December 30. 1986

Eonorable Terra1 R. Smith Chairman Opinion No. JM-605 Criminal Jurisprudence Committee Texas Rouse of Representatives P. 0. Box2910 Austin, Texas 18169 Re: Whether arural fire prevention district mustcontinue to provide services to and 888688 taxes against residents of anarea recently annexedby amunicipality
DearRepresentative Smith:
Youask twoquestions about the status of anarea of arural 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 andbe liable to residents of arecently 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 andcreation 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 acity. Theenactment of Senate Bill No. 783 amendedsection 8A of article 2351a-6. V.T.C.S., and added sections 8Band 14bto article 2351a-6, V.T.C.S. See Acts 1985, 69th Leg., ch. 93, at 525. Section 8Anowrequires thezissioners 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. anewprovision, provides that territory within a city or

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its extrateqitorial jurisdiction maynot 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 andproperty owners of the territory proposed for inclusion in-the district maypetition 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 14bis anewsection 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 8Bof this Act

. . . notify the secretary of the board of fire commissioners in writing that the area is excluded

_ fram the district’s :territory.

- .~ (b) Onreceipt 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. Thebill analysis of Senate Bill No. 783states 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. SeeAttorney 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 handor current revenues. for the year. Thus, the obligations at issue were

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obligations to bondholders, ObligatiOnS protectid by the contract clauses of both the federal andTexas 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 wayimpaik the obligation of contract and violate the coustitution. -City of-Aransas Pass v. Keeling. 247 S.W. 818, 821 (Tex. 1923); Burnsv. 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 arural 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. amendedto 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 maybe 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 fromthe 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. : Ouranswer 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 whichwaswithin the

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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.+,befirlfilled. 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, ;-~.butit doas not deal with the firefighting responsibilitfea of those cities. ‘Tbe.diatrict~wlll continue to have tha samepowers andduties tow&d thenresidents of the annaxed area axeit had prior to the annexation. A city, with;fta broad statutory police powers, mayoverlap in terrkory .eth a special purpoae:.municipu~ entity, such as a rural fire’ proteciion district. City of Pelly v..Earria CountyWater Control 6 lmprovwent District No. 7, 198 S.U.2d 450 (Tex. 1946); Attorney General Opinioa J&400 (1985).

‘-~BC.M M A.RY - When.amini~ipality- annexes territory within a rural fire :preventlon district crested prior to

.’ Skptembsr.l; 1985, the territory remains part of thendistrict- unless the city removes it .from the diptrict ,pursuant to section 14b of ‘article 2351ak6, V;TIC.S. men a samicipality removes an annexediafea:from the district. the district is to cease providing services to that &ea.

AttorneyGenera.l of Tbxas JACgHIGDTO!& First Aaaiataat .Attorney General MARY KEUER - txecutive Aassistant Atiomey Genera1 RICKGILPIlo Chsirman. Opinion‘ Cmsnittee Prepared by SusanL. Garrison Assistant Attorney General

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