             THE    ATTORNEY            GENERAL
                       OF   TEXAS


                       August 17, 1990



Honorable David M. Motley      Opinion No. JR-1209
Kerr County Attorney
323 Earl Garrett               Re:    Authority of a county to
Kerrville, Texas 78028         directly  fund a rural     fire
                               prevention district and related
                               questions    (RQ-1992)

Dear Mr. Motley:

     you advise that the creation of a rural fire prevention
district in part of Kerr County is contemplated.    YOU ask
first whether Kerr County may "directly fund" the district
if it is created.

     We note at the outset that.you have not elaborated     in
your request on the nature of the proposed "direct funding"
of the rural fire prevention district.     In the absence   of
greater specificity in your request, we will assume in the
following discussion that the funding of the district would
be in the nature of cant-yactual payments by the county    for
provision of fire protec-ion    services, by or through the
district, to non-incorporated portions of the county within
district territory.  Article III, section 52, of the consti-
tution prohibits  donations by counties to "corporations,lU
including political entities.   Bexar Countv v. Linden,    220
S.W. 761 (Tex. 1920); see also Tex. Const. art. VIII,      5 3
(taxation for public purposes only). Any funding of a rural
fire prevention district by the county would have to be in
furtherance of legitimate public purposes of the county,
with adequate controls to insure that benefits to county
residents are realized.     See. e.s   KV       Commissioners
Court of Marion Countv       727 S.W12de 66;. (Tex. App.     -
Texarkana 1987, no writ).'

     Inherent  in your question, then, is the question
whether payments   by a county to a rural fire prevention
district for provision of fire protection services   further
an authorized    county  purpose.  Local Government     Code
section 352.001 provides that a county commissioners   court




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Honorable David M. Motley - Page 2   (JM-1209)




"may furnish fire protection . . . to the residents of the
county . . . who live outside municipalities."         Section
352.001 codifies, without     substantive   change,    similar
language previously appearing   in article 2351a-1, V.T.C.S.
Acts 1987, 70th Leg., ch. 149, at 707; see also Local Gov't
Code 5 1.001     (no substantive    change  intended).     The
provisions of article 2351a-1 were first adopted in 1941.
Acts 1941, 47th Leg., ch. 360, 5 1, at 567.

     In 1949, section 48-d was added to article III of the
constitution empowering the legislature  to provide for the
establishment of rural fire prevention    districts  and to
authorize, with voter approval, levy of an ad valorem    tax
for the support thereof upon approval by districts' voters.

     In 1957, the legislature enacted the provisions        of
article 2351a-6, V.T.C.S., authorizing the creation of rural
fire prevention districts    "for the protection  of life and
property from fire and for the conservation        of natural
resources. 'I In 1989, the provisions of article 2351a-6 were
codified, without substantive change, as chapter 794 of the
Health and Safety Code. Acts 1989, 71st Leg., ch. 678, at
2230. Under the provisions       of Health and Safety Code
chapter 794, a county commissioners court, upon a petition
by voters for creation of such a district in the county, and
the making of findings as to the feasibility and benefit    of
a district, must fix the boundaries of the proposed district
and submit the issue of its creation and the levy of the
aforementioned   tax to the voters residing within         the
boundaries.   Health & Safety Code §!j 794.011 - 794.018.    If
the majority   of the qualified voters voting     approve  the
proposition,   the district    is   created as a     political
subdivision of the state with authority to provide        fire
protection facilities to prevent and extinguish fires in the
district.   Id. §!j 794.019, 794.031(7).   The governing  body
of the district is composed of five "fire commissionerstl
appointed by the commissioners court. Id. 5 794.033.

     It might be argued that once a rural fire prevention
district is created   in a county, the county loses its
authority under Local Government Code chapter 352 to provide
fire protection in the area of the county included in the
district.  Attorney General Opinion H-279 (1974) addressed
this issue in responding to the question whether a county,
the entire territory of which was included in a rural   fire
prevention district, might nevertheless contract with a city
for the latter's provision    of fire protection   in areas




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Honorable David M. Motley - Page 3   (JM-1209)




outside the city.   In its discussion  of the question,  the
opinion stated that while provisions of article 2351a-6 (now
Health and Safety Code chapter 794) "suggest the power of
fire protection districts is plenary, we do not believe they
lend support,   either expressly        impliedly,  to   the
proposition that the power is ex%sive.10        The opinion
concluded:

           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.

     We adhere to the conclusion of Attorney General Opinion
H-279 that a county retains authority      to provide   fire
protection, under the provisions   now in Local Government
Code chapter   352, even in areas where a rural         fire
prevention district has been established.1

     If, under Attorney General Opinion H-279, a county may
arrange for the provision of such services through a munici-
pality's. fire protection facilities, we see no reason why it
may not arrange for the provision of such services    through
the rural fire prevention     district  itself.   Concededly,
chapter 352 of the Local Government Code, the provisions now
governing county fire protection matters, does not specific-
ally provide for a county's contracting    with a rural fire
prevention district for fire protection services, while     it
does provide    for   such contracts with     municipalities,



     1. In support of our conclusion, we note that where     a
hospital district is created in county territory, the county
is thereafter   specifically prohibited   by the constitution
from itself providing     medical   services within district
boundaries.   Tex. Const. art. IX, 55 4, 9; see also id. art.
IX, § 13 (exception for mental health services):        36 D.
Brooks, Countv   a   Snecial   District Law § 26.28 et sea
(Texas Practice 1::s). That the constitution and statute;
are, in contrast,    silent as to whether     counties  retain
authority   to provide     fire protection    '   rural   fire
prevention district territory suggests, we tl?nk, that they
do retain such authority.




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Honorable David M. Motley - Page 4   (JM-1209)




adjoining counties, and incorporated volunteer fire depart-
ments.  Local Gov't Code 5 352.001.    We do not think these
provisions -- first adopted     prior   to   those    in   the
constitution or statutes authorizing creation of rural fire
prevention districts -- impliedly preclude counties*    making
arrangements   with rural fire prevention     districts     for
provision of such services.     Article 4413(32c),   V.T.C.S.,
the Interlocal   Cooperation Act, in section 4, authorizes
contracts between "local governmentsOq -- including   counties
and other "legally constituted    political subdivisions"    --
for l'performance of any governmental functions or services
which all parties to the contract are legally authorized     to
perform."   Rural fire prevention districts    are political
subdivisions authorized to provide fire protection services.
Health & Safety Code §!j794.003, 794.031(7).        As stated
above, it is our opinion that counties are also authorized
to provide the fire protection services in question.2

     You express concern in your request    letter that the
county's expending   tax revenues, obtained   from taxpayers
throughout the county, for fire protection services in the
portion of the county included in the rural fire prevention
district "would technically tax those outside the district
for a benefit they would never obtain." We think it is
inevitable. in the workings of most governmental units that



     2. Attorney General Opinion MW-375 (1981) concluded in
part that the portion of V.T.C.S. article 1606~ -- now Local
Government Code section 352.019(b)  -- requiring the county
fire marshal to coordinate the work of fire protection units
in the county, was    inconsistent with the more specific
provisions of article 2351a-6 -- now Health and Safety  Code
section 794.035 -- regarding the powers of the board of fire
commissioners of a rural fire prevention district, and that
the latter provisions   controlled, thereby precluding   the
fire marshal from coordinating fire protection   units of a
district.

     The county, in contracting with a rural fire prevention
district for the services you ask about will necessarily  be
requiring provision of services 'of a particular nature. YOU
do not ask about, and we do not address here, the scope,   if
any, of the fire marshal~'s role as coordinator     in these
matters.




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Honorable David M. Motley - Page 5   (JM-1209)




tax moneys   raised  from all the unit's taxpayers     are
sometimes applied to projects which do not equally benefit
all the unit's citizens.

     We do not understand you to suggest that the county,
while "funding" the district, will not, or does not intend
to, provide county residents in non-district territory    over
which the county has fire protection authority with any such
services.   Determinations as to allocation of expenditures
for fire protection     in the county will   involve various
factual considerations, such as the differing needs for such
services in different    parts of the county. Clearly,    such
determinations are, at least in the first instance, within
the reasonable discretion of the commissioners court.     m
e.cr.,     len v. Brazoria Countv 224 S.W.Zd 305 (Tex. Civ.
APP. - Galveston,   writ ref'd n1r.e.) (commissioners    court
determination of location of county fire truck). Of course,
in order to comport with the aforementioned    constitutional
prohibitions on donations and requirements     that expendi-
tures be for a public purpose, county payments to a rural
fire prevention   district for fire protection   services   in
district territory must secure for county residents of such
areas public benefits additional to those which would have
been provided by the district absent county funding.

     We understand your second question to be whether    the
county may "fundl' a volunteer fire department for provision
of fire protection services in non-incorporated areas of the
county if the volunteer fire department has also contracted
with a rural fire prevention district     in the county  for
provision of fire protection services.

     We have concluded with regard to your first question
that the county retains its authority under chapter 352 of
the Local Government Code to provide fire protection       in
non-incorporated areas of the county even if a rural fire
protection   district has been created encompassing      such
territory.   Local Government  Code section 352.001   speci-
fically provides for a county's contracting with volunteer
fire departments that are incorporated and located in the
county for provision  of fire protection services   in non-
incorporated areas of the county. We think it follows that
a county may contract with a volunteer      fire department
that is incorporated for the provision   of fire protection
services in non-incorporated parts of the county, even where
such areas are included in a rural fire prevention district.
See Attorney General Opinion V-1214 (1951) (no authorization




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Honorable David M. Motley - Page 6      (JM-1209)




for county contract for fire protection services with volun-
teer fire department that is incorporated).3

      We caution, as in our discussion       of your      first
question, that county "funding" of an incorporated volunteer
fire department    must be in consideration      for services
furthering a county purpose, with adequate        controls    to
insure that benefits     to
                         . . county  residents   are    thereby
realized. : Ke                                          Count
=UlZ=.   you sugg&t aOze:ario    wherein t:e cotnty would bh
"funding" a volunteer    fire department   which   itself was
already performing fire protection services, under contract,
for the rural fire prevention district.   Obviously if county
funding of the volunteer      fire department,    under    this
scenario, realized no additional benefit     to the county,
because the services in question were already being provided
by the volunteer fire department under its contract with the
district, such arrangements would contravene   constitutional
prohibitions on grants of public money and requirements that
public expenditures   be for a public purpose.       See. e.a.,
Tex . Const. arts. III, 5 52; VIII, § 3.

                        SUMMARY

           A county has, under Local Government  Code
        chapter 352, and the Interlocal   Cooperation
        Act, article 4413(32c), V.T.C.S.,   authority
        to contract with a rural fire prevention



     3. The Interlocal    Cooperation Act would not appear,
however, to independently authorize contracts with volunteer
fire departments since the latter are not "political      sub-     I
divisions" within the meaning of those provisions.      Though
volunteer fire departments are referenced in the constitu-
tion and statutes     in various  connections,  there   is no
provision for their establishment as political subdivisions.
See, e.o., Tex. Const. art. III, § 51-d (payment of assis-
tance to survivors of   members of "organized volunteer   fire
departmentsl'); V.T.C.S.   art. 6228f, § 2(a)(6)     (defining
"organized volunteer fire department"   for purposes of sur-
vivors'   assistance).   Rut see Attorney   General    Opinion
JM-821 (1987) (whether volunteer fire department is "govern-
mental body" under the Open Records Act, article    6252-17a,
V.T.C.S.).




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Honorable David M. Motley'- Page 7        (JM-1209)




        district   in the county for the latter's
        provision   of fire protection    services   in
        non-incorporated areas of the county included
        in the rural fire prevention district.        A
        county also has authority under chapter     352
        to contract with an incorporated     volunteer
        fire department     for provision    of    fire
        protection    services  in   non-incorporated
        areas, even if such areas are included in a
        rural fire prevention    district.    Adequate
        controls must be exercised in connection with
        such arrangements    to insure that     public
        benefits to county residents   of such areas
        are thereby obtained.




                                    -I lL@iJx
                                       Very truly y   s,


                                   /        L
                                   :     I M   MATTOX
                                       Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RKNEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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