                THE     ATTORNEY    GENERAL
                           0F TEXAS
P
                            April 12, 1988



    Honorable   Hugh Parmer                       Opinion   No.   JM-891
    Chairman
    Intergovernmental   Relations                 Re:    Whether an emergency
        Committee                                 communication    district    is
    Texas State Senate                            authorized    under    article
    P. 0. Box 12068                               1432e, V.T.C.S.,     to supply
    Austin, Texas     78711                       emergency     communications
                                                  service     under     contract
                                                  with other jurisdictions
                                                  (RQ-1338)

    Dear   Senator    Parmer:

          You ask three    questions   in regard to the     authority
    and   operation   of   the   Lubbock  Emergency    Communication
    District.    We restate those questions    as follows:

                 1.  Does the district     have the   authority
             to contract to    provide emergency     communica-
             tions services to other jurisdictions      without
             those   jurisdictions    becoming   part    of  the
             district?

                 2.  Does the district   have the   authority
             to impose an    additional fee   on an  incoming
             jurisdiction   to cover the costs of   providing
             emergency    communication  services   to    that
             jurisdiction?

                  3.  How and  when does  the membership                    of
              the board change   when new jurisdictions                    are
              added to the district?

    We have been informed by a brief submitted      in response to
    your questions    that the  Lubbock Emergency     Communication
    District  [hereinafter  the  district]  was   created in     1986
P
    pursuant  to article 1432e, V.T.C.S.   [hereinafter    the act].
    Acts 1985, 69th Leg., ch. 288, at 1331.

            Section 2 of        the   act   identifies      the purpose      of   the
    act    as follows:




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Honorable   Hugh   Parmer   - Page   2   04-891)




            It is the purpose of this        Act to      esta-
        blish   the   number    9-l-l    as  the      primary
        emergency    telephone     number     for   use      by            ?
        certain local governments       in this state       and
        to encourage   units    of local government         and
        combinations   of those units of local govern-
        ment to develop     and improve emergency         com-
        munication   procedures     and facilities       in   a
        manner that    will    make possible      the    quick
        response to any person calling the telephone
        number 9-l-l seeking police, fire,          medical,
        rescue, and other emergency       services.     . . .

The district  is composed of Lubbock County     and all incor-
porated cities located     in Lubbock County.    The questions
arise because    the district   has   received inquiries    from
Hale County   and   the   City  of   Plainview  in   regard   to
becoming  a part of the district    or receiving the services
of the district.

      Your first question,        regarding   the authorfty      of the
district to    contract to      provide emergency       communication
services to    a jurisdiction        that    is not     part    of   the
district,   is answered      in the affirmative.        We understand      -,
your question to be       whether an entity that        is authorized
to become a part of the district pursuant           to   the act may,
in the alternative,       merely contract      for 9-l-l     services.
The Interlocal    Cooperation      Act was    enacted in 1971      with
the purpose of improving       "the efficiency and effectiveness
of local governments       by authorizing     the   fullest possible
range of    intergovernmental      contracting     authority    at   the
local level."       V.T.C.S.    art.    4413(326),   51.     That    act
allows local governments        to contract    for   the performance
of governmental      functions     and services.       V.T.C.S.     art.
4413(32c),   54.     Section 3(l)      of the   act defines      "local
government"   in part as      'Ia county; a home rule city          or a
city, village,    or town organized      under the general      laws of
this state:    a special      district."      Section 3(2)      defines
lqgovernmental functions      and services"     as "all or      part of
any function     or   service     included within      the   following
general areas:      police protection     and   detention    services;
fire protection     . . . public health and welfare."

      That act would seem      to have anticipated     exactly the
kind of contract under consideration       here; however    section        ?
4(b) requires     that   all parties    to  a contract     for   the
performance    of governmental   functions  or services     must be
authorized   to perform    those functions     or services.      See
Attorney   General Opinion Nos. H-28 (1973); H-392 (1974).
                                                                           ?




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Honorable   Hugh   Parmer   - Page   3     (JM-891)




The Lubbock Emergency   Communication    District   is authorized
to   provide   9-l-l   emergency    service.      See   uenerally
V.T.C.S.   art. 1432e.

      In general, the duty of municipalities        to provide   for
the health, safety, and      welfare of their      inhabitants   and
their authority    to do so through ordinance     and contract     is
well established     in Texas     law.    &S    Texas-New    Mexico
Utilities   Co. v. Citv of Teacue      174 S.W.2d    57 (Tex. Civ.
APP. - Fort    Worth 1943, writ     iefld w.o.m.):    Neal   v. San
Antonio Water S oolv       21; itWin;     (Tex. Civ. App.      - San
Antonio 1919, wzit r;fld)         h     T lewhone C 0. v. Citv of
          182 S.W.42    (Tex. Civ.   Appf! - Dallas 1915,       writ
sr     - Local Gov't Code 5551.001,      51.012, 51.014, 51.032,
51.051: 51.072.

      Counties do not have the broad range              of authority     in
the area of health,         safety and welfare that         cities have.
Counties have no        powers or duties       except those that       are
expressly   granted and defined by statute             or constitution.
Harrison   Countv v. Citv        of MarshalL      253 S.W.2d     67 (Tex.
Civ. App. - Fort Worth 1952, writ rei'd); Attorney                General
Opinion JM-789      (1987).     We find authorization       for a county
to provide 9-l-l emergency          service only      in article 1432g,
which authorization         is limited     to a    county    that has     a
population    of    more    than    1.5   million     and   in which      a
communication     district      has   not   been    established      under
article 1432c,       V.T.C.S.     Accordingly,      we    find that    the
district may contract with a county that               comes within the
terms of article 1432g and           with any city, general         law or
home rule,      that has     an ordinance      allowing     the city     to
provide 9-l-l emergency         service.    Any such      contract would
need to    meet     the    requirements    of   both    the    Interlocal
Cooperation     Act    (article     4413(32c))    and   the    district's
enabling act       (article     1432e).     Hale    County     does   not,
however,   fall within       this statute because         its population
is substantially       less   than 1.5 million.         Therefore,    Hale
County may participate         in the district only        by joining as
a member jurisdiciton        pursuant to article 1432e, V.T.C.S.

      Your second question      concerns the     authority   of   the
district to impose on a jurisdiction,        which    is becoming   a
part of the     district,   an additional    charge to cover      the
cost of providing     service.    Section 27 of the act provides
that a public agency in the county in which            the district
is located or in an adjoining       county may become      a part of
the district    on adoption of a resolution       by the governing
board of the public agency and approval          by the district's
board.    Section 3(2)     of the   act defines "public      agency"




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Honorable   Hugh   Parmer   - Page   4   W-891)




as *'any city   or   county that    provides    or has       authority
to provide    fire-fighting,    law     enforcement,        ambulance,
medical,   or other emergency   services."                               ?

      Section 11(c) enumerates      charges that     are assessable
to public    agencies    that   enter the     district   after    its
formation.     That section expressly     authorizes   the board to
charge the incoming jurisdiction        "an additional    amount of
money to cover the      initial cost of providing       the service
to the    incoming    jurisdiction."     Accordingly,    we   answer
your second question      in the affirmative.

      Your third    question   involves     the reorganization     of
the board upon the addition of new jurisdictions.            For the
purposes   of this opinion we will assume        that an adjoining
county is to    be added to      the district.    As   noted above,
section 27 of    the act     clearly permits     non-participating
jurisdictions   to   join    the   district    after   its   initial
formation   by the joint action of the board of managers          and
the governing   body of the incoming jurisdiction.

      Because the city of     Lubbock meets the    definition   of
"most populous  city"    found in    section 3(6)    of the   act,
section 6(a) governs the appointment       of the members   of the       ?
board of managers.    That section reads in part as follows:

            Sec. 6.  (a)   If the district has a city
        meeting the   definition     of   'most   populous
        city,' the district's    governing   authority   is
        a board of managers   composed of:

            (1) one voting member for each county in
        the district, with   the commissioners   court
        of each county appointing  its own member:

            (2) two voting members         appointed  by    the
        governing  body of the most        populous  city    in
        the district:

            (3) one voting member    appointed  by   the
        governing body of   the second-most    populous
        city in the district:

            (4)   one   voting     member    appointed     to
        represent   the other     cities and towns      lying
        wholly or partly      within the district,       that
        appointment     to   be   made   by   the    mayor's
        council    established     to   administer     urban
        development   block     grant   funds    if  such    a




                               p. 4367
    Honorable   Hugh   Parmer   - Page   5   (JM-891)




            mayor's council    exists    and, if    a mayor's
            council does not    exist, then      by action  of
            the other board members,      on the advice    and
            recommendation  of   the governing      bodies  of
            all other cities and     towns lying wholly     or
            partly within the district:      and

                (5)  one nonvoting        member   appointed     by
            the principal  service       supplier.

    While the legislative   intent to change   the composition   of
    the board upon the addition of new territory      is not clear
    from the language of section 6(a), such an intent is clear
    from the language  found in section 6(b), which governs the
    composition of the board where there is     no "most populous
    city" within the   district.   Section   6(b)(l)(B)  reads   as
    follows:

                [I]f only one county was in the           district
            as the district       was originally     created     but
            more than     one county      is currently      in   the
            district,    two   voting members       appointed     by
            the commissioners        court   of the     county    in
P           which the     district was      originally      located
            and one voting member for each other             county
            in   the    district,     with   the    commissioners
            court    of   each    of   those    other     counties
            appointing     its own member.     . . .

    That section clearly indicates       that the    membership   of the
    board will change with a change in the territory             that is
    included in     the   district.   We    find   no reason    in that
    regard to    distinguish     a district    that   includes a most
    populous   city    from one   that does    not.   The   legislature
    intended to create a representative        board, albeit remotely
    representative     in the   case of other    cities and towns      in
    the district    (M    section 6(a)(4) above).

          The legislature    has given      no direction    in   regard to
    the change    in   the   membership      of   the   board    upon    the
    addition of    new    territory.     We   can    find no    reason    to
    unseat the member      currently   representing     the    second most
    populous  city upon the addition of another city.              Further-
    more, there is public policy to be served by allowing that
    member to serve     the remainder     of    his term.    The    statute
    does not, however,      contemplate     the immediate      addition   of
    an additional     member    to   the    board.     Consequently,      we
    conclude that the member currently          appointed   by the second
    most populous    city should serve the remainder         of his term,




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Honorable   Hugh   Parmer     - Page     6   (JM-891)




and the member    appointed by the   newly added second  most
populous   city should not begin to serve his term until the
completion   of  the   term of  that   member   whom  he will                ?
replace.

                               SUMMARY

              The Lubbock Emergency      Communication    Dis-
        trict has the authority      under the    Interlocal
        Cooperation   Act to contract to provide         emer-
        gency communication     services to jurisdictions
        that are not part of the district.          The   dis-
        trict has the authority      to impose a fee on an
        incoming jurisdiction      to cover the      cost   of
        providing   emergency   communication    services to
        that jurisdiction.       The   membership     of   the
        board will not change until the expiration          of
        the term of     the member who     will vacate     the
        board.




                                              JIM      MATTOX
                                              Attorney  General   of Texas

MARY KELLER
First Assistant     .Attorney    General

LOU MCCRKARY
Executive  Assistant        Attorney     General

JUDGE ZOLLIE STEAKLKY
Special Assistant  Attorney            General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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