December 30. 1986 

Eonorable Terra1 R. Smith 

Chairman 

Opinion No. JM-605 

Criminal Jurisprudence Committee 

Texas Rouse of Representatives 

P. 0. Box 2910 

Austin, Texas 18169 

Re: Whether a rural fire prevention district must continue 

to provide services to and 

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 prevention 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 extraterritorial 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 unconstitutioual . 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 obligations 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 

ken 

boundar,ies .of tlae fire distric’t prtot.. to fullpurpose-‘annexation of the area into the rmmicipalsty? 

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 then residents of the annaxed area axe it had prior to the annexation. 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 

MARY KEUER - 

txecutive Aassistant Atiomey Genera1 

RICK GILPIlo 

Chsirman. Opinion‘ Cmsnittee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2705