                              December    30.   1986




Eonorable Terra1 R. Smith                              Opinion No. JM-605
Chairman
Criminal Jurisprudence Committee                       Re: Whether a rural fire pre-
Texas Rouse of Representatives                         vention district    must continue
P. 0. Box 2910                                         to provide     services   to and
Austin, Texas    18169                                 888688 taxes against residents
                                                       of an area recently annexed by
                                                       a municipality

Dear Representative      Smith:

      You ask two questions about the status of an area of a rural fire
prevention   districts annexed by a city.   These questions, in reverse
order, are as follows:

                 1. What proce.dures are necessary    to remove a
            full-purpose  municipal   annexation   area from the                  ‘*
            tax rolls and obligations   of a rural fire preven-
            tion district  created prior to September 1, 1985?

                 2. Must a rural            fire     prevention    district
             created prior to September 1, 1985, assess taxes,
             provide direct services         and be liable     to residents
             of a recently      annexed area into an article          1269m,
             V.T.C.S.,    civil     service      municipality    which was
             within the boundaries of the fire district                prior
             to full-purpose       annexatioa      of the area into the
             municipality?

      Article     2351a-6, V.T.C.S.,          provides     for creating      and governing
rural fire       prevention     districts.        Set Tex. Coast. art.           III,   148-d
(authorizing      legislature     to provide for establishment             and creation of
rural     fire    prevention      districts).         A 1985 amendment to article
23510-6, V.T.C.S.,         added   provisions      dealing     with the inclusion        in a
rural    fire    prevention      district      of   territory     in   the    corporate    or
extraterritorial       jurisdiction      of a city.       The enactment of Senate Bill
No. 783 amended section            8A of article        2351a-6. V.T.C.S.,         and added
sections      8B and 14b to article        2351a-6, V.T.C.S.         See Acts 1985, 69th
Leg., ch. 93, at 525.          Section 8A now requires the zissioners                   court
to determine that the proposed district                  would provide certain public
benefits      within any extraterritorial            jurisdiction     of a city that it
proposes      to encompass. as well as any area within the city limits.
Section 8B. a new provision,            provides that territory          within a city or



                                       p. 2702
Honorable      Terra1 R;-Smith      - Page 2      (m-605)




its extrateqitorial         jurisdiction     may not be.included      in a rural fire
prevention      district.    unless    the governing       body of the city      gives
written consent       to the inclusion.        V.T.C.S.   art. 2351a-6, §8B(a).      If
the governing body does not consent, voters and property owners of the
territory     proposed for inclusion        in -the district   may petition   the city
goverument to provide           it; -with.. f-ire  protection.    Id.    §8B(b).   The
failure.or,refusal        of the governmental body to provide fire protection
constitutes      consent to inclusion       of the area in the proposed district.
Id.
-     588(c).

        Section      14b is a new section      which provides      as follows:

_ .~.                 See: 14b.      (a)    The governing body of a city
             .‘: that has an area .within its corporate              or extra-
                 territorial     jurisdiction        included within a rural
                 fire     prevention      district      may, on agreeing       to
                 provide fire protection           to the srea as provided by
                 Section 8B of this Act . . . notify            the secretary
                 of the board of fire commissioners in writing that
                 the     area     is     excluded _ f ram the       district’s
               :territory.
    -   .~
                    (b)    On receipt  of the notice under Subsection
                (a) of this section,       the board shall    cease to
                provide further service      to the area, exclude the
                axes by-order from the district,     and .redefine the
                district~s    boundaries.

        The bill       analysis   of Senate Bill    No. 783 states      of section   14b:

                This section provides that if .a~city has territory
                within a district     and the city agrees to provide
                fire    protection     to    the   territory    . . .    the
                governing body shall notify        the secretary     of ‘the
                board of fire      cowsissioners     in writing    of this
                change.     On receipt     of this    notice,    the board
                shall cease to provide service.

 Bill Analysis to S.B. No. 783. prepared for Aouse Committee on Urban
 Affairs,  filed in Bill File to S.B. No. 783, Legislative  Reference
 Library.

       In Attorney     General Opinion JM-453 (1986) this office           determined
 that section     14b applies to the removal of territory           from rural fire
 prevention    districts      created before     September 1, 1985.      See Attorney
 General Opinion JX-453 (1986).               See also   Attorney Genex        Opinion
 .I&591 (1986).       Attorney    General Opinion JM-453 (1986) also considered
 how the removal of territory             from arural    fire-~ prwentio=.district
 would affect .its tax* rolls          and obl~igations.    The opinion noted that
 except   for    the issuance        of bonds and notes,        the district       could
 contract only that indebtedness payable out of excess funds on hand or
 current revenues. for the year.             Thus, the obligations     at issue were



                                          p. 2703
Eonorabls   Terra1 R. S&h       - Page 3     (JM-605)**




obligations    to bondholders,     ObligatiOnS protectid     by   the contract
clauses of both the federal and Texas Constitutions.           See U.S. Const.
art. 1, 510, cl. 1; Tex. Const. art. I, 516; Attorney Feral             Opinion
JM-453 (1986)     and authorities       cited therein.     Legislation    which
removes the source of repayment tu -bondholders without substituting
something of equal efficacy      way impaik the obligation     of contract and
violate   the coustitution.   - City of- Aransas Pass v. Keeling.      247 S.W.
818, 821 (Tex. 1923); Burns v. Dilley Couoty Line Independent School
District,    295 S.W. 1091, 1094 judgment adopted          (Tex. Cosm’n App.
1927); Attorney General Opinions J’M-453 (1986); O-1205 (1939).

     Attorney General Opinion JU-453 concluded that an area removed
from a rural fire district   would still  be required,to   pay its pro rata
share of such obligstions     existing   when the territory    is’withdrawn
from the district.   It stated as follows:

            Article    2351a-6 contains no express provision             for
            payment of the excluded territory’s           pro rata share
            of an existing      district     indebtedness.      Cf. Water
            Code 5553.268,       54.731 -(on payment of pro            rata
            share of existing       district    indebtedness.     excluded
            territory     and its      taxpayars    are released       from
            liability    to the district       and payment of taxes).
            It    is   our opinion        that   article     2351a-6,      as
            recently. amended to authorize          the exclusion      of a
            city from a district,         is not facially     unconstitu-
            tioual .     In    particular      situations      where     the
            obligation      of contract      to bondholders      would be
            impaired,    the statute may be unconstitutionsl               as
            applied without the col2ectiou            of taxes   from the
            excluded area to pay its pro rata share of obliga-
            tions to bondholders that are in existence              at the
            time the city is withdrawn from the district.                See
            Attorney    General Opinion MW-337 (1981).                   -

Attorney    General Opinion.JM-453       (1986)   at   4.

       The quoted     holding    of Attorney    General     Opinion   JM-453 is
applicable  where the territory      detached from the rural fire prevention
district   constitutes      less   than the entire    city.      Thus, Attorney
General Opinion JM-453 provides         the answer to your first       question.
See, e.g.,  art. 2351a-6, 1119-22.
                                                                :
      Our answer to question      one also provides        a partial   answer to
question two, which asks as follows:
                                         .
          Must a rural       fire  prevention     district    created
          prior to September 1, 1985, assess taxes, provide
           direct   services -and be liable     to residents      of a
           recently    annexed area into      a 1269m. V.T.C.S.,
           civil    service   municipality    which was within the




                                      p. 2704
 Eonoxable     Terra1 k.. Smith - Page 4          (JKA605k




               boundar,ies .of tlae fire distric’t            prtot.. to full-
               purpose-‘annexation  of the area             into the rmmici-
               palsty?

          ken     if -thedfty       government. . rexovu        the recently       annexed _ area
                         -.                             .
  frox the. rura&; fire preVentSor&. dlst+ct,                  its pro 3ata share of the
  disirict!‘a     .oblfgatj.ons mm.+ ,be firlfilled.           After    rewvxl,    however, the
  board of fiir’~qommlda~ionerx of tie. ‘district                   “shall   cesse to provide
  fyrther service ,to t&area.             ~. . .” V.T.C.S.          art. 2351a-6, S14b.
                                          .
                                           ...
          In tie ‘event that...the city does’ not r-e.                  ,the recently    annexed
  area from .the.firc’diatrict,.,that             area ViU continue to be,part of the
  dia,trfcF~:,.     Article ,, ‘1269ia,.: ,V.T.C.S.,       eatablfshea      a firemen’s       and
  polickken’~~ civil         senrice in cities        irlthin the statutory description,
;-~.but it doas not deal with the firefighting                    responsibilitfea     of those
  cities.      ‘Tbe.diatrict~wlll       continue to have tha same powers and duties
  tow&d thenresidents            of the annaxed area axe it had prior to the annex-
  ation.      A city,    with;fta     broad statutory       police powers, may overlap in
  terrkory       .eth    a special      purpoae:.municipu~         entity,    such as a rural
  fire’ proteciion       district.     City    of Pelly    v..Earria     County   Water Control
  6 lmprovwent          District     No. 7, 198 S.U.2d 450 (Tex. 1946); Attorney
  General Opinioa J&400 (1985).

                                     ‘-~ B C.M   M A. R Y    -

                  When .a mini~ipality-  annexes territory    within a
              rural fire :preventlon     district  crested   prior to
           .’ Skptembsr .l; 1985, the territory      remains part of
              then district-   unless the city removes it .from the
              diptrict   , pursuant   to  section   14b of ‘article
              2351ak6, V;TIC.S.      men a samicipality    removes an
              annexed iafea:from the district.    the district    is to
              cease providing services     to that &ea.




                                                       AttorneyGenera.l       of Tbxas

  JACg HIGDTO!&
  First Aaaiataat .Attorney         General

 MARYKEUER -
 txecutive Aassistant Atiomey            Genera1

  RICK GILPIlo
  Chsirman. Opinion‘ Cmsnittee

  Prepared by Susan L. Garrison
  Assistant Attorney General



                                         p. 2705
