Can a Texas county pay or buy equipment for a volunteer fire department without a contract for fire services?

Texas AG Opinion JC-0082: A County Must Contract Before Funding a Volunteer Fire Department

Plain-English summary

For several years the Kleberg County Commissioners Court had been supplementing the budgets of the Ricardo and Riviera volunteer fire departments, budgeting $25,000 for one and $20,000 for the other. The departments submitted purchase orders up to those limits for the court's approval, the county paid out of its general fund, and the county auditor audited the departments' accounts each year. There was, however, no contract between the county and the volunteer fire departments requiring them to provide fire-protection services in exchange. The Kleberg County Attorney asked the Attorney General whether the county could keep doing this without a contract.

The opinion said no. Section 352.001 of the Local Government Code lays out the ways a county may provide fire protection to residents living outside a municipality: it can furnish the protection itself using its own equipment or equipment leased from a city (subsections (a), (b)(1), and (b)(3)), or it can contract with an incorporated volunteer fire department to provide the service (subsection (c)). Because subsection (c) spells out exactly how a county may interact with a volunteer fire department, the opinion read it to exclude every other method. A commissioners court has only the powers the constitution and statutes give it, and when a statute grants a power and prescribes how to exercise it, that prescribed method is the only one allowed. So a county could not buy equipment for, or pay, a volunteer fire department without a contract for fire-protection services.

The county attorney had pointed to two possible escapes. The first was Government Code section 418.109(d), the emergency-management "mutual aid" statute. The opinion explained that section 418.109 is about helping other political subdivisions cope with disasters under a mutual-aid arrangement; it does not authorize a county to make a gift to a volunteer fire department in ordinary, nonemergency circumstances without such an agreement. The second was article III, section 52(a) of the Texas Constitution, read together with a prior letter opinion suggesting public-purpose controls could substitute for a formal contract. The opinion distinguished that letter opinion (it involved an industrial-development nonprofit, not a volunteer fire department) and explained that the constitution sets only a floor; the legislature added a stricter requirement, a contract, for this particular relationship, and the county had to follow it.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Could the county just supplement a volunteer fire department's budget?
Not without a contract. The opinion concluded that section 352.001(c) of the Local Government Code permits a county to pay or buy equipment for a volunteer fire department only under a contract obligating the department to provide fire-protection services to county residents.

Why does the statute's list of methods matter so much?
The opinion applied a settled rule: a commissioners court has only the powers granted to it, and when a statute grants a power and prescribes the method of exercising it, the prescribed method excludes all others. Because subsection (c) prescribes the contract method, no alternative arrangement was allowed.

Did the emergency mutual-aid statute help?
No. The opinion read Government Code section 418.109(d) as authorizing mutual aid to cope with disasters under a mutual-aid arrangement. It did not authorize a county to make a gift to a volunteer fire department in nonemergency circumstances absent such an agreement.

Could constitutional public-purpose controls replace a contract?
No. Article III, section 52(a) of the Texas Constitution sets a minimum standard (a public purpose, a quid pro quo, and adequate controls). The opinion explained the legislature may add stricter requirements, and for county funding of a volunteer fire department it required a contract, so the county could not substitute informal controls.

What other conditions applied to a proper payment?
The opinion noted prior requirements the county attorney did not question: the payment (cash or in-kind) had to be reasonable, made in accordance with the county budgeting statutes (chapter 111 of the Local Government Code), and paid from the county's general fund.

Background and statutory framework

Section 352.001 of the Local Government Code authorizes a county commissioners court to provide fire protection to residents living outside a municipality. Under subsection (a) the county may furnish fire protection or fire-fighting equipment to those residents; under subsection (b)(1) it may purchase fire trucks or other fire-fighting equipment; under subsection (b)(3) it may contract with a municipality to use that municipality's equipment; and under subsection (c) it "may contract with an incorporated volunteer fire department that is located within the county to provide fire protection to an area of the county that is located outside the municipalities in the county," paying for that protection from the general fund.

The opinion reasoned that because subsection (c) explicitly sets out how a county may interact with a volunteer fire department, the statute excludes any other means. It relied on the principle that a commissioners court exercises only powers the constitution and statutes confer (Canales v. Laughlin, a Texas Supreme Court decision; Abbott v. Pollock), and on the rule that where a statutory power is granted and the method of exercise prescribed, the prescribed method excludes all others (Foster v. City of Waco, a Texas Supreme Court decision; Cole v. Texas Army Nat'l Guard; Opinions JC-0011 (1999) and DM-424 (1996)).

On the asserted alternatives, the opinion read Government Code section 418.109 as an emergency-management provision encouraging political subdivisions not in interjurisdictional emergency-management plans (section 418.106) to make suitable arrangements to aid each other in disasters (section 418.109(a)), citing the bill analyses tying the statute to Hurricane Andrew and the 1993-1994 fires. Section 418.109(d) did not authorize a nonemergency gift to a volunteer fire department absent a mutual-aid agreement. On the constitution, article III, section 52(a) bars gratuitous contributions and requires a public purpose, a quid pro quo, and sufficient controls (Letter Opinion 96-035), but it sets only a minimum to which the legislature may add; here the legislature required a contract. The opinion also noted the payment must be reasonable, made under the county budgeting statutes (chapter 111), and paid from the general fund (Opinions V-101 (1947), O-6160 (1944), O-4300 (1942)).

Citations

Statutory provisions:

• Tex. Local Gov't Code Ann. § 352.001; § 352.001(a), (b)(1), (b)(3), (c); ch. 111 (Vernon 1999)
• Tex. Gov't Code Ann. § 418.109(d); § 418.109(a); § 418.106 (Vernon 1999)
• Tex. Const. art. III, § 52(a)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.-Austin 1997, writ denied)
• Foster v. City of Waco, 255 S.W. 1104 (Tex. 1923)
• Cole v. Texas Army Nat'l Guard, 909 S.W.2d 535 (Tex. App.-Austin 1995, writ denied)

Attorney General opinions referenced: JC-0011 (1999); DM-424 (1996); LO-96-035; V-101 (1947); O-6160 (1944); O-4300 (1942).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0082
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0082.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

July 20, 1999

The Honorable Delma Rios
Kleberg County Attorney
P.O. Box 1411
Kingsville, Texas 78364

Opinion No. JC-0082

Re: Whether a commissioners court may purchase fire-fighting equipment for or pay a volunteer fire department without having contracted with the volunteer fire department to provide fire-protection services for county residents (RQ-1109)

Dear Ms. Rios:

You ask whether a county commissioners court may purchase fire-fighting equipment for or pay a volunteer fire department in the absence of a contract between the two entities under which the volunteer fire department provides fire-protection services for county residents as consideration for the equipment or payment. We conclude the county commissioners court may not.

You indicate that the Kleberg County Commissioners Court has, for several years, "supplemented [the] budget[s]" of the Ricardo and Riviera volunteer fire departments. Letter from Honorable Delma Rios, Kleberg County Attorney, to Honorable Dan Morales, Texas Attorney General (Apr. 6, 1998) (on file with Opinion Committee) [hereinafter "Request Letter"]. This year, you state that the commissioners court has budgeted $25,000 for the Ricardo organization and $20,000 for the Riviera organization. Id. As you describe the arrangement, the commissioners court does not simply hand the budgeted funds to the volunteer fire departments; rather, the volunteer fire departments submit purchase orders, up to the budgeted limits, to the commissioners court for its approval. Id. The county pays the expenditures out of its general fund, you continue, and the county auditor annually audits the volunteer fire departments' accounts. Id. We assume, although you do not inform us, that the county supports these volunteer fire departments because they provide fire-protection services to county residents living outside the municipal limits of Ricardo or Riviera.

Section 352.001 of the Local Government Code authorizes a county commissioners court to provide, either on its own or under a contract, fire protection to county residents who live outside a municipality (to whom we will refer simply as "county residents"):

(a) The commissioners court of a county may furnish fire protection or fire-fighting equipment to the residents of the county who live outside municipalities.

(b) The commissioners court may:

(1) purchase fire trucks or other fire-fighting equipment; and

(3) contract with the governing body of a municipality located within the county or within an adjoining county to use fire trucks or other fire-fighting equipment that belongs to the municipality.

(c) The commissioners court of a county may contract with an incorporated volunteer fire department that is located within the county to provide fire protection to an area of the county that is located outside the municipalities in the county. The court may pay for that protection from the general fund of the county.

TEX. LOCAL GOV'T CODE ANN. § 352.001 (Vernon 1999).

Accordingly, a county commissioners court may provide fire protection to county residents in one of two ways. See id. Under section 352.001(a), a county may furnish fire protection itself. See TEX. LOCAL GOV'T CODE ANN. § 352.001(a) (Vernon 1999). A county that furnishes fire-protection services itself may, under subsection (b)(1), do so using its own fire-fighting equipment or, under subsection (b)(3), fire-fighting equipment leased from a municipality. Alternatively, under subsection (c), a county commissioners court may furnish fire-protection services to county residents by contracting with an incorporated volunteer fire department to provide the services.

Because section 352.001(c) explicitly sets forth the means by which a county may interact with a volunteer fire department to provide fire protection to county residents, we believe the statute excludes any other means of interaction with a volunteer fire department. A county commissioners court may exercise only those powers that the state constitution and statutes confer upon it, either explicitly or implicitly. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied). Moreover, where, as here, a statutory power is granted and the method of its exercise is prescribed, the prescribed method excludes all others and must be followed. See Foster v. City of Waco, 255 S.W. 1104, 1105 (Tex. 1923); Cole v. Texas Army Nat'l Guard, 909 S.W.2d 535, 539 (Tex. App.-Austin 1995, writ denied); Tex. Att'y Gen. Op. Nos. JC-0011 (1999) at 3, DM-424 (1996) at 4. A county that desires to furnish fire-protection services to county residents by contracting with another entity must, consistently with subsection (c), do so under a contract with an incorporated volunteer fire department. Section 352.001 does not permit a county to purchase fire-fighting equipment for a volunteer fire department or to pay a volunteer fire department absent a contract.

You suggest that Government Code section 418.109(d), which was enacted in 1995, authorizes the practice at issue in this request. That subsection authorizes a county to provide "mutual aid assistance" to a fire protection agency or organized volunteer group upon request as part of a mutual-aid arrangement. TEX. GOV'T CODE ANN. § 418.109(d) (Vernon 1999). Section 418.109 is designed to encourage political subdivisions not participating in interjurisdictional emergency management plans, see id. § 418.106, to "make suitable arrangements" to aid each other "in coping with disasters." See id. § 418.109(a). Thus, section 418.109 as a whole tries to facilitate both disaster mitigation prior to a disaster and a political subdivision's response in the event that a particular disaster occurs, e.g., a tornado or uncontrollable wildfire:

The problems in Florida and Louisiana in coping with the aftermath of Hurricane Andrew and extensive fires in central and west United States during 1993 and 1994 brought into focus the need for a statewide mutual aid plan.

HOUSE COMM. ON PUBLIC SAFETY, BILL ANALYSIS, Tex. Comm. Substitute H.B. 2872, 74th Leg., R.S. (1995); see also HOUSE COMM. ON PUBLIC SAFETY, BILL ANALYSIS, Tex. S.B. 1695, 74th Leg., R.S. (1995). Section 418.109(d) encourages political subdivisions to enter into mutual-aid agreements prior to the occurrence of any disaster and thereby permits a political subdivision to assist another, catastrophe-stricken political subdivision in its response to the disaster. But the section does not authorize a county to make a gift to a volunteer fire department in nonemergency circumstances in the absence of a mutual-aid agreement.

Nor does article III, section 52(a) of the Texas Constitution authorize the county commissioners court to make the arrangements you describe without a contract, thereby avoiding the contract requirement of section 352.001(c) of the Local Government Code. The Texas Constitution prohibits a county from making a gratuitous contribution; any payment (monetary or in-kind) must serve a public purpose, must be in exchange for a quid pro quo, and must be accompanied by controls sufficient to ensure that the public purpose is accomplished. See TEX. CONST. art. III, § 52(a); see also Tex. Att'y Gen. LO-96-035, at 3 n.3. You suggest that, under Letter Opinion 96-035, "it might be possible [under article III, section 52(a) generally] to insure sufficient controls without a formal contract." See Request Letter, supra, at 3. But Letter Opinion 96-035 concerned a county's contribution to a nonprofit organization whose purpose was to assist industrial development; it did not involve a contribution to a volunteer fire department governed by section 352.001(c). Moreover, article III, section 52(a) establishes a minimum standard to which the legislature may, by statute, add levels of security. With respect to a county's relationship with a volunteer fire department that provides fire-protection services for county residents, the legislature has required a contract, and a county must adhere to that statutory requirement.

In sum, a county commissioners court may purchase fire-fighting equipment for or pay money to a volunteer fire department only if the volunteer fire department has contracted with the county to provide fire-protection services for county residents. This office previously has articulated other requirements, which you do not question: the payment (whether in-kind or in cash) must be reasonable; and the payment must be made in accordance with the county budgeting statutes, see TEX. LOCAL GOV'T CODE ANN. ch. 111 (Vernon 1999) and other applicable statutes. See Tex. Att'y Gen. Op. No. V-101 (1947) at 5; see also Tex. Att'y Gen. Op. Nos. O-6160 (1944) at 3, O-4300 (1942) at 3. In addition, the county must make the payment from the county's general fund. See TEX. LOCAL GOV'T CODE ANN. § 352.001(c) (Vernon 1999); see also Tex. Att'y Gen. Op. Nos. O-6160 (1944) at 3, O-4300 (1942) at 3.

SUMMARY

A county commissioners court may purchase fire-fighting equipment for or pay a volunteer fire department only if the volunteer fire department has contracted with the county to provide fire-fighting services to county residents living outside the boundaries of a municipality.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General