                      January 24, 1989




Honorable Mike Driscoll         Opinion No. JM-1010
Harris County Attorney
1001 Preston, Suite 634         Re:   Authority of a commis-
Houston, Texas 77002            sioners court     to    impose
                                limitations on an emergency
                                services    district,
                                related questions    (RQ-15$

Dear Mr. Driscoll:

     You ask several questions about article III, section
48-e, of the Texas Constitution, which permits the creation
of emergency services districts, and about article 2351a-8,
which implements article II, section 48-e-l

     You first ask:

        May the Commissioners Court limit the amount
        of the tax which may be levied in support of
        an emergency services district in the order
        calling the election and in the ballot prop-
        osition to be submitted to the voters     to
        confirm the organization of said district?
        For example, may the Commissioners Court set
        a maximum rate of six cents per $100 valua-
        tion?

     Article III, section 48-e, provides:

           Laws may be enacted to provide    for the
        establishment and creation of special dis-
        tricts to.provide  emergency services and to
        authorize the commissioners   court of par-
        ticipating counties to levy a tax on the ad
        valorem property situated  in said districts



   1. Article 2351a-9 also implements article  III,  section
48-e, for counties with a population of 125,000 or less.




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Honorable Mike Driscoll - Page 2   (JM-1010)




        not to exceed Ten Cents     (1Oc) 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   electors
        residing therein. Such a district may pro-
        vide emergency medical   services,   emergency
        ambulance services, rural fire prevention and
        control services, or other emergency services
        authorized by the Legislature.

     The statute implementing article III, section 48-e, iS
article 2351a-8, V.T.C.S.    Section 1 of article    2351a-8
provides:

           Emergency  services  districts   may   be
        organized in this state under Article   III,
        Section 48-e, of the Texas Constitution  for
        the protection of human life and health   as
        provided by this Act.

Section 2 of article   2351a-8 provides for petitions    for
emergency services districts in one-county districts,    and-
section 3 provides for petitions for multi-county districts.
Section 4.provides for filing of ,petitions. Sections 5 land
6 provide for notice of and hearings on proposed  districts.
Section 7 provides:

           If at the hearing   it appears to the corn-
        missioners court that the organization of a
        district as petitioned for is feasible and
        practicable, and will be conducive     to the
        public safety, welfare, health, and conve-
        nience of persons   residing in the district,
        the court shall make those findings and grant
        the petition and fix the boundaries of the
        district.   If the court does not make those
        findings, it shall deny the petition.

Section 8 provides in part:

           When the petition is granted, the commis-
        sioners court shall call an election       to
        confirm the organization and authorize    the
        levy of an ad valorem tax in an amount not to
        exceed 10 cents on the $100 valuation . . . .

     Your question is whether the ballot proposition    must
ask the voters to grant the commissioners court authority to
levy a tax of up to ten cents on the $100 valuation       or




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Honorable Mike Driscoll - Page 3   (JM-1010)




whether a commissioners court has the option of asking the
voters to give the commissioners   court authority to levy a
maximum tax for the support of,the,district of less than ten
cents on the $100 valuation.    Both the constitutional   and
statutory provisions   are ambiguous  on this point.   It is
possible to read both provisions as allowing only one issue
to be presented to the voters: whether a district shall be
created with the authority to levy a tax not to exceed ten
cents on the $100 valuation.    It is also possible to read
those provisions as simply setting the maximum tax that the
voters may authorize and allowing the voters to authorize   a
lower maximum tax.

     Although the statute is ambiguous, several provisions
of article 2351a-8 lead us to the conclusion that the legis-
lature did not intend2 to allow the commissioners court to
propose or the voters to authorize a maximum tax rate other
than ten cents on the $100 valuation.  For example,  section
11 provides:

           If a majority    of those voting     at an
        election to create an emergency       services
        district votes in favor of the formation    of
        the district, the district shall be consid-
        ered an-organized emergency services distri.ct
        under this Act. The commissioners courts of
        the counties in which the district is located
        shall enter orders accordingly     in    their
        minutes substantially in the following form:

           Whereas, at an election duly and regularly
        held on the           date of             A.D.
        19-t within that portion of            bounty,
        State of    Texas, described     as:   (insert
        description unless the district    is county-
        wide) there was submitted to the legal voters
        thereof  the question    whether   the   above
        described territory shall be formed into an




   2. Even if the constitutional     provision  permits  the
legislature to allow a county or counties to set any maximum
tax rate up to ten cents on the $100 valuation, it clearly
does not require the legislature to permit such variation.
Therefore, for purposes   of this opinion, we will only
attempt to determine   the legislative  intent in enacting
article 2351a-8.




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        emergency   services   district   under   the
        provisions of the laws of this state; and

            Whereas, at such election    votes were
        cast in favor of formation o=id     district
        and         votes   were cast against   such
        forma=;     and

           Whereas, the formation of such emergency
        services district  received the affirmative
        vote of the majority   of the votes cast at
        such election as provided by law;

           Now, therefore,   the County Commissioners
        court of        County, State of Texas, does
        hereby find, declare and order that the tract
        hereinbefore  described   has been duly and
        legally formed into an emergency      services
        district (or a portion thereof) under the
        name of         under and pursuant to Article
        III, Section 4;1-e, of the Texas Constitution,
        and with the powers vested in such district
        conferred by law.

     That sample form for the orderto be entered in the
minutes of the commissioners   court does not contain    any
statement about the maximum tax that may be levied for the
support of    the district.     That indicates    that   the
legislature did not intend for a commissioners court to be
able to ask the voters to appr0ve.a maximum taxing authority
of less than ten cents on the $100 valuation.  Therefore  we
think the commissioners court must ask the voters to approve
a district with a maximum  taxing authority of ten cents on
the $100 valuation.

     Also, the fact that there is no requirement that the
petition   for an emergency   services district    specify a
maximum tax rate and the fact that the notice of the hearing
on the petition is not required to .contain the proposed
maximum tax rate both indicate that the legislature did not
intend for the maximum tax rate to be negotiable.    V.T.C.S.
art. 2351a-8, §§ 2, 3, and 5. A policy reason supports that
interpretation:    Both the constitution   and the statute
contemplate   multi-county  emergency  services   districts.
Certainly, the legislature would have intended ~for all areas
within the district to be subject to the same maximum    tax.
The creation of multi-county districts would be considerably
complicated if the commissioners court of every participat-
ing county could propose a different maximum tax rate.    See




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Honorable Mike Driscoll - Page 5    (JM-1010)




Attorney  General  Opinion JM-681     (1987).   See   uenerallv
V.T.C.S. art. 2351a-8, § 8.

     Of course, nothing   in the constitution   or statutes
would require that the maximum tax authorized be levied    in
any particular  year. The commissioners court would have
authority to levy a tax of' six cents on the $100' valuation
if it chose to do so.

     The second question we will discuss is one you raise in
your brief but do not include in your list of questions.
That question is whether the legislature may grant the board
of an emergency services district the authority      to levy
taxes. Article III, section 48-e provides that laws may be
enacted to authorize the commissioners court of participat-
ing counties to levy a property tax.        a    Tex. Const.
art. III, 5 48-d   (authorizing the creation of rural fire
prevention districts and authorizing   an ad valorem tax "in
said districts").     You point out, however,   that several
sections of article 2351a-8 appear to authorize the board of
an emergency services district to levy taxes. See, e.a
V.T.C.S. art. 2351a-8, !j§ 14(5), 19. Cf. V.T.C.S.       art:
2351a-8, 5 20 (providing that district may issue bonds only
with approval of commissioners   courts of all participating
counties).    Because we must .construe a st~atute to be
constitutional if possible, we conclude that any provision
that appears to give the board of an emergency       services
district authority    to levy taxes must be read to give a
board such authority gnlv       with the aooroval    of   the
commissioners courts of all oarticinatina counties.   See Key
Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d   839,
849 ITex. 1961)     (statins that, if possible,   court must
construe statute to avoid-repugnancy tb constitution).

     YOU next ask:

        In the event that a rural fire prevention
        district petitions for the conversion of said
        district into an emergency services district,
        what is the maximum ad valorem tax rate which
        may [be] levied annually?

Section 33 of article 2351a-8 provides:

            (a) Qualified voters who own taxable  real
        property in a rural fire prevention   district
        may present a petition to convert the rural
        fire prevention   district into an emergency
        services district in the manner provided by




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Honorable Mike Driscoll - Page 6      (JM-1010)




        this Act for the' creation of       an    emergency
        services district.

            (b) If a rural fire prevention district is
        converted into an emergency       services  dis-
        trict, the     emergency    services    district
        assumes all     obligations   and    outstanding
        indebtedness of the rural fire prevention
        district that it succeeds.

Once a rural fire prevention district became an emergency
services district, it would be governed by the laws applica-
ble to emergency services districts.  Consequently, it would
be authorized to levy an ad valorem tax not to exceed ten
cents on the $100 valuation.

     Your final question is:

       What is the maximum ad valorem tax rate which
       may be levied in support of an emergency
       services district whose boundaries overlap or
       are coterminous with a rural fire prevention
       district?

Section 8 of article.2351a-8 states that~if any area includ-
ed within the boundaries of a rural fire prevention district
is included within the boundaries of an emergency   services
district, the commissioners court shall call an election  to
confirm the organization   and authorize the levy of an ad
valorem tax in an amount not to exceed two cents on the $100
valuation.

                        SUMMARY

          Article 2351a-8, V.T.C.S., requires that
       voters determine whether an emergency servic-
       es district be created with authority to levy
       a tax not to exceed ten cents on the $100
       valuation.  It does not permit voters      to
       consider whether    an   emergency   services
       district shall be created with a maximum
       taxing authority of less than ten cents. on
       the $100 valuation.

           Article  2351a-8 must be construed
        allowing an emergency services district    tz
        levy taxes with the aooroval of the commis-
        sioners courts of all particioatina counties.




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Honorable Mike Driscoll - Page 7     (JM-1010)




           If a rural     fire prevention    district
        becomes an emergency  services district,  the
        maximum taxing authority   for the district
        would be ten cents on the $100 valuation.

           If a rural fire prevention district    lies
        wholly or partially within the boundaries   of
        an emergency services district, the maximum
        taxing authority   for the district would be
        two cents on the $100 valuation.




                                     ~J I M  MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

,JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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