    OFFICE OF THE ATTORNEY GENERAL . ST.~TE OF TEXAS

    JOHN     CORNYN




                                                   June 19,200l



The Honorable Cheryl1 Mabray                               Opinion No. JC-0392
Llano County Attorney
P.O. Box 821                                               Re:     Whether, under section 776.019 of the
Llano, Texas 78643                                         Health and Safety Code, a commissioners court
                                                           that orders an election to create an emergency
                                                           services district that will overlap with a rural fire
                                                           prevention district is limited to ordering an
                                                           election to authorize the levy of a two percent ad
                                                           valorem tax (RQ-0352-JC)


Dear Ms. Mabray:

         Section 776.019 of the Health and Safety Code requires a commissioners             court, upon
granting a petition for creation of an emergency services district, to order an election to confirm the
creation of the district and to authorize the levy of an ad valorem tax. You ask, in essence, whether
a commissioners court that orders an election to create an emergency services district that will
overlap with a rural fire prevention district is limited to ordering an election authorizing the levy of
a tax not to exceed “two cents on each $100 of the taxable value of property taxable by the district”
under subsection (a)(2) of that provision or whether, at least in some parts of the county, it may order
an election authorizing the levy of a tax not to exceed “10 cents on each $100 of the taxable value
of property taxable by the district” under subsection (a)( 1). See TEX. HEALTH & SAFETY CODE ANN.
8 776.019(a) (V emon 1992). We conclude that when a proposed emergency services district will
overlap with a rural fire prevention district, the commissioners court is limited to ordering an
election to authorize the levy of a tax as provided in subsection (a)(2). The election throughout the
proposed emergency services district must be to authorize the levy of a tax not to exceed “two cents
on each $100 of the taxable value of property taxable by the district.” Id. 9 776.019(a)(2).’

         We understand that the Llano County Commissioners Court is considering a petition for the
creation of a countywide emergency services district. There are currently two rural fire prevention
districts located within the county. You state that they “encompass separate areas within the county,




         ‘Recently enacted legislation, House Bill 2744, amends Health and Safety Code, section 776.019(a). See Tex.
H.B. 2744,77th Leg., R.S. (2001). The Governor signed the bill on June 15,200l.      Subsection (a)(2) will be repealed
and subsection (a) will be significantly revised when this bill becomes effective on September 1,200 1.
The Honorable     Cheryl1 Mabray     - Page 2         (JC-0392)




but. . . do not cover the entire county. Each of these fire prevention districts currently has taxing
authority up to three cents on each $100 of the taxable value of property” within the district2

         You inform us that these rural fire prevention districts were created pursuant to article III,
section 48-d of the Texas Constitution and section 794.018 of the Health and Safety Code. Section
48-d authorizes the legislature to provide for the creation of rural fire prevention districts and
“to authorize a tax on the ad valorem property situated in said districts not to exceed Three (36)
Cents on the One Hundred ($100.00) Dollars valuation for the support thereof.” TEX. CONST. art.
III, 5 48-d(a). Under section 794.018 of the Health and Safety Code, the ad valorem tax supporting
a rural fire prevention district is limited to “three cents on each $100 of the taxable value of property
taxable by the district.” TEX. HEALTH& SAFETY CODEANN. 3 794.018(a)( 1) (Vernon Supp. 2001).
In Harris County, the tax may not “exceed Five (5#) Cents on the One Hundred ($100.00) Dollars
valuation for the support of the district.” TEX. CONST.art. III, § 48-d(b); see also TEX. HEALTH &
SAFETYCODE ANN. 8 794.018(a)(2) (Vernon Supp. 2001).

         Your questions pertain to the creation of an emergency services district under section 48-e
of article III, which provides as follows:

                          Laws may be enacted to provide for the establishment and
                 creation of special districts to provide emergency services and to
                 authorize the commissioners courts of participating counties to levy
                 a tax on the ad valorem property situated in said districts not to
                 exceed Ten Cents (106) on the One Hundred Dollars ($100.00)
                 valuation for the support thereof; provided that no tax shall be levied
                 in support of said districts until approved by a vote of the qualified
                 voters residing therein.     Such a district may provide emergency
                 medical services, emergency ambulance services, rural fire prevention
                 and control services, or other emergency services authorized by the
                 Legislature.

TEX. CONST. art. III, 8 48-e. The legislature  has enacted two statutory schemes for the creation of
emergency services districts, chapters 775 and 776 of the Health and Safety Code. Your questions
pertain to creation of a district under chapter 776, which applies to counties with a population of
125,000 or less. See TEX. HEALTH & SAFETYCODEANN. 6 776.003 (Vernon 1992).

        You specifically    ask about section 776.019, which provides in pertinent part as follows:

                     (a) On the granting of a petition [for the creation of an emergency
                 services district], the commissioners court shall order an election to




        2Letter from Honorable Cheryl1 Mabray, Llano County Attorney, to Honorable John Comyn, Texas Attorney
General at 1 (Feb. 21,200l) ( on fl1 e with Opinion Committee) [hereinafter Request Letter].
The Honorable    Cheryl1 Mabray     - Page 3        (JC-0392)




                 confirm the district’s creation and authorize the levy of a tax not to
                 exceed:

                         (1) 10 cents on each $100 of the taxable value of property
                 taxable by the district; or

                          (2) two cents on each $100 of the taxable value of property
                 taxable by the district if any area in the district is also included in a
                 rural fire prevention district.

Id. 9 776.019.

        Your questions are as follows:

                     1. Does the statutory language of Section 776.019(a)(2) permit
                 a county commissioners court to order an election limiting the taxing
                 authority of an Emergency Service District to two cents on each $100
                 of the taxable value of property taxable by the district, or does it
                 require the commissioners court to do so?

                      2. In either case, would the taxable property subject to the two
                 cent limitation be only that lying within the rural fire prevention
                 district, or would this limitation apply to all property within a
                 proposed county-wide Emergency Service District?

                      3. If the statutory language of Section 776.019 either permits or
                 requires a county commissioners court to order an election limiting
                 the taxing authority of an Emergency Service District to two cents on
                 each $100 of the taxable value of any property taxable by the district,
                 is the provision unconstitutional     in that it conflicts with Texas
                 Constitution, Article III, Section 48-e, which appears to limit the
                 Legislature’s authority only to authorizing affected commissioners
                 courts to impose a tax “not to exceed Ten Cents (10 cents) on the One
                 Hundred Dollars ($100.00) valuation”?

Request Letter, supra note 2, at 2.

         We answer your first two questions together.        You ask, in essence, whether section
776.019(a) limits the Llano County Commissioners Court to ordering an election to authorize the
levy of a tax not to exceed two cents on each $100 of the taxable value of property taxable by the
district or whether the Court may order an election to authorize the levy of a higher tax in some or
all parts of the county. We conclude that section 776.019(a) limits the Llano County Commissioners
Court to ordering an election to authorize the levy of a tax not to exceed two cents on each $100 of
The Honorable    Cheryl1 Mabray    - Page 4        (JC-0392)




the taxable value of property taxable by the district and that this limitation on the tax rate applies
throughout the proposed district.

         In construing section 776.019(a), we are guided by the legal principle that “[tlhe power to
tax belongs to the sovereignty.    It can only be exercised by a subordinate corporate body when
delegated to it either by the Constitution or by the legislature . . . .” Tri-City Fresh Water Suppi’y
Dist. No. 2 v. Mann, 142 S.W.2d 945,948 (Tex. 1940). As a result, “such power cannot exist by
implication. A political subdivision of a state . . . has no inherent power to levy taxes, and if the
power exists at all, it must be expressly granted.” Ripley v. Trinity River Canal & Conservancy
Dist., 88 S.W.2d 752, 756 (Tex. Civ. App.-Dallas 1935, writ ref d) (cited with approval in Mann,
142 S.W.2d at 948-49). Given that the power to tax must be expressly granted, it follows that a
statute conferring the power to tax “‘is to be strictly construed, and must be closely followed.“’
Mann, I42 S.W.2d at 948 (citation omitted).

          Whereas subsection (a)( 1) of section 776.019 generally provides for an election to authorize
the levy of a tax not to exceed ten cents on each $100 of the taxable value of property taxable by the
district, subsection (a)(2) of that statute provides that a commissioners court shall order an election
to confirm the district’s creation and authorize the levy of a tax not to exceed “two cents on each
$100 of the taxable value of property taxable by the district ifany area in the district is also included
in a rural fire prevention district.” TEX. HEALTH& SAFETYCODE ANN. 5 776.019(a)(2) (Vernon
 1992) (emphasis added). The subsection (a)(2) limitation on the tax rate is triggered if any area in
the proposed emergency services district is also included in a rural fire prevention district. On its
face, this limitation applies throughout the district. There is no provision in the statute or elsewhere
in chapter 776 for ordering the election to approve a tax with varying rates in different areas of the
district depending upon whether a particular area is also included within a rural fire prevention
district. Nor does any provision in chapter 776 contemplate the levy and collection of such a tax.
The power to order an election to confirm the levy of a variable tax may not be implied.
Accordingly, we conclude that, when a proposed emergency services district will overlap with a rural
fire prevention district, the commissioners court is limited to ordering an election to authorize the
levy of a tax not to exceed two cents on each $100 of taxable property. The commissioners court
may not order an election authorizing the levy of a tax with varying rates in different areas of the
proposed district.

          You also ask about the constitutionality   of section 776.019. You suggest that section
776.019 is unconstitutional    given that, in your words, article III, section 48-e “limit[s] the
Legislature’s authority only to authorizing affected commissioners courts to impose a tax ‘not to
exceed Ten Cents (10 cents) on the One Hundred Dollars ($100.00) valuation.“’ Request Letter,
supra note 2, at 2. You appear to believe that under section 48-e the legislature is limited to enacting
legislation authorizing a ten cent tax. We disagree.

        Counties and special districts’ authority must be express or necessarily implied from their
express powers. The legislature, however, is not subject to the same constraints. Unlike counties
and special districts, which must look to statutes and the constitution for grants of authority, the
The Honorable    Cheryl1 Mabray    - Page 5        (JC-0392)




legislature need only look to the constitution for express and implied limitations on its authority.
That is because our state legislature is vested with the lawmaking power of the people by virtue of
article III, section 1 of the Texas Constitution. See TEX. CONST.art. III, 4 1 (“The Legislative power
of this State shall be vested in a Senate and House of Representatives, which together shall be styled
‘The Legislature of the State of Texas”‘). As this is the source of the legislature’s power, its
authority is said to be plenary, its extent “limited only by the express or implied restrictions thereon
contained in or necessarily arising from the Constitution itself.”            Government Sews. Ins.
Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex. 1963) (citing State v. Brownson, 61 S.W. 114
(Tex. 1901)).

         Article III, section 48-e provides that “[l]aws may be enacted to provide for the establishment
and creation of special districts to provide emergency services and to authorize the cornmissioners
courts of participating counties to levy a tax on the ad valorem property situated in said districts not
to exceed Ten Cents (106) on the One Hundred Dollars ($100.00) valuation for the support thereof.”
TEX. CONST. art. III, 5 48-e (emphasis added). This provision, in using the words “not to exceed,”
sets an upper limit on the ad valorem tax. It neither expressly nor impliedly limits the legislature to
enacting laws authorizing only a ten cent tax, nor does any other constitutional provision.
Accordingly, we conclude that section 48-e permits the legislature to enact laws authorizing the levy
of a lesser tax. Section 776.019(a)(2), limiting the tax in an emergency services district that includes
territory within a rural fire prevention district to two cents on each $100 of the taxable value of
property taxable by the district, is constitutional.

        We note that you cite Attorney General Opinion JM-1010, which construed the statutory
predecessor to chapter 775 of the Health and Safety Code, in support of your constitutional
argument. In that opinion, this office addressed whether a commissioners court had the option of
asking the voters to approve a lesser tax. The opinion concluded that a commissioners court lacked
such authority under the statutory scheme. The opinion is equivocal about whether article III,
section 48-e permits the legislature to authorize or require the levy of a tax of less than ten cents on
each $100 of taxable property. See Tex. Att’y Gen. Op. No. JM-1010 (1989) at 3 n.2. Attorney
General Opinion JM- 10 10 fails to recognize the difference between the limited authority of a county
or special district to tax and the plenary authority of the legislature to enact laws. To the extent that
JM-1010 suggests that article III, section 48-e limits the authority of the legislature to provide for
the levy of a tax of less than ten cents, it is overruled.
The Honorable   Cheryl1 Mabray     - Page 6           (JC-0392)




                                         SUMMARY

                         In a county with a population of 125,000 or less, see TEX.
                HEALTH & SAFETY CODE ANN. 0 776.003 (Vernon 1992), when a
                proposed emergency services district will overlap with a rural fire
                prevention district, the commissioners court is limited to ordering an
                election to authorize the levy of a tax not to exceed “two cents on
                each $100 of the taxable value of property taxable by the district,” id.
                5 776.019(a)(2). This limitation does not violate article III, section
                48-e of the Texas Constitution.

                         To the extent that Attorney General Opinion JM- 10 10 (1989)
                suggests that article III, section 48-e limits the authority of the
                legislature to provide for the levy of a tax of less than ten cents, it is
                overruled.

                                                 Yo    s ve   truly,



                                              4J+-f-
                                                 JOHN     CORNYN
                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
