                           ATTORNEY GENERAL OF TEXAS
                                       GREG       ABBOTT




                                           August 26, 2013



The Honorable Patricia Harless                    Opinion No. GA-1022
Chair, Committee on Environmental
  Regulation                                      Re: Authority to create overlapping
Texas House of Representatives                    emergency services districts that provide
Post Office Box 2910                              duplicative services and levy additional ad
Austin, Texas 78768-2910                          valorem taxes (RQ-1122-GA)

Dear Representative Harless:

        You seek an opinion regarding authority to create an emergency services district in
certain circumstances. 1 You tell us that an existing emergency services district-Travis County
ESD 2 ("ESD 2"), also known as the Pflugerville Fire Department-currently levies a 0.1% ad
valorem property tax but seeks additional revenue. See Request Letter at 1. You explain that
because the ad valorem tax is at the maximum amount permitted under the Constitution, "a
proposal ha[s] been put forward to create a new [emergency services] district (ESD 2A) that
would be exactly co[n]terminous with ESD 2 and provide the same services already offered by
that district, for the sole purpose of increasing the ad valorem tax revenue available." !d. You
ask four questions about the proposed creation of the overlapping emergency services district:

                1.      Does the Texas Constitution permit overlapping ESDs?

                2.      Can an ESD be created that overlaps and provides
                        duplicative services with another ESD?

                3.      Where two overlapping ESDs already exist, can one be
                        amended to provide duplicative services?

                4.      As above or otherwise, is the Pflugerville-area Travis
                        County ESD 2A, as currently proposed, permissible under
                        existing Texas law?


        1
         See Letter from Honorable Patricia Harless, Chair, Comm. on Envtl. Regulation, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (Apr. 12, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Patricia Harless - Page 2           (GA-1022)




Id at 1-2.

         Texas Constitution, article III, section 48-e authorizes the Legislature to "provide for the
establishment and creation of special districts to provide emergency services and to authorize the
commissioners court of participating counties to levy a tax on the ad valorem property situated in
said districts not to exceed Ten Cents (1 0¢) on the One Hundred Dollars ($1 00) valuation for the
support thereof ...." TEX. CoNST. art. III, § 48-e. When interpreting the Texas Constitution,
we, like a court, rely "heavily on its literal text and must give effect to its plain language."
Doody v. Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex. 2001). By its express terms, article
III, section 48-e neither permits nor prohibits overlapping emergency services districts. Thus, in
answer to your first question, the Texas Constitution neither permits nor prohibits overlapping
emergency services districts. It does authorize the Legislature to "provide for the establishment
and creation" of such districts. TEX. CONST. art. III, § 48-e. In exercising that authority, the
Legislature expressly permitted overlapping emergency services districts. See Jones v. Williams,
45 S.W.2d 130, 133 (Tex. 1931) (stating that "contemporaneous construction of a constitutional
provision by the Legislature, continued and followed, is a safe guide as to its proper
interpretation"). Texas Health and Safety Code section 775.0205(a), for example, provides that
"[i]f the territory in a district created under this chapter overlaps with the boundaries of another
district created under this chapter, the most recently created district may not provide services in
the overlapping territory that duplicate the services described in the statement required by
Section 775.018(g)." TEX. HEALTH & SAFETY CODE ANN.§ 775.0205(a) (West Supp. 2012); see
id. § 775.018(g) (requiring an existing district to specify the types of emergency services it will
provide in any overlapping territory of proposed district). Further, other provisions in chapter
775 expressly acknowledge the creation of districts with overlapping territory. See id. §§
775.018(f) ("If the territory of a district proposed under this chapter overlaps with the boundaries
of another district created under this chapter .... "); 775.0205(d) ("The creation of a district with
boundaries that overlap the boundaries of another district does not affect the validity of either
district.").

         In answer to your second question, chapter 775 expressly prohibits emergency services
districts in overlapping territory from offering the same emergency services.               Section
775.0205(d-1) states that "[t]he legislature finds that the performance of non-duplicative
emergency services in the overlapping territory of emergency services districts is complementary
to and not in conflict with the powers and duties of the respective districts." !d. § 775.0205(d-1)
(emphasis added). In addition, section 775.0205(a) expressly limits a newly created district with
territory overlapping an existing district from providing services that duplicate the services
provided by an existing district. !d. § 775.0205(a). These provisions indicate a legislative intent
to prohibit overlapping emergency services districts from providing duplicative services in the
same territory. Accordingly, overlapping emergency services districts may not provide
duplicative services in the overlapping territory. In answer to your third question, the above
conclusion also precludes an emergency services district from amending its provision of services
to provide duplicative services in the same territory.

        In response to your last question, briefing submitted to this office and news reports
indicate that the proposed ESD 2A does not have the requisite consent from either the
The Honorable Patricia Harless - Page 3                    (GA-1022)



Pflugerville City Council or the Travis County Commissioners Court. See Brief from John J.
Carlton and Kelli Carlton, for the ESD No. 2 and the Texas State Ass'n of Fire & Emergency
Servs. Dists., at 7 (May 24, 2013) (on file with the Op. Comm.) (disputing facts asserted in
Request Letter and stating that "[t]here is no currently proposed" ESD 2A); see also J.P.
Eichmiller, Travis County Commissioners Court Rejects Petition to Create New EMS Taxing
District, lMPACTNEws; March 4, 2013; Wendy Cawthon, City Rejects ESD Plan, Citing Tax
Increase, PFLUGERVILLE PFLAG, Feb. 15, 2013. 2 This lack of consent precludes any immediate
election regarding the petition to create ESD 2A. See TEX. HEALTH & SAFETY CODE ANN. §§
775.014(a) (West Supp. 2012) (providing that municipal "territory may not be included in the
district unless the municipality's governing body gives its written consent"); 775.015 (West
2010); 775.018 (West Supp. 2012) (providing that a county commissioners court may grant the
petition and call an election only upon certain findings after a hearing). Thus, your last question
appears to be effectively moot, and we do not address it. See Tex. Att'y Gen. Op. No. GA-0334
(2005) at 11 (declining to address moot questions).




       2
           Available at http://impactnews.com and http://archive.pflugervillepflag.com, respectively.
The Honorable Patricia Harless - Page 4         (GA-1022)



                                    SUMMARY

                     Pursuant to chapter 77 5 of the Health and Safety Code, two
              emergency services districts may overlap in territory but may not
              provide duplicative services in any territory where they overlap.
              Further, an emergency services district may not amend its
              provision of services in order to provide services duplicative of
              another overlapping emergency services district.




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
