DAN MORALES

ATTORNEY GENERAL 

## @ffice of tlje Rlttornep QSeneral iState of ZBexa8 December 21,199s Mr. James D. Goerke Executive Director, Advisory Commission on State Emergency Communications 333 Guadalupe Street, Suite 2-212 Austin, Texas 78701-3942 Opinion No. DM-494 Re: Whether an emergency communications district may unilaterally withdraw from participation in aregional 9-l -1plan under Health and Safety Code chapter 771andrelated questions (RQ-1021)
Dear Mr. Goerke: You request anopinion from this office regarding theprovisions ofchapter 771oftheHealth and Safety Code (the “act”). You first askwhether anemergency communications district asdefined by section 771.001(3)(A) ofthe actthat elected toparticipate in aregional 9-l-l service’ plan may unilaterally withdraw from theplan. Because the act expressly provides that adistrict’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 thewithdrawal iseffective. Based on ourprior answer, weconclude 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 771.071l(a) of the act to a district that withdraws from a regional plan. Because the act requires distribution of aportion 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 aplan. Before discussing your specific questions, webriefly review therelevant 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 toparticipate in aregional 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 forthe region the regional planning commission serves.’ Participation in the plan does not affect the organization or operation ofthe 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]mergency communication

district” means: (A) a public agency OI group of public agencies acting jointly that provided 9-l-l service before September 1,1987, OIthat 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, amunicipality, acounty, an emergency comnnmication district, aregional planning commission, an appraisal district, or any other political subdivision or district that provides, participates in the provision of, 01has 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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not applicable to and may not be imposed in anon-participating district.“’ In addition to the 9-l-l emergency service fee, the advisory commission may impose a9-I- 1equalization surcharge on each customer receiving intrastate long-distance service, including customers served by a nonparticipating district.” Finally, inthispast 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 toeach regional planning commission anddistrict inproportion tothepopulation served by the commission ordistrict andmay be used only for services related toproviding 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 toyour questions areasfollows: 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 asauthorized by Article 1432(f) [,]Sec. S(b) [Health and Safety Code section 771.055(b)] and Article 4413(32c) [Government Code chapter 7911V.T.C.S.“‘4 The city now desires to withdraw from participation in the Coastal plan effective January 1, 1998, and hasrequested that the advisory commission cease collecting the 9-I- 1emergency service feewithin 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 aregional 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. Ourultimate 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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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.I6The 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 aregional 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 aregional 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 theregional plan. By definition, optional participation implies the authority not to participate in aregional 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 intheplan. 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 aregional plan does not change a district’s identity or authority. The only express limitation on adistrict’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 aplan 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.20It 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 COLLEGIATEDICTIONARY 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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based on the legislature’s failure to expressly provide that adistrict may unilaterally withdraw from a regional plan as the advisory commission argues. Construing the act to prohibit a district from withdrawing from aregional plan would require adistrict tocontinue participating when itno 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 actimpliedly authorizes adistrict towithdraw from aregional plan, we donot address the city’s arguments that itsparticipation in andwithdrawal from the Coastal plan is governed by the interlocal agreement with CBCO@* orby the city’s status as a home rule city. You next ask whether the advisory commission or adistrict determines the effective date of a district’s withdrawal from aregional plan given the act’s silence on the subject. Based on our conclusion above that optional participation means that adistrict may terminate itsparticipation in aregional 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 adistrict’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 andtheregional commission that allows theparties toresponsibly 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 aportion of the wireless 9-l-l service fees to an emergency communication district, “which once participated in aregional plan but is no longer participating in aregional plan[.]” Because the statute expressly requires it, we conclude in the affirmative. Section 771.071 I(c) provides that within 15days ofthe date ofcollection ofthe wireless 9- l-l service fees

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

822 S.W.2d at 700 (existence 01nonexistence 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 01interpret 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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that bears the same proportion to the total amount collected that the population ofthe 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 areasparticipating in aregional ~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 ofthe statute, the district is entitled tothat portion ofthemoneys collected that isproportional to the population the district serves.

z3.SeeHealth & Safety Code § 771.071(a)

*‘Seeid. $771.0711(a).

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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 aplan is effective on the date determined by the district. The Advisory Commission on State Emergency Communications must distribute aportion 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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