Can a Texas commissioners court put a lower tax cap than the state maximum on the ballot for an emergency services district?

Texas AG Opinion JM-1010: Can a County Set a Lower Tax Cap for an Emergency Services District?

Plain-English summary

Emergency services districts are the local taxing units that pay for things like rural fire protection and ambulance service. The Texas Constitution lets counties create them and levy a property tax to support them, but it puts a ceiling on that tax: no more than 10 cents per $100 of valuation. The Harris County Attorney asked the Attorney General a practical question about that ceiling. When the county puts the creation of a district to a vote, can the commissioners court offer the voters a lower cap, say 6 cents instead of 10, right there in the ballot proposition?

The Attorney General said no. The constitutional and statutory text is admittedly ambiguous; you could read it either as fixing a single 10-cent question for the voters, or as merely setting a ceiling that the county could dip below. But several details of the implementing statute pushed the Attorney General toward the first reading. The statute gives a sample form for the order the commissioners court enters after a successful election, and that form says nothing about any maximum tax rate, which suggests the Legislature did not expect the maximum to vary from district to district. Neither the petition to create a district nor the required notice of the hearing has to state a proposed maximum rate either. And there is a common-sense reason: districts can span multiple counties, and it would get messy fast if each participating county's commissioners court could propose a different cap for its slice of the same district. So the ballot has to ask voters to approve the full 10-cent maximum.

That does not mean a district always taxes at 10 cents. The opinion was careful to note that nothing requires the maximum to actually be levied in any given year. A commissioners court that wants a lighter tax can simply levy 6 cents; it just cannot bake a lower ceiling into the voter-approved authority.

The Attorney General also answered three related points. He addressed whether the district's own board could be given power to levy taxes, and concluded that because the Constitution gives the taxing power to the commissioners court, any statutory language that looks like it hands taxing authority to a district board has to be read as allowing it only with the approval of the commissioners courts of all participating counties, since a statute should be construed to stay constitutional. He confirmed that a rural fire prevention district that converts into an emergency services district may tax up to 10 cents like any other. And where an emergency services district overlaps or shares boundaries with a rural fire prevention district, the cap in that overlapping area is 2 cents per $100.

Currency note

This opinion was issued in 1989. 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.

Emergency services districts have changed a great deal since 1989. The old article 2351a-8, V.T.C.S., framework was recodified into the Health and Safety Code (emergency services districts are now governed by chapter 775), and the constitutional tax ceiling was later raised (a voter-approved amendment allows a higher maximum rate than the 10 cents that applied here). The rules on ballot propositions, board powers, conversions from rural fire prevention districts, and overlapping districts have all been amended. Anyone dealing with an emergency services district tax question today should read the current Health and Safety Code chapter 775 and the current constitutional provision rather than rely on the 10-cent figure and the article numbers here.

Who this opinion affected (as of 1989)

Commissioners courts: The opinion told them the ballot to create an emergency services district had to offer the full 10-cent maximum, not a lower self-imposed cap, though they remained free to levy less than the maximum in any year.

Emergency services district boards: The opinion clarified that any board taxing authority existed only with the approval of the commissioners courts of all participating counties.

Voters and residents of proposed districts: The opinion clarified what they were actually voting on: creation of a district with a 10-cent maximum taxing authority.

Rural fire prevention districts: The opinion set out their tax ceilings on conversion (10 cents) and on overlap with an emergency services district (2 cents).

Common questions

Can a commissioners court put a tax cap lower than 10 cents on the ballot for an emergency services district?
No. In this opinion the Attorney General concluded the ballot must ask voters to approve the 10-cent-per-$100 maximum; the court cannot offer a lower maximum taxing authority.

Does that mean the district always taxes at 10 cents?
No. Nothing requires the maximum to be levied in any year. A commissioners court could levy 6 cents per $100 if it chose; the 10 cents is a ceiling on authority, not a required rate.

Can the district's own board levy the tax?
Only with strings attached. Because the Constitution gives the taxing power to the commissioners court, statutory language appearing to give a board taxing authority is read to allow it only with the approval of the commissioners courts of all participating counties.

What is the tax cap if a rural fire prevention district converts to, or overlaps with, an emergency services district?
On conversion, the district may tax up to 10 cents per $100. Where an emergency services district overlaps or is coterminous with a rural fire prevention district, the cap in that area is 2 cents per $100.

Background and statutory framework

Article III, section 48-e of the Texas Constitution permits laws creating special districts to provide emergency services and authorizing the commissioners court of participating counties to levy an ad valorem tax not to exceed 10 cents per $100 valuation, provided no tax is levied until approved by the qualified electors residing in the district. The implementing statute is article 2351a-8, V.T.C.S. (article 2351a-9 also implements section 48-e for counties with a population of 125,000 or less). Under article 2351a-8, sections 2 through 6 cover petitions, filing, notice, and hearings; section 7 directs the commissioners court to grant or deny the petition based on feasibility and public-safety findings; and section 8 directs the court, on granting the petition, to call an election to confirm the organization and authorize an ad valorem tax not to exceed 10 cents on the $100 valuation.

On the first question, the Attorney General found both the constitutional and statutory provisions ambiguous about whether the ballot must present the 10-cent maximum or whether the court could offer a lower maximum. He concluded the Legislature did not intend to allow a maximum other than 10 cents. Section 11's sample confirmation order, which the commissioners court enters in its minutes, contains no statement about the maximum tax, indicating the Legislature did not intend a court to ask voters to approve a lower maximum. The absence of any requirement that the petition or the hearing notice specify a maximum rate points the same way (article 2351a-8, sections 2, 3, and 5), and a policy reason reinforces it: because districts may be multi-county, the Legislature would have intended a uniform maximum, and multi-county districts would be considerably complicated if each participating county could propose a different maximum rate (Attorney General Opinion JM-681 (1987)). Nothing, however, requires the maximum to be levied in a particular year; a commissioners court could levy 6 cents on the $100 valuation if it chose.

On the board-taxing question (raised in the county's brief), article III, section 48-e authorizes the commissioners court of participating counties to levy the tax (compare Tex. Const. art. III, section 48-d, on rural fire prevention districts). Several sections of article 2351a-8 appear to authorize a district board to levy taxes, but section 20 provides a district may issue bonds only with the approval of the commissioners courts of all participating counties. Because a statute must be construed to be constitutional if possible (Key Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 849 (Tex. 1961)), the Attorney General concluded any provision appearing to give a district board authority to levy taxes must be read to give that authority only with the approval of the commissioners courts of all participating counties.

On conversion, section 33 lets qualified voters owning taxable real property in a rural fire prevention district petition to convert it into an emergency services district, and provides the emergency services district assumes the converted district's obligations and indebtedness. Once converted, it is governed by emergency-services-district law and may levy an ad valorem tax not to exceed 10 cents on the $100 valuation. Finally, section 8 provides that where any area within a rural fire prevention district is included within an emergency services district, the commissioners court calls an election to confirm the organization and authorize a tax not to exceed 2 cents on the $100 valuation.

Citations

Constitutional and statutory authority:

• Tex. Const. art. III, § 48-e (emergency services districts; commissioners court tax up to 10 cents per $100); art. III, § 48-d (rural fire prevention districts)
• Tex. Rev. Civ. Stat. art. 2351a-8, § 7 (feasibility findings); § 8 (confirmation election and 10-cent / 2-cent overlap rates); § 11 (sample confirmation order); § 20 (bonds only with all participating counties' approval); § 33 (conversion of a rural fire prevention district); art. 2351a-9 (implementation for smaller counties)

Cases:

• Key Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 849 (Tex. 1961) (a statute must be construed to avoid repugnancy to the constitution if possible)

Related opinions:

• Attorney General Opinion JM-681 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1010
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1010.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Garbled case names and constitutional cites have been restored to their verified forms.

January 24, 1989

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-1010

Re: Authority of a commissioners court to impose limitations on an emergency services district, and related questions (RQ-1567)

Dear Mr. Driscoll:

You ask several questions about article III, section 48-e, of the Texas Constitution, which permits the creation of emergency services districts, and about article 2351a-8, which implements article III, section 48-e.

You first ask:

May the Commissioners Court limit the amount of the tax which may be levied in support of an emergency services district in the order calling the election and in the ballot proposition to be submitted to the voters to confirm the organization of said district? For example, may the Commissioners Court set a maximum rate of six cents per $100 valuation?

Article III, section 48-e, provides:

Laws may be enacted 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 (10c) on the One Hundred Dollars ($100.00) valuation for the support thereof; provided that no tax shall be levied in support of said districts until approved by a vote of the qualified electors residing therein. Such a district may provide emergency medical services, emergency ambulance services, rural fire prevention and control services, or other emergency services authorized by the Legislature.

The statute implementing article III, section 48-e, is article 2351a-8, V.T.C.S. Section 1 of article 2351a-8 provides:

Emergency services districts may be organized in this state under Article III, Section 48-e, of the Texas Constitution for the protection of human life and health as provided by this Act.

Section 2 of article 2351a-8 provides for petitions for emergency services districts in one-county districts, and section 3 provides for petitions for multi-county districts. Section 4 provides for filing of petitions. Sections 5 and 6 provide for notice of and hearings on proposed districts. Section 7 provides:

If at the hearing it appears to the commissioners court that the organization of a district as petitioned for is feasible and practicable, and will be conducive to the public safety, welfare, health, and convenience of persons residing in the district, the court shall make those findings and grant the petition and fix the boundaries of the district. If the court does not make those findings, it shall deny the petition.

Section 8 provides in part:

When the petition is granted, the commissioners court shall call an election to confirm the organization and authorize the levy of an ad valorem tax in an amount not to exceed 10 cents on the $100 valuation . . . .

Your question is whether the ballot proposition must ask the voters to grant the commissioners court authority to levy a tax of up to ten cents on the $100 valuation or whether a commissioners court has the option of asking the voters to give the commissioners court authority to levy a maximum tax for the support of the district of less than ten cents on the $100 valuation. Both the constitutional and statutory provisions are ambiguous on this point. It is possible to read both provisions as allowing only one issue to be presented to the voters: whether a district shall be created with the authority to levy a tax not to exceed ten cents on the $100 valuation. It is also possible to read those provisions as simply setting the maximum tax that the voters may authorize and allowing the voters to authorize a lower maximum tax.

Although the statute is ambiguous, several provisions of article 2351a-8 lead us to the conclusion that the legislature did not intend to allow the commissioners court to propose or the voters to authorize a maximum tax rate other than ten cents on the $100 valuation.[2] For example, section 11 provides:

If a majority of those voting at an election to create an emergency services district votes in favor of the formation of the district, the district shall be considered an organized emergency services district under this Act. The commissioners courts of the counties in which the district is located shall enter orders accordingly in their minutes substantially in the following form:

Whereas, at an election duly and regularly held on the ___ date of ___ A.D. 19__, within that portion of ___ County, State of Texas, described as: (insert description unless the district is countywide) there was submitted to the legal voters thereof the question whether the above described territory shall be formed into an emergency services district under the provisions of the laws of this state; and

Whereas, at such election ___ votes were cast in favor of formation of said district and ___ votes were cast against such formation; and

Whereas, the formation of such emergency services district received the affirmative vote of the majority of the votes cast at such election as provided by law;

Now, therefore, the County Commissioners Court of ___ County, State of Texas, does hereby find, declare and order that the tract hereinbefore described has been duly and legally formed into an emergency services district (or a portion thereof) under the name of ___ under and pursuant to Article III, Section 48-e, of the Texas Constitution, and with the powers vested in such district conferred by law.

That sample form for the order to be entered in the minutes of the commissioners court does not contain any statement about the maximum tax that may be levied for the support of the district. That indicates that the legislature did not intend for a commissioners court to be able to ask the voters to approve a maximum taxing authority of less than ten cents on the $100 valuation. Therefore we think the commissioners court must ask the voters to approve a district with a maximum taxing authority of ten cents on the $100 valuation.

Also, the fact that there is no requirement that the petition for an emergency services district specify a maximum tax rate and the fact that the notice of the hearing on the petition is not required to contain the proposed maximum tax rate both indicate that the legislature did not intend for the maximum tax rate to be negotiable. V.T.C.S. art. 2351a-8, §§ 2, 3, and 5. A policy reason supports that interpretation: Both the constitution and the statute contemplate multi-county emergency services districts. Certainly, the legislature would have intended for all areas within the district to be subject to the same maximum tax. The creation of multi-county districts would be considerably complicated if the commissioners court of every participating county could propose a different maximum tax rate. See Attorney General Opinion JM-681 (1987). See generally V.T.C.S. art. 2351a-8, § 8.

Of course, nothing in the constitution or statutes would require that the maximum tax authorized be levied in any particular year. The commissioners court would have authority to levy a tax of six cents on the $100 valuation if it chose to do so.

The second question we will discuss is one you raise in your brief but do not include in your list of questions. That question is whether the legislature may grant the board of an emergency services district the authority to levy taxes. Article III, section 48-e provides that laws may be enacted to authorize the commissioners court of participating counties to levy a property tax. See Tex. Const. art. III, § 48-d (authorizing the creation of rural fire prevention districts and authorizing an ad valorem tax "in said districts"). You point out, however, that several sections of article 2351a-8 appear to authorize the board of an emergency services district to levy taxes. See, e.g., V.T.C.S. art. 2351a-8, §§ 14(5), 19. Cf. V.T.C.S. art. 2351a-8, § 20 (providing that district may issue bonds only with approval of commissioners courts of all participating counties). Because we must construe a statute to be constitutional if possible, we conclude that any provision that appears to give the board of an emergency services district authority to levy taxes must be read to give a board such authority only with the approval of the commissioners courts of all participating counties. See Key Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 849 (Tex. 1961) (stating that, if possible, court must construe statute to avoid repugnancy to constitution).

You next ask:

In the event that a rural fire prevention district petitions for the conversion of said district into an emergency services district, what is the maximum ad valorem tax rate which may [be] levied annually?

Section 33 of article 2351a-8 provides:

(a) Qualified voters who own taxable real property in a rural fire prevention district may present a petition to convert the rural fire prevention district into an emergency services district in the manner provided by this Act for the creation of an emergency services district.

(b) If a rural fire prevention district is converted into an emergency services district, the emergency services district assumes all obligations and outstanding indebtedness of the rural fire prevention district that it succeeds.

Once a rural fire prevention district became an emergency services district, it would be governed by the laws applicable to emergency services districts. Consequently, it would be authorized to levy an ad valorem tax not to exceed ten cents on the $100 valuation.

Your final question is:

What is the maximum ad valorem tax rate which may be levied in support of an emergency services district whose boundaries overlap or are coterminous with a rural fire prevention district?

Section 8 of article 2351a-8 states that if any area included within the boundaries of a rural fire prevention district is included within the boundaries of an emergency services district, the commissioners court shall call an election to confirm the organization and authorize the levy of an ad valorem tax in an amount not to exceed two cents on the $100 valuation.

SUMMARY

Article 2351a-8, V.T.C.S., requires that voters determine whether an emergency services district be created with authority to levy a tax not to exceed ten cents on the $100 valuation. It does not permit voters to consider whether an emergency services district shall be created with a maximum taxing authority of less than ten cents on the $100 valuation.

Article 2351a-8 must be construed as allowing an emergency services district to levy taxes with the approval of the commissioners courts of all participating counties.

If a rural fire prevention district becomes an emergency services district, the maximum taxing authority for the district would be ten cents on the $100 valuation.

If a rural fire prevention district lies wholly or partially within the boundaries of an emergency services district, the maximum taxing authority for the district would be two cents on the $100 valuation.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

Footnotes

[1] Article 2351a-9 also implements article III, section 48-e, for counties with a population of 125,000 or less.

[2] Even if the constitutional provision permits the legislature to allow a county or counties to set any maximum tax rate up to ten cents on the $100 valuation, it clearly does not require the legislature to permit such variation. Therefore, for purposes of this opinion, we will only attempt to determine the legislative intent in enacting article 2351a-8.