Can Texas create a second emergency services district over the same area to raise more property tax?

Plain-English summary

Representative Patricia Harless, chair of the House Committee on Environmental Regulation, asked the Attorney General about a plan to stack two emergency services districts on top of each other. Travis County ESD 2, also known as the Pflugerville Fire Department, levied the maximum ad valorem property tax the Texas Constitution allows for such a district, ten cents per $100 of valuation, but wanted more money. The proposal was to create a new district, ESD 2A, sharing the same boundaries and offering the same services as ESD 2, for the sole purpose of adding more property-tax revenue. The representative asked four questions about whether that was legal.

On the first question, the Attorney General concluded that Article III, section 48-e of the Texas Constitution neither permits nor prohibits overlapping emergency services districts; it authorizes the Legislature to create such districts, and the Legislature, in Health and Safety Code chapter 775, expressly allowed districts to overlap in territory. On the second and third questions, the AG concluded that chapter 775 does not allow overlapping districts to provide the same emergency services in the overlapping territory, and an existing district likewise may not amend its services to duplicate those of an overlapping district.

On the fourth question, about the specific ESD 2A proposal, the Attorney General declined to rule. Briefing and news reports indicated that the proposal lacked the consent required from the Pflugerville City Council and the Travis County Commissioners Court, which meant no election on the petition could go forward, so the AG treated the question as effectively moot.

Currency note

This opinion was issued in 2013. 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

The House Committee on Environmental Regulation (as the opinion described it): The opinion answered three of the four questions on the law and declined the fourth as moot. It told the committee that the Constitution is silent on overlapping ESDs but the Legislature permitted territorial overlap, while chapter 775 bars overlapping districts from providing duplicative services in the shared territory and bars an existing district from amending its services to duplicate an overlapping district's. On the specific Pflugerville-area proposal, the opinion explained that the missing consents from the city council and county commissioners court blocked any immediate election, so it did not decide that question.

Emergency services districts and the communities they serve (as the opinion described it): The opinion described chapter 775 as letting two ESDs share territory while requiring that their services in the overlapping area be non-duplicative, which the Legislature found complementary rather than conflicting.

Common questions

Does the Texas Constitution allow two emergency services districts to cover the same area?
According to the opinion, the Constitution neither permits nor prohibits overlapping ESDs. Article III, section 48-e authorizes the Legislature to create the districts, and the Legislature allowed territorial overlap in Health and Safety Code chapter 775.

Can a new ESD provide the same services as an existing one in the same area?
No. The opinion concluded that chapter 775 prohibits overlapping districts from providing duplicative services in the overlapping territory.

Can an existing ESD change its services to duplicate an overlapping district's services?
The opinion said no; the same conclusion that bars duplicative services also prevents a district from amending its services to provide duplicative services in the shared territory.

Did the AG decide whether the proposed Pflugerville ESD 2A was legal?
No. The opinion treated that question as effectively moot because, based on the briefing and news reports, the proposal lacked the consent required from the Pflugerville City Council and the Travis County Commissioners Court, so no election could proceed.

Background and statutory framework

The opinion read Article III, section 48-e of the Texas Constitution by its plain text, citing Doody v. Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex. 2001), and found that the provision neither authorizes nor forbids overlap but empowers the Legislature to create emergency services districts. Treating the Legislature's enactments as a guide to the constitutional grant, it cited Jones v. Williams, 45 S.W.2d 130, 133 (Tex. 1931), on contemporaneous legislative construction.

The controlling statutes were in Health and Safety Code chapter 775. Section 775.0205(a) bars the most recently created district from providing services in overlapping territory that duplicate the services an existing district has specified under section 775.018(g); sections 775.018(f) and 775.0205(d) acknowledge overlapping districts and provide that overlap does not affect either district's validity; and section 775.0205(d-1) records the Legislature's finding that non-duplicative emergency services in overlapping territory are complementary. For the consent and election requirements that made the fourth question moot, the opinion cited sections 775.014(a), 775.015, and 775.018, and it declined the moot question under Tex. Att'y Gen. Op. No. GA-0334 (2005).

Citations

Cases:

• Doody v. Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex. 2001)
• Jones v. Williams, 45 S.W.2d 130, 133 (Tex. 1931)

Statutes:

• Tex. Const. art. III, § 48-e
• Tex. Health & Safety Code Ann. § 775.0205(a), (d), (d-1) (West Supp. 2012)
• Tex. Health & Safety Code Ann. § 775.018(f), (g)
• Tex. Health & Safety Code Ann. § 775.014(a) (West Supp. 2012)
• Tex. Health & Safety Code Ann. § 775.015 (West 2010)
• Tex. Health & Safety Code Ann. § 775.018 (West Supp. 2012)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0334 (2005) at 11

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1022
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1022.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

August 26, 2013

The Honorable Patricia Harless Opinion No. GA-1022
Chair, Committee on Environmental
Regulation Re: Authority to create overlapping
Texas House of Representatives emergency services districts that provide
Post Office Box 2910 duplicative services and levy additional ad
Austin, Texas 78768-2910 valorem taxes (RQ-1122-GA)

Dear Representative Harless:

You seek an opinion regarding authority to create an emergency services district in certain circumstances.[1] You tell us that an existing emergency services district-Travis County ESD 2 ("ESD 2"), also known as the Pflugerville Fire Department-currently levies a 0.1% ad valorem property tax but seeks additional revenue. See Request Letter at 1. You explain that because the ad valorem tax is at the maximum amount permitted under the Constitution, "a proposal ha[s] been put forward to create a new [emergency services] district (ESD 2A) that would be exactly co[n]terminous with ESD 2 and provide the same services already offered by that district, for the sole purpose of increasing the ad valorem tax revenue available." Id. You ask four questions about the proposed creation of the overlapping emergency services district:

1. Does the Texas Constitution permit overlapping ESDs?
2. Can an ESD be created that overlaps and provides duplicative services with another ESD?
3. Where two overlapping ESDs already exist, can one be amended to provide duplicative services?
4. As above or otherwise, is the Pflugerville-area Travis County ESD 2A, as currently proposed, permissible under existing Texas law?

Id. at 1-2.

Texas Constitution, article III, section 48-e authorizes the Legislature to "provide for the establishment and creation of special districts to provide emergency services and to authorize the commissioners court of participating counties to levy a tax on the ad valorem property situated in said districts not to exceed Ten Cents (10¢) on the One Hundred Dollars ($100) valuation for the support thereof ...." TEX. CONST. art. III, § 48-e. When interpreting the Texas Constitution, we, like a court, rely "heavily on its literal text and must give effect to its plain language." Doody v. Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex. 2001). By its express terms, article III, section 48-e neither permits nor prohibits overlapping emergency services districts. Thus, in answer to your first question, the Texas Constitution neither permits nor prohibits overlapping emergency services districts. It does authorize the Legislature to "provide for the establishment and creation" of such districts. TEX. CONST. art. III, § 48-e. In exercising that authority, the Legislature expressly permitted overlapping emergency services districts. See Jones v. Williams, 45 S.W.2d 130, 133 (Tex. 1931) (stating that "contemporaneous construction of a constitutional provision by the Legislature, continued and followed, is a safe guide as to its proper interpretation"). Texas Health and Safety Code section 775.0205(a), for example, provides that "[i]f the territory in a district created under this chapter overlaps with the boundaries of another district created under this chapter, the most recently created district may not provide services in the overlapping territory that duplicate the services described in the statement required by Section 775.018(g)." TEX. HEALTH & SAFETY CODE ANN. § 775.0205(a) (West Supp. 2012); see id. § 775.018(g) (requiring an existing district to specify the types of emergency services it will provide in any overlapping territory of proposed district). Further, other provisions in chapter 775 expressly acknowledge the creation of districts with overlapping territory. See id. §§ 775.018(f) ("If the territory of a district proposed under this chapter overlaps with the boundaries of another district created under this chapter ...."); 775.0205(d) ("The creation of a district with boundaries that overlap the boundaries of another district does not affect the validity of either district.").

In answer to your second question, chapter 775 expressly prohibits emergency services districts in overlapping territory from offering the same emergency services. Section 775.0205(d-1) states that "[t]he legislature finds that the performance of non-duplicative emergency services in the overlapping territory of emergency services districts is complementary to and not in conflict with the powers and duties of the respective districts." Id. § 775.0205(d-1) (emphasis added). In addition, section 775.0205(a) expressly limits a newly created district with territory overlapping an existing district from providing services that duplicate the services provided by an existing district. Id. § 775.0205(a). These provisions indicate a legislative intent to prohibit overlapping emergency services districts from providing duplicative services in the same territory. Accordingly, overlapping emergency services districts may not provide duplicative services in the overlapping territory. In answer to your third question, the above conclusion also precludes an emergency services district from amending its provision of services to provide duplicative services in the same territory.

In response to your last question, briefing submitted to this office and news reports indicate that the proposed ESD 2A does not have the requisite consent from either the Pflugerville City Council or the Travis County Commissioners Court. See Brief from John J. Carlton and Kelli Carlton, for the ESD No. 2 and the Texas State Ass'n of Fire & Emergency Servs. Dists., at 7 (May 24, 2013) (on file with the Op. Comm.) (disputing facts asserted in Request Letter and stating that "[t]here is no currently proposed" ESD 2A); see also J.P. Eichmiller, Travis County Commissioners Court Rejects Petition to Create New EMS Taxing District, IMPACTNEWS, March 4, 2013; Wendy Cawthon, City Rejects ESD Plan, Citing Tax Increase, PFLUGERVILLE PFLAG, Feb. 15, 2013.[2] This lack of consent precludes any immediate election regarding the petition to create ESD 2A. See TEX. HEALTH & SAFETY CODE ANN. §§ 775.014(a) (West Supp. 2012) (providing that municipal "territory may not be included in the district unless the municipality's governing body gives its written consent"); 775.015 (West 2010); 775.018 (West Supp. 2012) (providing that a county commissioners court may grant the petition and call an election only upon certain findings after a hearing). Thus, your last question appears to be effectively moot, and we do not address it. See Tex. Att'y Gen. Op. No. GA-0334 (2005) at 11 (declining to address moot questions).

SUMMARY

Pursuant to chapter 775 of the Health and Safety Code, two emergency services districts may overlap in territory but may not provide duplicative services in any territory where they overlap. Further, an emergency services district may not amend its provision of services in order to provide services duplicative of another overlapping emergency services district.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Patricia Harless, Chair, Comm. on Envtl. Regulation, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Apr. 12, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Available at http://impactnews.com and http://archive.pflugervillepflag.com, respectively.