When can a Texas county hold an election to create an emergency services district?

Plain-English summary

R. Lowell Thompson, the Navarro County Criminal District Attorney, asked the Attorney General which date the county could use to hold an election creating an emergency services district. An emergency services district is a special local district that funds fire protection and emergency medical services. Creating one requires a petition, a hearing before the commissioners court, the court's approval of the petition, and a confirmation election.

The timing question came up because a 2011 law, Senate Bill 100, reshaped the Election Code's uniform election dates, and the county was concerned about a conflict. The opinion worked through the statutes. Health and Safety Code subsection 775.018(e) says the election "shall be held on the first authorized uniform election date prescribed by the Election Code that allows sufficient time to comply with other requirements of law." Chapter 41 of the Election Code sets the uniform dates: the second Saturday in May in an odd-numbered year; the second Saturday in May in an even-numbered year, but only for a political subdivision other than a county; or the first Tuesday after the first Monday in November.

Applying those dates, the opinion reasoned that the odd-year May date did not apply because 2012 was an even-numbered year. The even-year May date applies only to a political subdivision other than a county, and an election to create an emergency services district is held by the county, so that date did not apply either. None of the seven exceptions in subsection 41.001(b) covered this kind of election. That left the November date. The opinion concluded that the next available date for the election was November 6, 2012, provided that date allowed sufficient time to comply with the other requirements of law.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Navarro County and its commissioners court (as the opinion described it): The opinion identified November 6, 2012, as the next available date for the emergency services district confirmation election, conditioned on leaving enough time to satisfy the other statutory steps.

The Navarro County District Attorney (as the opinion described it): The opinion answered the timing question and explained why both May uniform dates and the exceptions in subsection 41.001(b) did not fit a county-held election to create an emergency services district.

Anyone tracking emergency services district creation (as the opinion held for them): The opinion read Health and Safety Code subsection 775.018(e) together with Election Code section 41.001 to mean that a county's emergency services district election fell on the November uniform date in an even-numbered year.

Common questions

When can a Texas county hold an election to create an emergency services district?
According to the opinion, on the first authorized uniform election date that allows sufficient time to comply with other law, as required by Health and Safety Code subsection 775.018(e).

Why couldn't Navarro County use a May election date?
The opinion explained that the odd-year May date did not apply because 2012 was an even-numbered year, and the even-year May date applies only to a political subdivision other than a county. Because the emergency services district election is held by the county, neither May date was available.

Did Senate Bill 100 stop the county from holding the election?
No. The opinion worked through the uniform-date rules as amended and concluded that the November uniform election date remained available for the election.

Can a county move its general election date to another day?
The opinion noted in a footnote that section 41.0052 of the Election Code lets certain governmental bodies change the date of a general election, but that provision specifically does not apply to counties.

Background and statutory framework

Chapter 775 of the Health and Safety Code governs emergency services districts, which "may be organized as provided by Article III, Section 48-e, of the Texas Constitution." Tex. Health & Safety Code Ann. § 775.003 (West 2010). Creation requires a petition, a hearing, the commissioners court's approval, and a confirmation election, with the election date set by subsection 775.018(e): the first authorized uniform election date that allows sufficient time to comply with other law.

The uniform dates are in chapter 41 of the Election Code, as amended by Senate Bill 100. See Act of May 29, 2011, 82d Leg., R.S., ch. 1318, § 4, 2011 Tex. Gen. Laws 3804, 3810. Section 41.001(a) lists the second Saturday in May in an odd-numbered year, the second Saturday in May in an even-numbered year for a political subdivision other than a county, and the first Tuesday after the first Monday in November. Tex. Elec. Code Ann. § 41.001(a) (West Supp. 2011). The opinion found that, for an even-year, county-held emergency services district election, only the November date applied, and that section 41.0052(a) did not allow a county to move it.

Citations

Statutes:

• Tex. Const. art. III, § 48-e
• Tex. Health & Safety Code Ann. § 775.003 (West 2010)
• Tex. Health & Safety Code Ann. § 775.018(e) (West Supp. 2011)
• Tex. Elec. Code Ann. § 41.001(a) (West Supp. 2011)
• Tex. Elec. Code Ann. § 41.0052(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0925
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0925.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 7, 2012

The Honorable R. Lowell Thompson Opinion No. GA-0925
Navarro County Criminal District Attorney
300 West Third Avenue, Suite 203 Re: Proper date for holding an election in Navarro
Corsicana, Texas 75110 County to establish an emergency services district
(RQ-1010-GA)

Dear Mr. Thompson:

You ask about the proper date for holding an election in Navarro County for the purpose of establishing an emergency services district.[1]

Under chapter 775 of the Health and Safety Code, "[a]n emergency services district may be organized as provided by Article III, Section 48-e, of the Texas Constitution ... and by this chapter to protect life and health." TEX. HEALTH & SAFETY CODE ANN. § 775.003 (West 2010). The creation of such a district requires the filing of a petition, a hearing before the commissioners court, approval of the petition by the commissioners court, and the scheduling of an election. See id. §§ 775.011 (petition for district located in one county); 775.013 (contents of petition); 775.016 (hearing); 775.017 (approval of petition) (West Supp. 2011); and 775.018 (election) (West Supp. 2011). You explain that the commissioners court is at present attempting to schedule an election, but you are concerned that Senate Bill 100, enacted by the Eighty-second Legislature, may be in conflict with Election Code provisions that establish legislatively mandated uniform election dates. See Act of May 29, 2011, 82d Leg., R.S., ch. 1318, § 4, 2011 Tex. Gen. Laws 3804, 3810.

Chapter 775 states that "[t]he election shall be held on the first authorized uniform election date prescribed by the Election Code that allows sufficient time to comply with other requirements of law." TEX. HEALTH & SAFETY CODE ANN. § 775.018(e) (West Supp. 2011). Chapter 41 of the Election Code, as amended by Senate Bill 100, prescribes the following dates for elections:

(a) Except as otherwise provided by this subchapter, each general or special election in this state shall be held on one of the following dates:

(1) the second Saturday in May in an odd-numbered year;

(2) the second Saturday in May in an even-numbered year, for an election held by a political subdivision other than a county; or

(3) the first Tuesday after the first Monday in November.

TEX. ELEC. CODE ANN. § 41.001(a) (West Supp. 2011) (emphasis added). Subsection (b) describes seven situations to which subsection (a) does not apply. See id. § 41.001(b). None of these situations are applicable to an election in which voters determine whether to create an emergency services district.[2] Subsection (a)(1) of section 41.001 does not apply because calendar year 2012 is not an "odd-numbered year." Moreover, because an election to approve the creation of an emergency services district would be an election held by a county, subsection (a)(2) is also not applicable. See TEX. HEALTH & SAFETY CODE ANN. § 775.018(a)(1)-(2) (West Supp. 2011) ("On the granting of a petition, the commissioners court shall order an election to confirm the district's creation ...."). Consequently, the next available date for holding the election at issue here is "the first Tuesday after the first Monday in November" of 2012, i.e., November 6, 2012, provided, of course, that such date "allows sufficient time to comply with other requirements of law," as required by subsection 775.018(e) of the Health and Safety Code.[3] Id. § 775.018(e).

SUMMARY

The next available date for holding an election to create an emergency services district in Navarro County is November 6, 2012, provided that such date "allows sufficient time to comply with other requirements of law," as required by subsection 775.018(e) of the Health and Safety Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable R. Lowell Thompson, Navarro Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Oct. 25, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You appear to be most concerned about subsection (b)(6), which declares that subsection (a) is not applicable to "an election held under a statute that expressly provides that the requirement of Subsection (a) does not apply to the election." See TEX. ELEC. CODE ANN. § 41.001(b)(6) (West Supp. 2011). However, nothing in chapter 775 of the Health and Safety Code "expressly provides" that the requirement of subsection (a) of section 41.001 of the Election Code "does not apply to the election."

[3] Although section 41.0052 of the Election Code permits certain governmental bodies to change the date of a general election, that provision specifically does not apply to counties. See § 41.0052(a).