JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 78711.2543 

512/475-2501 

Telex 9101S761387 

Telecopier 512/475.0288 

714 Jackson, Suite 700 

Dallas, TX. 752024506 

2141742.8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

915I533.3484 

1001 Texas, Suite 700 

Houston. TX. 77W2.3111 

713n235Sa6 

808 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

8061747.5233 

4309 N. Tenth, Suite S 

McAllen, TX. 7SW1-1685 

512BS2.4547 

200 Maln Plaza, Suite 400 

San Antonlo. TX. 78205.2797 

51212254191 

An Equal Opportunity/ 

Afflrmatlve Actlon Employer 

The Attornqr General of Texas 

Dl%:ember 20, 1985 

Honorable Gary Thcmpson Opinion No. ~~-400 

chairman 

Committee on County Affairs Re: Whether a rural fire prevention 

Texas House of Representatives district may assess taxes against 

P. 0. Box 2910 residents of a municipality which 

Austin, Texas 78769 was incorporated after the creation 

of the district 

Dear Representative Thompson: 

You inform us that in 1983 the Wimberley Rural Fire Prevention 

District was formed pursuant to article 2351a-6, V.T.C.S. The voters 

approved a three cent per hundred dollar maximum tax for the district. 

In August of 1984, an area within the rural fire prevention district 

was incorporated ,nnder article 1133, V.T.C.S., as the town of 

Woodcreek. You vi;sh to know whether the incorporation removes the 

town of Woodcreek from the taxing power of the rural fire prevention 

district. 

Article III, section 48-d of the Texas Constitution authorizes 

the legislature i:o provide for the establishment of rural fire 

prevention districts with taxing power. Article 2351a-6, V.T.C.S., 

was enacted pursurtut to this authority. It establishes a procedure 

for calling an election to decide whether a rural fire prevention 

district shall be ENarmed in a stated area. The commissioners court of 

the county where the proposed district will be located must hold a 

hearing on the pet:Ltiou for election. If the court determines that 

organization of the district would be feasible and would benefit the 

land included therein, it is to grant the petition for election. 

V.T.C.S. art. 235:.a-6, §6. Where the proposed district includes an 

incorporated city, the court must make a separate determination that 

the city will be benefited by the district. Id. 98(a). In addition, 

the majority of electors residing in the muzipality and participating in the elect:Lon to establish the district must vote in favor of 

it. &I& Thus, if the voters of an existing municipality are 

satisfied with thG! fire protection their city offers, they need not 

join the proposed rural fire prevention district. They may, if they 

wish, vote to be included in the district and gain additional fire 

protection from the district as well as become subject to the 

additional taxes c~,llected to fund the district's operation. 

Article 2351a-6 does not expressly deal with the status of a 

municipality incoqorated within the boundaries of a rural fire 

p. 1830 
Honorable Gary Thompson - I'ege 2 (JM-400) 

prevention district after the district is established. It is well 

established that two municipal corporations cannot have coexistent 

control over the save tewitory and contemporaneously exercise the 

seme gove rumental powers in it. City of Galena Park v. City of 

Houston, 133 S.W.2d 162 (Tm. Civ. App. - Galveston 1939, writ ref'dr 

(onecity may not annex territory which is already part of an 

incorporated city). A city, with its broad statutory police powers, 

may overlap in territory ,vith a special purpose municipal entity 

invested with limited powers, even though some of their purposes are 

the same. City of Pelly vrHarris County Water Control & Improvement 

District No. 7, 198 S.W.2d 450 (Tex. 1946) (city may annex territory 

despite fact that It is located in a water control and improvement 

district or a water consc:evation district); State ex rel. Grimes 

County Taxpayers Associat:&n v. Texas Municipal Power Agency, 565 

S.W.2d 258 (Tex. Civ. App. - Houston [lst Dist.] 1978, no writ). 

Article 2531a-6, -section 8(a), expressly recognizes that cities may be 

included in a fire prevention district. 

We believe that a city which incorporates within an existing 

rural fire prevention district remains part of the district, in the 

absence of statutory provision to the contrary. See 16A McQuillin, 

The Law of Municipal Corporations 045.02 (3d cd. 19m; cf. People v, 

w, 185 N.E.2d 174 (IrL. 1962) (detailed statuto~provisions 

governing allocation of pcvers between fire protection district and 

city). The voters who decide to incorporate are on notice that they 

reside in a fire protectlou district. Unlike the voters in a city 

which exists before the di.strict is established, they do not need a 

special procedure like that in section 8(a) of article 2351-6a to 

avoid additioual tax liabi.lity for fire prevention services already 

provided by a city. 

The tovn of Woodcreek remains in the Wimberley Fire Protection 

District after its incorpx:ation. City of Pelly v. Harris County 

Water Control 6 Improvement_ District No. 7, supra. Property in the 

tovn of Woodcreek is accortlingly subject to taxation by the district. 

See V.T.C.S. art. 2351a-6, 010. - 

SUMMARY 

The tovu of Woodcreek, which was incorporated 

within the bounds.ries of the Wimberley Rural Fire 

Prevention District subsequent to creation of the 

district, remains part of the district. Property 

within Woodcreek is subject to taxation by the 

rural fire prevention district pursuant to section 

10 of article 2351s-6, V.T.C.S. 

Very L-J truly yours 

A 

JIM MATTQX 

Attorney General of Texas 

p. 1831 
Honorable Gary Thompson - Ia,ge 3 (m-400) 

JACK HIGHTOWER 

First Assistant Attoruey Gmeral 

l4AP.Y KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney G,eneral 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 1832