Untitled Texas Attorney General Opinion

The Attornqr General of Texas Dl%:ember 20, 1985 JIM MAlTOX Attorney General Supreme Court Building HonorableGary Thcmpson OpinionNo. ~~-400 P. 0. Box 12548 Austin, TX. 78711.2543 chairman 512/475-2501 Committeeon County Affairs Re: Whether a rural fire prevention Telex 9101S761387 Texas House of Representatives district may assess taxes against Telecopier 512/475.0288 P. 0. Box 2910 residents of a municipalitywhich Austin, Texas 78769 was incorporatedafter the creation 714 Jackson, Suite 700 of the district Dallas, TX. 752024506 2141742.8944 Dear RepresentativeThompson: You inform us that in 1983 the Wimberley Rural Fire Prevention 4824 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 District was formed pursuant to article 2351a-6,V.T.C.S. The voters 915I533.3484 approveda three cent per hundred dollar maximum tax for the district. In August of 1984, an area within the rural fire preventiondistrict was incorporated ,nnder article 1133, V.T.C.S., as the town of 1001 Texas, Suite 700 Woodcreek. You vi;shto know whether the incorporationremoves the Houston. TX. 77W2.3111 town of Woodcreek from the taxing power of the rural fire prevention 713n235Sa6 district. 808 Broadway, Suite 312 Article III, section 48-d of the Texas Constitutionauthorizes Lubbock, TX. 79401-3479 the legislature i:o provide for the establishment of rural fire 8061747.5233 prevention districts with taxing power. Article 2351a-6, V.T.C.S., was enacted pursurtutto this authority. It establishesa procedure 4309 N. Tenth, Suite S for calling an election to decide whether a rural fire prevention McAllen, TX. 7SW1-1685 district shall be ENarmed in a stated area. The commissionerscourt of 512BS2.4547 the county where the proposed district will be located must hold a hearing on the pet:Ltioufor election. If the court determines that 200 Maln Plaza, Suite 400 organizationof the districtwould be feasible and would benefit the San Antonlo. TX. 78205.2797 land included therein, it is to grant the petition for election. 51212254191 V.T.C.S. art. 235:.a-6,§6. Where the proposed district includes an incorporatedcity, the court must make a separate determinationthat An Equal Opportunity/ the city will be benefitedby the district. Id. 98(a). In addition, Afflrmatlve Actlon Employer the majority of electors residing in the muzipality and partici- pating in the elect:Lon to establishthe districtmust vote in favor of it. &I& Thus, if the voters of an existing municipality are satisfiedwith thG!fire protection their city offers, they need not join the proposed rural fire preventiondistrict. They may, if they wish, vote to be included in the district and gain additional fire protection from the district as well as become subject to the additionaltaxes c~,llected to fund the district'soperation. Article 2351a-6 does not expressly deal with the status of a municipality incoqorated within the boundariesof a rural fire p. 1830 HonorableGary Thompson- I'ege2 (JM-400) prevention district after the district is established. It is well established that two municipal corporationscannot have coexistent control over the save tewitory and contemporaneouslyexercise the seme goverumental powers in it. City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tm. Civ. App. - Galveston 1939, writ ref'dr (onecity may not annex territory which is already part of an incorporatedcity). A city, with its broad statutorypolice powers, may overlap in territory ,vith a special purpose municipal entity investedwith limited powers, even though some of their purposes are the same. City of Pelly vrHarris County Water Control & Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946) (city may annex territory despite fact that It is located in a water control and improvement district or a water consc:evation district); State ex rel. Grimes County Taxpayers Associat:&n v. Texas Municipal Power Agency, 565 S.W.2d 258 (Tex. Civ. App. - Houston [lst Dist.] 1978, no writ). Article 2531a-6,-section8(a), expresslyrecognizesthat citiesmay be includedin a fire preventiondistrict. We believe that a city which incorporateswithin an existing rural fire prevention district remains part of the district, in the absence of statutory provision to the contrary. See 16A McQuillin, The Law of Municipal Corporations045.02 (3d cd. 19m; cf. People v, w, 185 N.E.2d 174 (IrL. 1962) (detailed statuto~provisions governing allocation of pcvers between fire protection district and city). The voters who decide to incorporateare on notice that they reside in a fire protectlou district. Unlike the voters in a city which exists before the di.strictis established,they do not need a special procedure like that in section 8(a) of article 2351-6a to avoid additioual tax liabi.lityfor fire prevention services already providedby a city. The tovn of Woodcreek remains in the Wimberley Fire Protection District after its incorpx:ation. City of Pelly v. Harris County Water Control 6 Improvement_ District No. 7, supra. Property in the tovn of Woodcreek is accortlinglysubject to taxationby the district. See - V.T.C.S. art. 2351a-6, 010. SUMMARY The tovu of Woodcreek, which was incorporated within the bounds.riesof the Wimberley Rural Fire PreventionDistrict subsequentto creation of the district, remains part of the district. Property within Woodcreek is subject to taxation by the rural fire preventiondistrictpursuant to section 10 of article 2351s-6,V.T.C.S. L-J Very truly yours A JIM MATTQX Attorney General of Texas p. 1831 HonorableGary Thompson - Ia,ge3 (m-400) JACK HIGHTOWER First AssistantAttorueyGmeral l4AP.Y KELLER ExecutiveAssistantAttorneyGeneral ROBERT GRAY SpecialAssistantAttorneyG,eneral RICK GILPIN Chairman,Opinion Committee Preparedby Susan L. Garrison AssistantAttorneyGeneral p. 1832