            THEATTORNEYGENERAL
                              OF.TEXAS
                        AUSTIN.       TEXAS     78711



                                 April   12, 1974



The Honorable John R. MacLean                       Opinion No.   H- 279
County Attorney
Johnson County Courthouse                           Re:   The authority of a
P. 0. Box 350                                             county to provide for
Cleburne,  Texas 76031                                    fire protection when
                                                          the county is coter-
                                                          minous with a rural
Dear Mr.   MacLean:                                       fire prevention district

      Your first   question   asks:

             “whether the Commissioners      Court of Johnson
             County may contract with the City of Cleburne for
             rural fire protection when, by a vote of the people,
             the entire County was established   as a rural fire
             prevention district.~”

       Rural Fire, Prevention Districts are authorized      by Article     3, 5 48-d,
of the Texas Constitution which provides:

             “The Legislature    shall have the power to provide
             for the establishment    and creation of rural fire pre-
             vention districts  and to authorize a tax on the 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 of the 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. 1300
The Honorable    John R.   MacLean,    page 2 (H-279)




        Another means of providing fire protection           to residents   of rural
areas   is set out in Article 235la-1:

                      “The Commissioners      Court in all counties of this
              State shall be authorized to furnish fire protection and
              fire-fighting   equipment to the citizens of such county
              residing outside the city limits of any incorporated
              city, town or village within the county and/or adjoining
              counties.     The Commissioners     Court shall have the
              authority to purchase fire trucks and other fire-fight-
              ing equipment by first advertising     and receiving bids
              thereon,    and is hereby authorized   to issue time war-
              rants of the county and to levy and collect taxes to pay
              the interest and principal thereon as provided by law.
              The Commissioners       Court of any county of this State
              shall also have the authority to enter into contracts with
              any city, town, or ,village within the county and/or ad-
              joining 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 of the fire trucks and other fire-fighting    equip-
              ment of the city, town or village.”

See, County of Ector v. City of Odessa,          492 S. W.    2d 360 (Tex. Civ.App.
Amarillo,  1973, no writ).

        It has been suggested that the powers given a rural fire prevention
district are exclusive and preclude the exercise         of similar powers by the
commissioners       court.   The provisions   advanced to support this conclu-
sion include the language of 5 10, Arty. 2351a-6,      V.~ T. C. S., which provides
“[s]uch fire protection districts     . . . shall have full authority to carry out
the objects of their creation . . . . ” and the portion of $14 of the same
statute providing that “[t]he Board of Fire.Commissioners             shall administer
all the affairs of said district in accordance      with the provisions     of this
Act. . . .” While these two passages         suggest ,the power of fire prevention
districts   is plenary,    we do not believe they lend support,      either expressly
or impliedly,     to the proposition  that the power is exclusive.




                                      ‘p. 1301
The 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     to a rural
fire prevention, district, it is 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 _the Interlocal   Cooperation   Act,   Article   4413(32c),
Vernon’.s Texas Civil Statutea,      provides:

                    “(g) When governmental         units enter a contract
             or agreement.for      the furnishing of fire protection
             services,   zany civil~ liabili~ty related to- the furnishing
             of those services     is the responsibility    of the govern-
             mental unit which wculd~ be responsible         for furnishing
             the services   absent the contract or agreement.         ”

      A portion  of Article 2351a-1 (quoted in part above) which authorizes
commissioners    courts to provide fire protection also relates to liability
for acts committed by persons furnishing fire protection service under
contract.   That article provides in part:

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




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




             be held liable for the acts of any of its employees
             while engaged in fighting fires outside the city
             limits pursuant to any contract theretofore   entered
             into between the Commissioners     Court of the 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   of the 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
of Insurance,    429 S. W. 2d 930 (Tex. Civ.App.,         Austin, 1968, no writ),
53 Tex. Jur. 2d, Statutes,     8 161. Therefore,     it is our opinion that the,
county would be liable for acts of a city employee committed while the
city was fulfilling a contractual     obligation’to   the county to fight fires.

                                        S,UMMARY

                    A county is not precluded from contracting with
             a city to provide fire protection outside then city limits
             merely because the county is coterminous         with a rural
             fire prevention district.     If a question of tort liability
             arose due to acts committed under the contract between
             the county and the city, Article     2351a-1 would control
             the liability of the parties.




                                        Attorney    General   of Texas
AP




DAVID M. KENDALL,           Chairman
Opinion Committee




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