THEATTORNEYGENERAL 

OF.TEXAS 

AUSTIN. TEXAS 78711 

April 12, 1974 

The Honorable John R. MacLean 

County Attorney 

Johnson County Courthouse 

P. 0. Box 350 

Cleburne, Texas 76031 

Dear Mr. MacLean: 

Opinion No. H- 279 

Re: The authority of a 

county to provide for 

fire protection when 

the county is coterminous with a rural 

fire prevention district 

Your first question asks: 

“whether the Commissioners Court of Johnson 

County may contract with the City of Cleburne for 

rural fire protection when, by a vote of the people, 

the entire County was established as a rural fire 

prevention district.~” 

Rural Fire, Prevention Districts are authorized by Article 3, 5 48-d, 

of the Texas Constitution which provides: 

“The Legislature shall have the power to provide 

for the establishment and creation of rural fire prevention districts and to authorize a tax on the ad 

valorem property situated in said districts not to 

exceed Three (3$) Cents on the One Hundred ($100.00) 

Dollars valuation for the support thereof; provided 

that no tax shall be levied in support of said districts 

u&i1 approved by vote of the people residing therein. ” 

Pursuant to this provision of the Constitution the Legislature enacted 

Article 2351a-6, Vernon’s Texas Civil Statutes, which establishes .the 

means of creating rural fire prevention districts and outlines their powers 

and duties. 

p. 1300 
The Honorable John R. MacLean, page 2 (H-279) 

Another means of providing fire protection to residents of rural 

areas is set out in Article 235la-1: 

“The Commissioners Court in all counties of this 

State shall be authorized to furnish fire protection and 

fire-fighting equipment to the citizens of such county 

residing outside the city limits of any incorporated 

city, town or village within the county and/or adjoining 

counties. The Commissioners Court shall have the 

authority to purchase fire trucks and other fire-fighting equipment by first advertising and receiving bids 

thereon, and is hereby authorized to issue time warrants of the county and to levy and collect taxes to pay 

the interest and principal thereon as provided by law. 

The Commissioners Court of any county of this State 

shall also have the authority to enter into contracts with 

any city, town, or ,village within the county and/or adjoining counties, upon such terms and conditions as 

shall be agreed upon between the Commissioners Court 

and the governing body of such city, town or village, for 

the use of the fire trucks and other fire-fighting equipment of the city, town or village.” 

See, County of Ector v. City of Odessa, 492 S. W. 2d 360 (Tex. Civ.App. 

Amarillo, 1973, no writ). 

It has been suggested that the powers given a rural fire prevention 

district are exclusive and preclude the exercise of similar powers by the 

commissioners court. The provisions advanced to support this conclusion include the language of 5 10, Arty. 2351a-6, V.~ T. C. S., which provides 

“[s]uch fire protection districts . . . shall have full authority to carry out 

the objects of their creation . . . . ” and the portion of $14 of the same 

statute providing that “[t]he Board of Fire.Commissioners shall administer 

all the affairs of said district in accordance with the provisions of this 

Act. . . .” While these two passages suggest ,the power of fire prevention 

districts is plenary, we do not believe they lend support, either expressly 

or impliedly, to the proposition that the power is exclusive. 

‘p. 1301 
The Honorable John q$ MacLean,, page 3 (H-279) 

Although it well may be impractical and inefficient for a county to 

provide rural fire protection when that-duty also is assigned to a rural 

fire prevention, district, it is our opinion that a county is not precluded 

from doing so. 

Your second question assumes an affirmative answer to the first 

question and asks: 

“which governmental unit would he responsible for 

civil liability relating to the furnishings of the services 

in the light of [Article 4413(32c)? $4(g), Vernon’s Texas 

‘Civil Statutes]? ” 

Sectio,n 4(g) of _the Interlocal Cooperation Act, Article 4413(32c), 

Vernon’.s Texas Civil Statutea, provides: 

“(g) When governmental units enter a contract 

or agreement.for the furnishing of fire protection 

services, zany civil~ liabili~ty related to- the furnishing 

of those services is the responsibility of the governmental unit which wculd~ be responsible for furnishing 

the services absent the contract or agreement. ” 

A portion of Article 2351a-1 (quoted in part above) which authorizes 

commissioners courts to provide fire protection also relates to liability 

for acts committed by persons furnishing fire protection service under 

contract. That article provides in part: 

“It is specifically pr,ovided that the acts of any person 

or persons while fighting fires, traveling to or from 

fires, or in any manner durnishing fire protection to 

the citizens of a county outside the city limits of any 

city, town or village, shall be considered as the acts 

of agents of the county in all respects, notwithstanding 

such person or persons may be regular employees or 

firemen of a city, town or.village. No city, town or 

village within a county and/or adjoining counties shall~ 

p. 1302 
The Honorable John R. MacLean, page 4 (H-279) 

be held liable for the acts of any of its employees 

while engaged in fighting fires outside the city 

limits pursuant to any contract theretofore entered 

into between the Commissioners Court of the county 

and the governing body of the city, town or village. ” 

We believe these’:two statutes must be construed together. Article 

2351a-1 is the more specific statute and must prevail over the general 

provisions of the Interlocal Cooperation Act. City of Bavtown v. Angel, 

469 S. W. 2d 923 (Tex. Civ.App. Houston [14th Dist.] 1971, writ ref’d, 

n. r. e.); Commercial Standard Fire and Marine Co. v. Commissioner 

of Insurance, 429 S. W. 2d 930 (Tex. Civ.App., Austin, 1968, no writ), 

53 Tex. Jur. 2d, Statutes, 8 161. Therefore, it is our opinion that the, 

county would be liable for acts of a city employee committed while the 

city was fulfilling a contractual obligation’to the county to fight fires. 

S,UMMARY 

A county is not precluded from contracting with 

a city to provide fire protection outside then city limits 

merely because the county is coterminous with a rural 

fire prevention district. If a question of tort liability 

arose due to acts committed under the contract between 

the county and the city, Article 2351a-1 would control 

the liability of the parties. 

AP 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1303