Untitled Texas Attorney General Opinion

@ffice of tlje Rlttornep QSeneral
iState of ZBexa8
DAN MORALES
ATTORNEY
GENERAL December 21,199s

Mr. James D. Goerke Opinion No. DM-494
Executive Director, Advisory Commission
on State Emergency Communications Re: Whether an emergency communications
333 Guadalupe Street, Suite 2-212 district may unilaterally withdraw from
Austin, Texas 78701-3942 participation in a regional 9-l - 1 plan under Health
and Safety Code chapter 77 1 and related questions
(RQ-1021)

Dear Mr. Goerke:

You request an opinion from this office regarding the provisions of chapter 771 of the Health
and Safety Code (the “act”). You first ask whether an emergency communications district as defined
by section 771.001(3)(A) of the act that elected to participate in a regional 9-l-l service’ plan may
unilaterally withdraw from the plan. Because the act expressly provides that a district’s participation
in a regional plan is optional, we conclude that it may so withdraw. You next ask whether the
district or the Advisory Commission on State Emergency Communications (the “advisory
commission”) determines when the withdrawal is effective. Based on our prior answer, we conclude
that the withdrawal is effective on the date determined by the district. Finally, you ask whether the
advisory commission must distribute a portion of the wireless 9-l-l emergency service fee
authorized by section 771.071 l(a) of the act to a district that withdraws from a regional plan.
Because the act requires distribution of a portion of the fee to a district that does not participate in
a regional plan, we conclude the advisory commission must distribute a portion of the fee to a
district that withdraws from a plan.

Before discussing your specific questions, we briefly review the relevant parts ofthe act. The
legislature adopted the act in 1987 to implement a statewide 9-l-l emergency telephone number
service.* The act requires the advisory commission to administer implementation of the statewide
9-l-l service. The advisory commission is directed, among other things, to approve regional plans

“I ‘9-1-I service’ means a telecommunication service that provides the user of the public telephone system the
ability to reach a public safety answering point by dialing the digits 9-l-l.” Health & Safety Code $ 771.001(6).

?SeeActofMayZl, 1987,70thLeg., RX, ch. 236,1987Tex. Gen. Laws 1541,1546;HouseComm. onState
Affairs, Bill Analysis, H.B. 911,7Oth Leg. (1987) (Purpose).
Mr. JamesD. Goerke - Page 2 (DM-494)

for establishing and operating a 9-l-l service, and to allocate money to prepare and operate the
regional plan~.~

An emergency communications district (“district”),4 may choose to participate in a regional
plan for 9-l-l service for the region in which the district is located on approval of the advisory
commission.5 A regional plan is developed and submitted for the advisory commission’s approval
by each regional planning commission established under Local Government Code chapter 391 (the
“regional commission”)6 for the region the regional planning commission serves.’ Participation in
the plan does not affect the organization or operation of the district except that the district may not
collect an emergency communication or other special fee for 9-l-l service unless permitted by the
act.*

The act authorizes the advisory commission to impose certain fees to finance the regional
9-l-l service plans. The advisory commission may impose a 9-l-l emergency service fee
on each local exchange access line or equivalent local exchange access line.’ The emergency fee is

‘Health&Safety Code $ 771.051(a)(l), (3), (5)

‘Health and Safety Code section 771.001(3) states that an “[e]mergencycommunicationdistrict”means:

(A) a public agency OI group of public agencies acting jointly that provided 9-l-l
service before September 1,1987, OI that had voted or contracted before that date to provide
that service; 01

(B) a district created under Subchapter B, C, or D, Chapter 772 [of the Local
Government Code]. [Footnotes omitted.]

Section 771.001(7) states fhat “public agency,” in turn, means:

the state, a municipality, a county, an emergency comnnmication district, a regional planning
commission, an appraisal district, or any other political subdivision or district that provides,
participates in the provision of, 01 has authority to provide fire-fighting, law enforcement,
ambulance, medical, 9-l-1, 01 other emergency services.

‘Health & Safety Code 5 771.058(b).

41d. 5 771.001( 10) (definition of regional planning commission).

‘Id. 5 771.055,

81d. 5 771.058(c).

91d. 5 77 1.07 l(a). These fees are delivered to the regional planning commissions and distributed to public
agencies in the county for use in providing 9-l-l service. Id. 5 771.071(e), (0.

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Mr. James D. Goerke - Page 3 (DM-494)

not applicable to and may not be imposed in a non-participating district.“’ In addition to the 9-l-l
emergency service fee, the advisory commission may impose a 9- I- 1 equalization surcharge on each
customer receiving intrastate long-distance service, including customers served by a non-
participating district.” Finally, in this past legislative session, the legislature authorized the advisory
commission to impose a 9-l-l emergency service fee on each wireless telecommunications
comtection.‘2 Moneys collected pursuant to this authorization are distributed by the advisory
commission to each regional planning commission and district in proportion to the population served
by the commission or district and may be used only for services related to providing 9-l -1 service.”

Having reviewed the relevant portions of the act, we turn back to your specific questions.
We understand from briefs submitted by the advisory commission and the City of Corpus Christi
(the “city”) that the circumstances giving rise to your questions are as follows: The city has provided
9-l-l service throughout the municipality since November 1985, and is therefore an emergency
communication district described in section 771.001(3)(A) of the act, which is not required to, but
may, participate in a regional plan to provide 9-l-l service. The city chose to participate in a
regional plan developed by the Coastal Bend Council of Governments (“CBCOG”) for the Coastal
Bend Region (the “Coastal plan”) by a resolution adopted on July 7, 1988. The advisory
commission approved the Coastal plan, which included the city, on January 10,199O. On July 31,
1990, the city entered into an Interlocal Cooperation Agreement with CBCOG (the “interlocal
agreement”), extending initially through December 31, 1995, “to provide for the administration of
9-l-l service in the CBCOG region as authorized by Article 1432(f) [,] Sec. S(b) [Health and Safety
Code section 771.055(b)] and Article 4413(32c) [Government Code chapter 7911 V.T.C.S.“‘4 The
city now desires to withdraw from participation in the Coastal plan effective January 1, 1998, and
has requested that the advisory commission cease collecting the 9- I- 1 emergency service fee within
the city effective June 1, 1998.

Because the act does not specifically authorize a district to terminate its participation in a
regional plan, you first ask whether the city as an emergency communication district that elected to
participate in a regional 9-l-l plan may later unilaterally withdraw from the plan. No Texas case
or attorney general opinion has addressed this question. Several principles, however, guide us in
answering this question of first impression. Our ultimate purpose must be to effect the legislature’s

“Id. $ 771.071(a),(d)

“Id. g 77 1.072(a). A portion of the equalization surcharges collected is allocated by the advisory commission
to the Texas Department of Health and to each planning commission or its designated public agency to carry out the
regional plans. Id, $771.072(d), (e). The balance of the surcharge is appropriated to the advisory commission to fund
approved regional plans and regional poison control centers and to carry out its duties under the act. Id. 5 77 1.072(f).

‘*Zd. 5 771.0711(a).

“Id. 5 771.0711(c)

“Interlocal Cooperation Agreement at 1, July 3 1, 1990

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Mr. James D. Goerke - Page 4 (DM-494)

intent.15 The primary indicator of legislative intent is the statute’s literal language because it best
indicates the legislature’s intent at the time it adopted the statute. I6 The existence or nonexistence
of the particular intent of a statute may be inferred from the fact that the statute does not contain a
certain provision. ” Lastly the consequences of a particular construction may be considered in
construing a statute. I* Apilication of these principles leads us to conclude that the legislature
intended a district’s participation in a regional plan to be optional, which necessarily implies that
that a district may withdraw from a regional plan when it no longer desires to participate.

Looking at the literal language of the act, we observe that the act expressly provides for a
district’s optional participation in a regional plan. Section 771.058(a) provides that a county of a
population of 120,000 or less or another public agency located in the county is not required to
participate in a regional plan but may choose to do so. Similarly subsection (b) provides that a
district may choose to participate in the regional plan. By definition, optional participation implies
the authority not to participate in a regional plan if a district does not so desire.19

A district does not lose its authority to choose not to participate in a regional plan by its
initial participation in theplan. Section 771.058(c) expressly provides thatparticipationin aregional
plan does not affect the organization or operation of a district except that it may not collect the
emergency communication fee or other special fee for 9-l-l service not permitted by the act.
Participation in a regional plan does not change a district’s identity or authority. The only express
limitation on a district’s authority resulting Tom the participation is that the district may not collect
9-l-l service fees not permitted by the act. There are no other limitations. Thus, a district’s
authority to choose not to participate in a plan does not change by its participation.

Significantly, there is no provision expressly prohibiting a district from terminating its
participation in a regional plan or stating that participation in a plan is perpetual. If the legislature
intended a district’s participation to be perpetual, we believe it would have so provided and made
that intention clear.20 It has not done so and we cannot read into the act such an onerous restriction

‘5Texas Water Comm’n Y Brushy CreekMun. Util. D&t,, 917 S.W.Zd 19,21 (Tex. 1996).

‘bEldridge Y. State, 940 S.W.Zd 646,652 (Tex. Grim. App. 1996),

“State v. Kaiser, 822 S.W.Zd 697,700 (Tex. App.--Fort Worth 1991, tit ref d); see also State v. Broaddus,
952 S.W.Zd 598, 601 n.4 (Tex. App.--Houston [14th Dist.] 1997, no writ).

‘“Gov’t Code 5 311.023(5)

?See Gov’t Code 5 3 11 .Ol l(a) (“Words and phrases shall be read in context and construed according to rules
of grammar and cmnnmn usage.“); WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 829 (deftig “optional” as
“involving an option” and “not compulsory”); id. (defining “option” as “an act of choosing,” “the power or right to
choose: freedom of choice”).

Yiee Eldridge, 940 S.W.Zd at 652 (primary indicator of legislative intent is stahlte’s literal language); Kaiser,
(continued...)

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Mr. James D. Goerke - Page 5 (DM-494)

based on the legislature’s failure to expressly provide that a district may unilaterally withdraw from
a regional plan as the advisory commission argues. Construing the act to prohibit a district from
withdrawing from a regional plan would require adistrict to continue participating when it no longer
desires or considers it beneficial to its residents to do so. *’ If the legislature had intended such a
result, it would have expressly so provided.

Given our conclusion that the act impliedly authorizes a district to withdraw from a regional
plan, we do not address the city’s arguments that its participation in and withdrawal from the Coastal
plan is governed by the interlocal agreement with CBCO@* or by the city’s status as a home rule
city.

You next ask whether the advisory commission or a district determines the effective date of
a district’s withdrawal from a regional plan given the act’s silence on the subject. Based on our
conclusion above that optional participation means that a district may terminate its participation in
a regional plan when it no longer desires to participate in the plan, it follows that the effective date
of its withdrawal must be the date determined by the district. Determination by any other entity
would allow that entity to dictate the duration of a district’s participation. This result would render
meaningless the statutory provision for a district’s optional participation. Presumably, a
withdrawing district will designate an effective withdrawal date after conferring with the advisory
commission and the regional commission that allows the parties to responsibly address those matters
impacting on emergency 9-l-l service in the region and in the state.

Finally, you ask whether the advisory commission must distribute a portion of the wireless
9-l-l service fees to an emergency communication district, “which once participated in a regional
plan but is no longer participating in a regional plan[.]” Because the statute expressly requires it,
we conclude in the affirmative.

Section 771.071 I(c) provides that within 15 days of the date of collection of the wireless 9-
l-l service fees

the advisory commission shall distribute to each regional planning
commission and emergency communication district a portion of the money

822 S.W.2d at 700 (existence 01 nonexistence ofparticular intent may be inferred from fact that statute does not contain
certain provision).

“See Gov’t Code 5 311.023(5) (court may consider consequence of a particular construction),

%I any case, this offke does not construe 01 interpret contxxts. See, e.g., Attorney General Opinions DM- 192
(1992) at 10, JM-697 (1987) at 6. We note, however, that the interlocal contract plainly states that the contract is for
the administration of and not for participation in the Coastal plan. See Interlocal Contract Agreement at 1; Health &
Safety Code § 771. 055(b) (regional plan may be administered by emergency communication district, municipality,
county, or combination of these, or by other means as determined by regional commission).

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Mr. James D. Goerke - Page 6 (DM-494)

that bears the same proportion to the total amount collected that the
population of the area served by the commission or district bears to the total
combined population of the areas served by a commission or district.

Unlike the emergency service fee that the advisory commission may only impose in geographical
areas participating in a regional ~lan,*~the advisory commission is authorized to collect the wireless
9-l-l service fee statewide.z4 However, the advisory commission must remit to the regional
commissions and the districts an amount proportional to the population served by the regional
commission and the districts. Population of a district that is no longer participating in a regional
plan is, of course, no longer served by the regional commission but by the district. Therefore, by
terms of the statute, the district is entitled to that portion of the moneys collected that is proportional
to the population the district serves.

z3.SeeHealth & Safety Code § 771.071(a)

*‘Seeid. $771.0711(a).

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Mr. James D. Goerke - Page 7

SUMMARY

Chapter 771 of the Health and Safety Code impliedly authorizes an
emergency communication district that elected to participate in a regional
plan for 9-l-l service to unilaterally withdraw from the plan. Withdrawal
from a plan is effective on the date determined by the district. The Advisory
Commission on State Emergency Communications must distribute a portion
ofthe wireless 9-l-l emergency fees collected to the district that withdraws.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH .I. SHIRLEY
Chair, Opinion Committee

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