# 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 ofa 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 ofJohnson County may contract with the City of Cleburne for rural fire protection when, by avote ofthe people, the entire County was established as a rural fire prevention district.~” Rural Fire, Prevention Districts are authorized byArticle 3, 548-d, ofthe 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 onthe 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 ofthe 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. 1300The Honorable John R. MacLean, page 2(H-279)

Another means ofproviding fire protection to residents of rural areas is set **out** inArticle 235la-1: “The Commissioners Court in all counties ofthis State shall be authorized tofurnish fire protection and fire-fighting equipment to the citizens of such county residing outside the city limits ofany incorporated city, town or village within the county and/or adjoining counties. The Commissioners Court shall have the authority topurchase fire trucks and other fire-fighting equipment by first advertising and receiving bids thereon, and is hereby authorized toissue time warrants ofthe county and to levy and collect taxes to pay the interest and principal thereon as provided by law. **The** Commissioners **Court** ofany county ofthis 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 ofthe fire trucks and other fire-fighting equipment ofthe city, town or village.” See, County of Ector v. City ofOdessa, 492 S.W. 2d 360 (Tex. Civ.App. Amarillo, 1973, nowrit). Ithas been suggested that the powers given a rural fire prevention district are exclusive and preclude the exercise of similar powers bythe commissioners court. The provisions advanced to support this conclusion include the language of 510, Arty.2351a-6, V.~T. C.S., which provides

“[s]uch fire protection districts
. . . shall have full authority to carry out the objects oftheir creation
. . .. ” and the portion of $14 of the same statute providing that “[t]he Board ofFire.Commissioners shall administer all the affairs of said district inaccordance with the provisions ofthis Act.
. . .” While these two passages suggest ,thepower offire prevention districts is plenary, we do not believe they lend support, either expressly or impliedly, to the proposition that the power is exclusive.

‘p. 1301The 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 toa rural fire prevention, district, itis 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_theInterlocal Cooperation Act, Article 4413(32c), Vernon’.s Texas Civil **Statutea,** provides:

“(g) When governmental units enter a contract
or agreement.for the furnishing offire protection services, zanycivil~liabili~ty related to-the furnishing ofthose services is the responsibility of the governmental unit which wculd~be responsible for furnishing the services absent the contract or agreement. ” **A** portion ofArticle 2351a-1 (quoted in part above) which authorizes commissioners courts to provide fire protection also relates toliability for acts committed by persons furnishing fire protection service under contract. That article provides in part:

“It is specifically pr,ovided that the acts ofany person or persons while fighting fires, traveling to or from fires, or in any manner durnishing fire protection to the citizens ofa county outside the city limits ofany city, town or village, shall be considered as the acts ofagents ofthe county in all respects, notwithstanding such person or persons may be regular employees or firemen ofa city, town or.village. No city, town or village within a county and/or adjoining counties shall~

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

be held liable for the acts ofany ofits employees while engaged in fighting fires outside the city limits pursuant to any contract theretofore entered into between the Commissioners **Court** ofthe 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 ofthe 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 ofInsurance, 429 S.W. 2d 930 (Tex. Civ.App., Austin, 1968, nowrit), 53 Tex. Jur. 2d, Statutes, 8161. Therefore, it is **our** opinion that the, county would be liable for acts ofa city employee committed while the city was fulfilling a contractual obligation’to the county tofight fires. S,UMMARY A county is not precluded from contracting with a city toprovide fire protection outside thencity limits merely because the county is coterminous with a rural fire prevention district. Ifa question oftort liability arose due toacts committed under the contract between the county and the city, Article 2351a-1 would control the liability of the parties.

AP Attorney General ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

p. 1303