             THE   ATTORNEY    GENERAI.
                      OF TEXAS

                         June 5, 1989




Honorable Jerry Cobb           Opinion No.   JM-1053
Criminal District Attorney
Denton County                  Re: Whether a 9-l-l emergency
5th Floor Carroll Courts       communication     district may
P. 0. BOX 2344                 increase its fee without    an
Denton, Texas 76202            election,   and related gues-
                               tions   (~~-1651)

Dear Mr. Cobb:

     You ask three questions  relating to the Denton County
Emergency Communication District [the *'districtql]which was
established under article 1432e, V.T.C.S. [the llactl'].

     An emergency communication district under article 1432e
is a body corporate and politic, having capacity to sue or
be sued, which is created pursuant to a confirmation and fee
election for the purpose of providing a primary three digit
emergency telephone number through which emergency  services
can be quickly obtained. w    V.T.C.S. art. 1432e, §§ 2, 11,
12.

     Your first question is whether the district, under the
circumstances which we will summarize below, may increase
the emergency service fee it charges to six percent of the
principal service supplier's base rate "without need of
another election."

     As amended in 1987, section   11(b) of the act    provides
in relevant part:

           The board may charge a 9-l-l emergency
        service fee at a rate not to exceed six
        percent of the base rate of the principal
        service supplier per service year per month
        in the participating jurisdictions.

The fee is collected by the service supplier from service
users as a stated portion of the users‘   service bill and
remitted to the district. V.T.C.S. art. 1432e, § 14.




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Honorable Jerry Cobb - Page 2    (JM-1053)




     The act as originally    adopted in 1985 provided    in
section 11(b) for charging the emergency  service fee at a
rate not to exceed three percent of the base rate.      Acts
1985, 69th Deg., ch. 288, at 1331. The only change made   in
section 11(b) by the 1987 amendment was to substitute    six
percent for three percent.

     The focus of your concern is the effect of the follow-
ing language which appeared on the ballot at the confirma-
tion and fee election held on August 8, 1987, to confirm the
creation of the district and the collection of a fee:

        'Confirming the creation of an emergency
        communication   district and authorizing   a
        9-l-l emergency   service fee not to exceed
        three nercent    of the base rate of     the
        princiual service suuolier ner service vear
        per month to be charged by the District   of
        Denton County excluding the portion in the
        City of Dallas.'   (Emphasis added.)

     Section 11(e) specifically  provides for the   following
proposition language to appear on such ballot:

        'Confirming the creation of an emergency
        communication  district  and authorizing   a
        9-l-l emergency service fee to be charged by
        the district.'

      Thus, while section 11(e) does not provide that a
statement of the maximum percentage fee to be charged is to
be included in the ballot proposition, the language of the
district's August 8, 1987, ballot in fact stated that the
maximum fee would not exceed three percent of the base rate.
Moreover,  at the time of the election, section 11(b) of the
act had been amended to provide that the maximum fee charged
could not exceed six percent,   rather than three percent as
the ballot stated and as that section had provided prior to
the amendment.

     A further complication is that the languages of section
11(b) r from which the excess ballot language in question was
evidently derived, apparently misstates     the legislature's,
intent as to the calculation of the permissible fee. Again,
that provision reads in pertinent part:

           The board may charge a 9-l-l emergency
        service fee at a rate not to exceed six
        percent of the base rate of the principal




                            P. 5481
Honorable Jerry Cobb - Page 3   (JM-1053)




        service supplier per service vear per month
        in the participating jurisdictions.  (Empha-
        sis added.)

Except for the change made by the 1987 amendment, substitut-
ing six percent for three percent, this language is as it
appeared in the original 1985 act. Attorney General Opinion
JM-681 (1987) concluded that the words "per service year" in
section 11(b) of article 1432e should read "per service
user" as does the language of the parallel provisions     in
section 10(b) of article 1432~ and section 11(b) of article
1432d.l

     As to the part of your question which asks whether
another election is needed, we find no authority in article
1432e or elsewhere in current Texas law for holding  another
election. An election held without legal authority is. a
nullity.  Smith v. Morton Inden. School Dist., 85 S.W.2d 853
(Tex. Civ. App. - Amarillo 1935, writ dism'd);      Attorney
General Opinion V-564   (1948). Section 11(h) does provide
for the. holding of another confirmation   and fee election
after one year from the date of a confirmation      and fee
election at which   "the majority   of votes cast in the
election is against the creation of the district and the
levy of the fee." Despite the variation in the ballot
language from that prescribed by statute, the August      8,
1987, election could not be said to be one in which the
majority of votes cast were against the creation and the fee
levy, You state in your request that the proposition on the
ballot at that election was approved by the          voters.
Moreover, section 5 of the act provides that a district may
not be created under the act after January 1, 1988.

     It would appear further that an action to declare the
August 8, 1987, election void because of the variant  ballot
language -- thus arguably permitting  a court to direct the
ordering of a new election in its place -- would have been
required to be brought as an election contest. However, the
deadline for contesting the August 8, 1987, election, thirty
days from the date the result was declared,     has passed.
Elec. Code §§ 221.003, 233.006, 233.011.      Since another



     1. The    latter   articles   provide   for   emergency
communication districts in counties of over two million  and
860,000 population respectively, while article 1432e applies
to counties of over 20,000 population.




                            P. 5482
Honorable Jerry Cobb - Page 4     (JM-1053)




election is not authorized,  your first question narrows to
whether the board may raise the emergency service fee to six
percent in view of the August      8, 1987, ballot  language
limiting the fee to three percent.

     In mason     v. Nacoadoches,  152 S.W. 858     (Tex. Civ.
APP. - Galveston   1912, writ  dism'd),  taxpayers   sought to
have certain municipal    bonds declared   invalid.    The tax
payers alleged that after the election approving issuance of
the bonds, the city council passed an ordinance     authorizing
issuance of the bonds "but providing      that the period    of
redemption of the bonds should be fixed at 10 years . . .
instead of 5 years, as provided in the resolution     submitted
to the voters."    Simnson, sunra, at 859. After discussing
inconclusively whether the redemption date was required to
be included in the proposition submitted     at the election,
the court stated:

        [Hlaving so submitted the proposition,    and
        the voters having voted   in favor of bonds
        redeemable in 5 years, we do not think it was
        proper to change the redemption period to 10
        years. The bonds issued are not the bonds
        authorized  by the voters, but materially
        different therefrom,  and, as before    said,
        clearly more onerous.

Id. at 862. However, the court concluded that "this defect
inthe bonds is not one that can now be urged against their
validity," +,   since the controlling statute provided   that
once certified by the attorney general and registered in the
office of the comptroller such bonds could be attacked    only
on the grounds of fraud, forgery, or unconstitutionality.

     In Attorney General Opinion WW-1009 (1961), though the
ballot used provided  for no time limitation, the order of
election on a county tax proposition indicated that the vote
would be to determine whether a tax would be levied for the
following four years.    The controlling   statute did not
provide for a time limitation on levying the tax.         In
response to the question whether taxes were authorized (as a
result of the election) to be levied in years subsequent  to
those provided  for in the election order, the opinion
concluded in the negative.

     Accordingly, we conclude that since an attempt by the
district to raise the fee to six percent might possibly  be
successfully resisted in court, and since holding   another
election to approve charging the six percent       fee   is




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Honorable Jerry Cobb - Page 5     (JM-1053)




unauthorized, the district,  if it wishes to impose a    six
percent fee, should seek remedial legislation.

     Your second question is:

        Are Board members   individually  liable   for
        actions taken on behalf of the Board?

     We note first, in response to a specific question
raised in the brief accompanying    your request, that the
provisions of section 4(b) of article 1432f clearly  operate
to insulate from liability, to some extent, the board
members of an emergency communication district created under
article 1432e.   Section 4(b) provides in relevant part:

        A member of the advisory commission or the
        governina bodv of a DUbliC aaencv may not be
        held liable for any claim, damage, or loss
        arising from the provision of 9-l-l service
        unless the act or omission causing the claim,
        damage or loss violates a statute or ordi-
        nance applicable to the action.      (Emphasis
        added.)

     Section 1 of article 1432f, in subsection (6), ~defines
lqpublic agency" to include emergency    communication  dis-
tricts, including, pursuant to subsection (2) of section 1,
districts created underarticle  1432e.

     Also, the common law on immunity of public officials
might provide immunity additional to that provided for in
section 4(b) of article     1432f.   At common law public
officials, as a general rule, are not individually   liable
for acts performed within the scope of their public duties,
particularly  where such acts ~involve the exercise      of
discretion, as opposed to ministerial acts. Such immunity
does not extend to acts beyond the scope of the officials'
legal powers. See 47 Tex. Jur.Zd Public Officers 5 130, and
authorities cited there.

     On the other hand, whether the defense of common law
immunity would be available    in a particular   case would
depend ultimately on the facts. of the case and involve a
balancing of the interests the public has in protection from
wrongful official acts and the interests in freeing public
officials from legal attacks which could hamper, deter or
intimidate them in the discharge of their official duties.
See 63A Am. Jur.Zd Public Officers and EmDlOveeS 55 358-365,
and authorities cited there.




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Honorable Jerry Cobb - Page 6       (JM-1053)




     You have not specified   in your request the particular
acts of emergency communication   district board members  the
immunity about which you are concerned.     Thus, we decline
to speculate as to what particular kinds of board member
actions might   fall outside the protection      afforded  by
article 1432f, subsection 4(b), or common law immunity. See
     Liabilitv of Texas Public Officials for their Tortious
2%
-,    16 Hous. L. Rev. 100 (1978).

     Your third question is:

        In the event a Board member is individually
        sued, may the Board vote to indemnify a mem-
        ber who is sued?

     The only arguably   applicable authority   we find for
"indemnification" of public officials for damages    adjudged
against them in connection with the performance of their
official duties is inchapter   104 of the Civil Practice. and
Remedies Code. That chapter provides for indemnification by
the state of an employee or officer, or former employee    or
officer, of a "state agency, institution, or department."
Civ. Prac. & Rem. Code 5 104.001.    We do not think that an
article 1432e communication district    is a "state agency,
institution, or department" under chapter 104. See Attorney
General Opinion JM-1005   (1989) (the Angelina Neches River
Authority is not a state institution, agency or department
within the meaning of chapter 104 of the Civil Practice and
Reme'dies Code).

     We note however that chapter 102 of the Civil Practice
and Remedies  Code makes provisions similar to those     in
chapter 104 but with respect to payment of damages  awarded
against local government officers and employees.    Section
102.002 provides:

            (a) A local government   may pay actual
        damages awarded against an employee of the
        local government if the damages:

               ( 1) result from an act or omission of
           the employee in the course and scope of
           his employment for the local government:
           and

               ( 2)  arise from a    cause of action   for
           neg'1 igence.




                               P. 5485
.
 .
     Honorable Jerry Cobb - Page 7    (JM-1053)




                (b) The local government may also pay the
             court costs and attorney's    fees    awarded
             against an employee   for whom the      local
             government may   pay damages    under    this
             section.

                (c) A local government      may not    pay
             damages awarded against an employee that:

                   (1) arise from a cause of action    for
                official misconduct; or

                   (2) arise from a cause of      action
                involving a willful or wrongful  act or
                omission   or    an   act   or  omission
                constituting.gross negligence.

                (d) A local government     may not    pay
             damages awarded against an employee to the
             extent the damages are recoverable under an
             insurance contract or a self-insurance  plan
             authorized by statute.

     Civ. Prac. & Rem. Code § 102.002.

          We think that~ an emergency communication      district
     created under article 1432e is a "local government"   within
     the meaning of section 102.002. Section 102.001, subsection
     (2), defines l'local governmentt' as a "county, city, town,
     special purpose district, and any other political   subdivi-
     sion of the state."

          Again, since you do not present a specific      factual
     context, we will not speculate as to whether,    and if so,
     which kinds of acts of a board member might be the basis for
     an award of actual damages such that the district would be
     authorized to pay them under chapter 102.

                            SUMMARY

                Because the ballot proposition      at its
             confirmation  and   fee election      included
             language   reading   "authorizing   a    9-l-l
             emergency service  fee not to exceed three
             percent of the base rate of the principal
             service supplier," an attempt by the Denton
             County   Emergency   Communication    District
             subsequently to raise the fee to six percent
             of the base rate      might be subject      to




                                  P. 5486
Honorable Jerry Cobb - Page 8      (JM-1053)




        declaratory, injunctive or other relief in a
        court action.     The holding    of   another
        election to approve raising the fee to six
        percent is not authorized.

           The provision of section 4(b) of V.T.C.S.
        article 1432f that a "member of .         the
        governing body of a public agency may not be
        held liable for any claim, damage, or loss
        arising from the provision of 9-l-l service
        unless the act or omission causing the claim,
        damage, or loss      violates a statute    or
        ordinance applicable to the action" applies
        to   board     members   of   an    emergency
        communication district created under V.T.C.S.
        article 1432e.    Common law public official
        immunity might, on a given set of facts,
        provide additional insulation from liability
        for board members of the district.

           Chapter 102 of the Civil Practice      and
        Remedies Code authorizes   an article   1432e
        emergency communication district board to pay
        actual damages awarded against a board member
        under the circumstances provided for in that
        chapter.




                                     JIM     MATTOX         l    -

                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

IOU MCCRSARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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