness. Cf. Water Code 5553.268, 54.731 -(on payment of pro rata share of existing district indebtedness. excluded territory and its taxpayars are released from liability to the district and payment of taxes). It is our opinion that article 2351a-6, as recently. amended to authorize the exclusion of a city from a district, is not facially unconstitu- tioual . In particular situations where the obligation of contract to bondholders would be impaired, the statute may be unconstitutionsl as applied without the col2ectiou of taxes from the excluded area to pay its pro rata share of obliga- tions to bondholders that are in existence at the time the city is withdrawn from the district. See Attorney General Opinion MW-337 (1981). - Attorney General Opinion.JM-453 (1986) at 4. The quoted holding of Attorney General Opinion JM-453 is applicable where the territory detached from the rural fire prevention district constitutes less than the entire city. Thus, Attorney General Opinion JM-453 provides the answer to your first question. See, e.g., art. 2351a-6, 1119-22. : Our answer to question one also provides a partial answer to question two, which asks as follows: . Must a rural fire prevention district created prior to September 1, 1985, assess taxes, provide direct services -and be liable to residents of a recently annexed area into a 1269m. V.T.C.S., civil service municipality which was within the p. 2704 Eonoxable Terra1 k.. Smith - Page 4 (JKA605k boundar,ies .of tlae fire distric’t prtot.. to full- purpose-‘annexation of the area into the rmmici- palsty? ken if -thedfty government. . rexovu the recently annexed _ area -. . frox the. rura&; fire preVentSor&. dlst+ct, its pro 3ata share of the disirict!‘a .oblfgatj.ons mm.+ ,be firlfilled. After rewvxl, however, the board of fiir’~qommlda~ionerx of tie. ‘district “shall cesse to provide fyrther service ,to t&area. ~. . .” V.T.C.S. art. 2351a-6, S14b. . ... In tie ‘event that...the city does’ not r-e. ,the recently annexed area from .the.firc’diatrict,.,that area ViU continue to be,part of the dia,trfcF~:,. Article ,, ‘1269ia,.: ,V.T.C.S., eatablfshea a firemen’s and polickken’~~ civil senrice in cities irlthin the statutory description, ;-~.but it doas not deal with the firefighting responsibilitfea of those cities. ‘Tbe.diatrict~wlll continue to have tha same powers and duties tow&d thenresidents of the annaxed area axe it had prior to the annex- ation. A city, with;fta broad statutory police powers, may overlap in terrkory .eth a special purpoae:.municipu~ entity, such as a rural fire’ proteciion district. City of Pelly v..Earria County Water Control 6 lmprovwent District No. 7, 198 S.U.2d 450 (Tex. 1946); Attorney General Opinioa J&400 (1985). ‘-~ B C.M M A. R Y - When .a mini~ipality- annexes territory within a rural fire :preventlon district crested prior to .’ Skptembsr .l; 1985, the territory remains part of then district- unless the city removes it .from the diptrict , pursuant to section 14b of ‘article 2351ak6, V;TIC.S. men a samicipality removes an annexed iafea:from the district. the district is to cease providing services to that &ea. AttorneyGenera.l of Tbxas JACg HIGDTO!& First Aaaiataat .Attorney General MARYKEUER - txecutive Aassistant Atiomey Genera1 RICK GILPIlo Chsirman. Opinion‘ Cmsnittee Prepared by Susan L. Garrison Assistant Attorney General p. 2705