                                           July 20, 1999



The Honorable Delma Rios                        Opinion No. E-0082
Kleberg County Attorney
P.O. Box 1411                                   Re: Whether a commissioners court may purchase
Kingsville, Texas 78364                         tire-fighting equipment for or pay a volunteer fire
                                                department without having contracted with the
                                                volunteer fire department to provide tire-protection
                                                services for county residents (RQ-1109)

Dear Ms. Rios:

        You ask whether a county commissioners court may purchase fire-fighting equipment for or
pay a volunteer tire department in the absence of a contract between the two entities under which
the volunteer fire department provides fire-protection services for county residents as consideration
for the equipment or payment. We conclude the county commissioners court may not.

        You indicate that the Kleberg County Commissioners Court has, for several years,
“supplemented [the] budget[s]” of the Ricardo and Riviera volunteer tire departments. Letter from
Honorable Delma Rios, Kleberg County Attorney, to Honorable Dan Morales, Texas Attorney
General (Apr. 6,1998) (on tile with Opinion Committee) [hereinafter “Request Letter”]. This year,
you state that the commissioners court has budgeted $25,000 for the Ricardo organization and
$20,000 for the Riviera organization. Id. As you describe the arrangement, the commissioners court
does not simply hand the budgeted funds to the volunteer tire departments; rather, the volunteer fire
departments submit purchase orders, up to the budgeted limits, to the commissioners court for its
approval. Id. The county pays the expenditures out of its general fund, you continue, and the county
auditor annually audits the volunteer fire departments’ accounts. Id. We assume, although you do
not inform us, that the county supports these volunteer fire departments because they provide tire-
protection services to county residents living outside the municipal limits of Ricardo or Riviera.

        Section 352.001 ofthe Local Government Code authorizes a county commissioners court to
provide, either on its own or under a contract, fire protection to county residents who live outside
a municipality (to whom we will refer simply as “county residents”):

                     (a) The commissioners court of a county may furnish tire
                 protection or tire-fighting equipment to the residents ofthe county.
                 who live outside municipalities.
The Honorable Dehna Rios - Page 2              (X-0082)




                   (b) The commissioners court may:

                       (1) purchase fire trucks or other fire-fighting equipment;

                           and

                        (3) contract with the governing body of a municipality located
               within the county or within an adjoining county to use fire trucks or
               other tire-fighting equipment that belongs to the municipality.

                   (c) The commissioners court of a county may contract with an
               incorporated volunteer tire department that is located within the
               county to provide tire protection to an area of the county that is
               located outside the municipalities in the county. The court may pay
               for that protection Tom the general fund of the county.

TEX. LOCAL GOV’T CODE ANN. 5       352.001 (Vernon 1999).

        Accordingly, a county commissioners court may provide fire protection to county residents
in one of two ways. See id. Under section 35 1.001(a), a county may furnish fire protection itself.
See TEX. LOCAL GOV’T CODE ANN. 5 351.001(a) (Vernon 1999). A county that furnishes tire-
protection services itself may, under subsection (b)( 1), do so using its own fire-fighting equipment
or, under subsection (b)(3), tire-fighting equipment leased from a municipality. Alternatively, under
subsection (c), a county commissioners court may furnish fire-protection services to county residents
by contracting with an incorporated volunteer tire department to provide the services.

         Because section 352.001(c) explicitly sets forth the means by which a county may interact
with a volunteer tire department to provide fire protection to county residents, we believe the statute
excludes any other means of interaction with a volunteer fire department. A county commissioners
court may exercise only those powers that the state constitution and statutes confer upon it, either
explicitly or implicitly. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Abbott Y.
Pollock, 946 S.W.2d 513,517 (Tex. App.-Austin 1997, writ denied). Moreover, where, as here, a
statutory power is granted and the method of its exercise is prescribed, the prescribed method
excludes all others and must be followed. See Foster v. City of Waco, 255 S.W. 1104, 1105 (Tex.
1923); Cole v. TexasArmyNat ‘1Guard, 909 S.W.2d535,539 (Tex. App.-Austin 1995, writdenied);
Tex. Att’y Gen. Op. Nos. JC-OOll(l999) at 3, DM-424 (1996) at 4. A county that desires to furnish
fire-protectionservices tocountyresidents bycontracting withanotherentitymust, consistentlywith
subsection (c), do so under a contract with an incorporated volunteer tire department. Section
352.001 does not permit a county to purchase fire-fighting equipment for a volunteer fire department
or to pay a volunteer tire department absent a contract.
The Honorable Delma Rios - Page 3                (X-0082)




        You suggest that Government Code section 418.109(d), which was enacted in 1995,
authorizes the practice at issue in this request. That subsection authorizes a county to provide
“mutual aid assistance” to a tire protection agency or organized volunteer group upon request as part
ofamutual-aidarrangement.      TEX.GOV’TCODEANN.5 418.109(d)(Vemon 1999). Section418.109
is designed to encourage political subdivisions not participating in intejurisdictional emergency
management plans, see id. 8 418.106, to “make suitable arrangements” to aid each other “in coping
with disasters.” See id. 5 418.109(a). Thus, section 418.109 as a whole tries to facilitate both
disaster mitigation prior to a disaster and a political subdivision’s response in the event that a
particular disaster occurs, e.g., a tornado or uncontrollable wildfire:

                The problems in Florida and Louisiana in coping with the aftermath
                of Hurricane Andrew and extensive fires in central and west United
                States during 1993 and 1994 brought into focus the need for a
                statewide mutual aid plan.

HOUSECOMM.ONPUBLICSAFETY,BILLANALYSIS,Tex. Comm. Substitute H.B. 2872,74th Leg.,
R.S. (1995); see also HOUSECOMM.ONPUBLICSAFETY,BILLANALYSIS,                  Tex. S.B. 1695,74th Leg.,
R.S. (1995). Section 418.109(d) encourages political subdivisions to enter into mutual-aid
agreements prior to the occurrence of any disaster and thereby permits apolitical subdivison to assist
another, catastrophe-stricken political subdivision in its response to the disaster. But the section does
not authorize a county to make a gift to a volunteer fire department in nonemergency circumstances
in the absence of a mutual-aid agreement.

        Nor does article III, section 52(a) of the Texas Constitution authorize the county
commissioners court to make the arrangements you describe without a contract, thereby avoiding
the contract requirement of section 352.001(c) of the Local Government Code. The Texas
Constitution prohibits a county from making a gratuitous contribution:, any payment (monetary or
in-kind) must serve a public purpose, must be in exchange for a quid pro quo, and must be
accompanied by controls sufficient to ensure that the public purpose is accomplished. See TEX.
CONST.art. III, 5 52(a); see also Tex. Att’y Gen. LO-96-035, at 3 n.3. You suggest that, under Letter
Opinion 96-035, “it might be possible [under article III, section 52(a) generally] to insure sufficient
controls without a formal contract.” See Request Letter, supra, at 3. But Letter Opinion 96-035
concerned a county’s contribution to a nonprofit organization whose purpose was to assist industrial
development; it did not involve a contribution to a volunteer tire department governed by section
352.001(c). Moreover, article III, section 52(a) establishes a minimum standard to which the
legislature may, by statute, add levels of security. With respect to a county’s relationship with a
volunteer fire department that provides fire-protection services for county residents, the legislature
has required a contract, and a county must adhere to that statutory requirement.

        In sum, a county commissioners court may purchase tire-fighting equipment for or pay
money to a volunteer fire department only if the volunteer fire department has contracted with the
county to provide fire-protection services for county residents. This office previously has articulated
other requirements, which you do not question: the payment (whether in-kind or in cash) must
The Honorable Delma Rios - Page 4             (~~-0082)




be reasonable; and the payment must be made in accordance with the county budgeting statutes,
see TEX. LOCAL GOV’T CODE ANN. ch. 111 (Vernon 1999) and other applicable statutes. See
Tex. Att’y Gen. Op. No. V-101 (1947) at 5; see also Tex. Att’y Gen. Op. Nos. O-6160 (1944) at 3,
O-4300 (1942) at 3. In addition, the county must make the payment from the county’s general fund.
SeeT~x. LOCAL GOV’TCODEANN. 8 352.001(c) (Vernon 1999); see also Tex. Att’y Gen. Op. Nos.
O-6160 (1944) at 3,0-4300 (1942) at 3.

                                       SUMMARY

                    A county commissioners court may purchase fire-fighting
               equipment for or pay a volunteer tire department only ifthe volunteer
               fire department has contractedwith the county to provide fire-fighting
               services to county residents living outside the boundaries of a
               municipality.




                                              JOHN     CORNYN
                                              Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
