                               The Attornqr        General of Texas
                                              Dl%:ember
                                                      20, 1985
JIM MAlTOX
Attorney General


Supreme Court Building         HonorableGary Thcmpson            OpinionNo. ~~-400
P. 0. Box 12548
Austin, TX. 78711.2543
                               chairman
512/475-2501
                               Committeeon County Affairs        Re: Whether a rural fire prevention
Telex 9101S761387              Texas House of Representatives    district may assess taxes against
Telecopier 512/475.0288        P. 0. Box 2910                    residents of a municipalitywhich
                               Austin, Texas 78769               was incorporatedafter the creation
714 Jackson, Suite 700
                                                                 of the district
Dallas, TX. 752024506
2141742.8944                   Dear RepresentativeThompson:

                                    You inform us that in 1983 the Wimberley Rural Fire Prevention
4824 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
                               District was formed pursuant to article 2351a-6,V.T.C.S. The voters
915I533.3484                   approveda three cent per hundred dollar maximum 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
1001 Texas, Suite 700          Woodcreek. You vi;shto know whether the incorporationremoves the
Houston. TX. 77W2.3111         town of Woodcreek from the taxing power of the rural fire prevention
713n235Sa6
                               district.

808 Broadway, Suite 312             Article III, section 48-d of the Texas Constitutionauthorizes
Lubbock, TX. 79401-3479        the legislature i:o provide for the establishment of rural fire
8061747.5233                   prevention districts with taxing power. Article 2351a-6, V.T.C.S.,
                               was enacted pursurtutto this authority. It establishesa procedure
4309 N. Tenth, Suite S         for calling an election to decide whether a rural fire prevention
McAllen, TX. 7SW1-1685         district shall be ENarmed in a stated area. The commissionerscourt of
512BS2.4547                    the county where the proposed district will be located must hold a
                               hearing on the pet:Ltioufor election. If the court determines that
200 Maln Plaza, Suite 400      organizationof the districtwould be feasible and would benefit the
San Antonlo. TX. 78205.2797    land included therein, it is to grant the petition for election.
51212254191                    V.T.C.S. art. 235:.a-6,§6. Where the proposed district includes an
                               incorporatedcity, the court must make a separate determinationthat
An Equal Opportunity/
                               the city will be benefitedby the district. Id. 98(a). In addition,
Afflrmatlve Actlon Employer    the majority of electors residing in the muzipality and partici-
                               pating in the elect:Lon to establishthe districtmust vote in favor of
                               it. &I& Thus, if the voters of an existing municipality are
                               satisfiedwith 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
                               additionaltaxes c~,llected  to fund the district'soperation.

                                   Article 2351a-6 does not expressly deal with the status of a
                               municipality incoqorated within the boundariesof a rural fire


                                                          p. 1830
HonorableGary Thompson- I'ege2    (JM-400)




prevention district after the district is established. It is well
established that two municipal corporationscannot have coexistent
control over the save tewitory and contemporaneouslyexercise the
seme goverumental 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
incorporatedcity). A city, with its broad statutorypolice powers,
may overlap in territory ,vith a special purpose municipal entity
investedwith 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,-section8(a), expresslyrecognizesthat citiesmay be
includedin a fire preventiondistrict.

     We believe that a city which incorporateswithin 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 Corporations045.02 (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 incorporateare on notice that they
reside in a fire protectlou district. Unlike the voters in a city
which exists before the di.strictis established,they do not need a
special procedure like that in section 8(a) of article 2351-6a to
avoid additioual tax liabi.lityfor fire prevention services already
providedby 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 accortlinglysubject to taxationby the district.
See
-   V.T.C.S. art. 2351a-6, 010.

                           SUMMARY

            The tovu of Woodcreek, which was incorporated
         within the bounds.riesof the Wimberley Rural Fire
         PreventionDistrict subsequentto creation of the
         district, remains part of the district. Property
         within Woodcreek is subject to taxation by the
         rural fire preventiondistrictpursuant to section
         10 of article 2351s-6,V.T.C.S.




                                    L-J
                                       Very truly yours

                                             A
                                       JIM    MATTQX
                                       Attorney General of Texas


                                 p. 1831
HonorableGary Thompson - Ia,ge3 (m-400)




JACK HIGHTOWER
First AssistantAttorueyGmeral

l4AP.Y
    KELLER
ExecutiveAssistantAttorneyGeneral

ROBERT GRAY
SpecialAssistantAttorneyG,eneral

RICK GILPIN
Chairman,Opinion Committee

Preparedby Susan L. Garrison
AssistantAttorneyGeneral




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