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

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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

HonorableGary Thcmpson OpinionNo. ~~-400 chairman Committee

on CountyAffairs Re: Whether a rural fire prevention Texas House of Representatives district may assess taxes against P. 0. Box 2910 residents of a municipalitywhich Austin,Texas 78769 was incorporated after the creation of the district

Dear Representative Thompson:

You inform us that in 1983 the WimberleyRural Fire Prevention Districtwas formedpursuant to article 2351a-6, V.T.C.S. The voters approveda three cent per hundreddollarmaximum tax for the district. In August of 1984, an area within the rural fire preventiondistrict was incorporated ,nnder article 1133, V.T.C.S., as the town of Woodcreek. You vi;shto 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 districtswith taxing power. Article 2351a-6,V.T.C.S., was enacted pursurtut to this authority. It establishesa procedure for calling an election to decide whether a rural fire prevention districtshallbe ENarmed in a stated area. The commissioners court of the county where the proposed districtwill be locatedmust hold a hearing on the pet:Ltiou for election. If the court determinesthat organization

of the districtwould be feasibleand 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 separatedetermination that the city will be benefitedby the district. Id. 98(a). In addition, the majority of electors residing in the muzipality and participating in the elect:Lon to establishthe 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 preventiondistrict. 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. 1830HonorableGary Thompson- I'ege 2 (JM-400)

preventiondistrict after the district is established. It is well established that two municipal corporationscannot 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. - Galveston1939,writ ref'dr (onecity may not annex territory which is already part of an incorporated

city). A city, with its broad statutorypolice powers, may overlap in territory ,vitha special purpose municipal entity investedwith limitedpowers, even though some of their purposes are the same. City of Pelly vrHarris CountyWater Control & Improvement DistrictNo. 7, 198 S.W.2d 450 (Tex. 1946) (citymay 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:&nv. 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 citiesmay be includedin a fire prevention district.

We believe that a city which incorporates within an existing rural fire preventiondistrict remains part of the district, in the absence of statutoryprovision to the contrary. See 16A McQuillin, The Law of MunicipalCorporations 045.02 (3d cd. 19m; cf. People v, w, 185 N.E.2d 174 (IrL. 1962) (detailed statuto~provisions governingallocationof pcvers between fire protectiondistrict and city). The voters who decide to incorporate are on notice that they reside in a fire protectloudistrict. 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_ DistrictNo. 7, supra. Property in the tovn of Woodcreekis 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 WimberleyRural Fire Prevention

District subsequentto creationof the district,remainspart of the district. Property within Woodcreek is subject to taxation by the rural fire prevention district

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

# L-J truly yours

A JIM MATTQX AttorneyGeneralof Texas

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

JACK HIGHTOWER First Assistant

AttorueyGmeral
l4AP.Y KELLER Executive

Assistant

AttorneyGeneral
ROBERTGRAY SpecialAssistant

AttorneyG,eneral
RICK GILPIN Chairman,

OpinionCommittee Prepared

by Susan L. Garrison Assistant

AttorneyGeneral

p. 1832