Can a Texas county pay a rural fire prevention district or a volunteer fire department to provide fire protection, and does creating a fire district take away the county's own fire protection power?

Texas AG Opinion JM-1209: Can a Texas County Pay a Rural Fire District or Volunteer Fire Department?

Plain-English summary

The Kerr County Attorney asked whether Kerr County could "directly fund" a rural fire prevention district being contemplated for part of the county, and related questions about whether the county retained its own fire protection authority once such a district existed, and whether the county could also fund a volunteer fire department that had separately contracted with the district.

The Attorney General concluded a county could pay a rural fire prevention district for fire protection services, but only as consideration for services that furthered a legitimate county purpose, with adequate controls ensuring county residents received real benefits (a constitutional requirement, since counties cannot simply donate money to other entities, including political subdivisions like fire districts). The opinion also concluded that creating a rural fire prevention district does not strip the county of its own separate statutory authority to provide fire protection in the district's territory, reaffirming an earlier 1974 AG opinion reaching the same conclusion. Because the county retains that authority, the opinion found it could contract with and pay either the fire district itself or an incorporated volunteer fire department for fire protection services in non-incorporated areas, even areas already covered by the district, again subject to the public-purpose and adequate-benefit requirements.

Currency note

This opinion was issued in 1990. 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.

Who this opinion affected (as of 1990)

County commissioners courts: The opinion concluded a county retains its own authority under Local Government Code chapter 352 to provide fire protection to non-incorporated residents even after a rural fire prevention district is created covering the same territory, and may contract with and fund either the district or an incorporated volunteer fire department for that purpose, subject to constitutional public-purpose and anti-donation limits.

Rural fire prevention districts: The opinion confirmed a county could lawfully pay a district for fire protection services under a contractual arrangement, as long as the payment secured genuine additional public benefit for county residents rather than functioning as an unearned donation.

Incorporated volunteer fire departments: The opinion concluded a county could contract with and fund an incorporated volunteer fire department for fire protection in non-incorporated areas under Local Government Code section 352.001, even where the department had also separately contracted with a rural fire prevention district covering the same area, so long as the county funding produced a real additional benefit rather than simply paying twice for the same already-covered service.

Common questions

Does creating a rural fire prevention district take away a Texas county's own power to provide fire protection in that area?
No, according to the opinion. The Attorney General reaffirmed a 1974 AG opinion (H-279) concluding that a county is not precluded from providing fire protection under Local Government Code chapter 352 even in areas covered by a rural fire prevention district, even though it might be impractical or inefficient for both to do the same job.

Can a county pay a rural fire prevention district directly for fire protection services?
Yes, but only as payment for services that further a legitimate county purpose, with controls in place to ensure county residents actually receive additional public benefits. The Texas Constitution's article III, section 52 bars counties from making donations to corporations, including political subdivisions like fire districts, so any payment has to be a genuine exchange for services, not a gift.

Can a county fund a volunteer fire department that already has a contract with the rural fire district covering the same area?
Yes, according to the opinion, but the county funding still has to secure some additional public benefit. If the volunteer department was already providing the same services under its existing contract with the district, and county funding added nothing new, the arrangement would violate the constitutional bar on donations and the requirement that public expenditures serve a public purpose.

Is it unfair for a county to spend taxpayer money on fire protection in only part of the county?
The opinion did not find this unfair as a matter of law. It noted it is inevitable that tax money raised from all of a governmental unit's taxpayers is sometimes applied to projects that do not equally benefit every resident, and that decisions about how to allocate fire protection spending across different parts of a county are within the commissioners court's reasonable discretion.

Background and statutory framework

Local Government Code section 352.001 authorizes a county commissioners court to furnish fire protection to residents living outside municipalities, a power tracing back to 1941 legislation and continued without substantive change through recodification. Separately, article III, section 48-d of the Texas Constitution, added in 1949, empowers the legislature to authorize creation of rural fire prevention districts funded by a voter-approved ad valorem tax; the legislature did so in 1957 (later recodified as Health and Safety Code chapter 794), letting a commissioners court call an election to create such a district upon a voter petition and feasibility findings, with a five-member board of "fire commissioners" appointed by the commissioners court.

The opinion relied on Attorney General Opinion H-279 (1974), which had addressed whether a county entirely covered by a rural fire prevention district could still contract with a city for fire protection outside the city, and concluded the district's authority, while broad, was not exclusive; the county remained free to provide fire protection through other means. The opinion contrasted this with hospital districts, where the Texas Constitution expressly bars a county from separately providing medical services once a hospital district is created, noting the absence of similar express language for fire districts as support for reading county fire authority as surviving. On the constitutional funding limits, the opinion applied article III, section 52's bar on donations to corporations (citing Bexar County v. Linden) and article VIII, section 3's requirement that taxation serve public purposes only, concluding county payments to a district or volunteer department must be genuine consideration for services that further a county purpose, with adequate controls, rather than a gift. The opinion noted decisions about allocating fire protection resources across a county's different areas are, in the first instance, within the commissioners court's reasonable discretion, citing Snellen v. Brazoria County.

Citations

Statutes:

• Tex. Const. art. III, § 52 (bar on county donations to corporations, including political subdivisions)
• Tex. Const. art. VIII, § 3 (taxation for public purposes only)
• Tex. Const. art. III, § 48-d (authority to create rural fire prevention districts)
• Tex. Local Gov't Code § 352.001 (county authority to furnish fire protection outside municipalities)
• Tex. Health & Safety Code § 794.011 (rural fire prevention district creation procedure)
• Tex. Health & Safety Code § 794.019 (district created as political subdivision upon voter approval)
• Tex. Health & Safety Code § 794.031(7) (district authority to provide fire protection facilities)
• Tex. Health & Safety Code § 794.033 (governing board of fire commissioners)
• Tex. Health & Safety Code § 794.035 (powers of the board of fire commissioners)
• V.T.C.S. art. 2351a-1 (predecessor to Local Gov't Code § 352.001, adopted 1941)
• V.T.C.S. art. 2351a-6 (predecessor to Health & Safety Code chapter 794, enacted 1957)
• V.T.C.S. art. 4413(32c) (Interlocal Cooperation Act)

Cases:

• Bexar County v. Linden, 220 S.W. 761 (Tex. 1920)
• Snellen v. Brazoria County, 224 S.W.2d 305 (Tex. Civ. App. - Galveston 1949, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1209
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1209.pdf

Original opinion text

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

THE ATTORNEY GENERAL OF TEXAS

August 17, 1990

Honorable David M. Motley
Kerr County Attorney
323 Earl Garrett
Kerrville, Texas 78028

Opinion No. JM-1209

Re: Authority of a county to directly fund a rural fire prevention district and related questions (RQ-1992)

Dear Mr. Motley:

You advise that the creation of a rural fire prevention district in part of Kerr County is contemplated. You ask first whether Kerr County may "directly fund" the district if it is created.

We note at the outset that you have not elaborated in your request on the nature of the proposed "direct funding" of the rural fire prevention district. In the absence of greater specificity in your request, we will assume in the following discussion that the funding of the district would be in the nature of contractual payments by the county for provision of fire protection services, by or through the district, to non-incorporated portions of the county within district territory. Article III, section 52, of the constitution prohibits donations by counties to "corporations," including political entities. Bexar County v. Linden, 220 S.W. 761 (Tex. 1920); see also Tex. Const. art. VIII, § 3 (taxation for public purposes only). Any funding of a rural fire prevention district by the county would have to be in furtherance of legitimate public purposes of the county, with adequate controls to insure that benefits to county residents are realized. See, e.g., KV Commissioners Court of Marion County, 727 S.W.2d 66 (Tex. App. - Texarkana 1987, no writ).

Inherent in your question, then, is the question whether payments by a county to a rural fire prevention district for provision of fire protection services further an authorized county purpose. Local Government Code section 352.001 provides that a county commissioners court "may furnish fire protection . . . to the residents of the county . . . who live outside municipalities." Section 352.001 codifies, without substantive change, similar language previously appearing in article 2351a-1, V.T.C.S. Acts 1987, 70th Leg., ch. 149, at 707; see also Local Gov't Code § 1.001 (no substantive change intended). The provisions of article 2351a-1 were first adopted in 1941. Acts 1941, 47th Leg., ch. 360, § 1, at 567.

In 1949, section 48-d was added to article III of the constitution empowering the legislature to provide for the establishment of rural fire prevention districts and to authorize, with voter approval, levy of an ad valorem tax for the support thereof upon approval by districts' voters.

In 1957, the legislature enacted the provisions of article 2351a-6, V.T.C.S., authorizing the creation of rural fire prevention districts "for the protection of life and property from fire and for the conservation of natural resources." In 1989, the provisions of article 2351a-6 were codified, without substantive change, as chapter 794 of the Health and Safety Code. Acts 1989, 71st Leg., ch. 678, at 2230. Under the provisions of Health and Safety Code chapter 794, a county commissioners court, upon a petition by voters for creation of such a district in the county, and the making of findings as to the feasibility and benefit of a district, must fix the boundaries of the proposed district and submit the issue of its creation and the levy of the aforementioned tax to the voters residing within the boundaries. Health & Safety Code §§ 794.011 - 794.018. If the majority of the qualified voters voting approve the proposition, the district is created as a political subdivision of the state with authority to provide fire protection facilities to prevent and extinguish fires in the district. Id. §§ 794.019, 794.031(7). The governing body of the district is composed of five "fire commissioners" appointed by the commissioners court. Id. § 794.033.

It might be argued that once a rural fire prevention district is created in a county, the county loses its authority under Local Government Code chapter 352 to provide fire protection in the area of the county included in the district. Attorney General Opinion H-279 (1974) addressed this issue in responding to the question whether a county, the entire territory of which was included in a rural fire prevention district, might nevertheless contract with a city for the latter's provision of fire protection in areas outside the city. In its discussion of the question, the opinion stated that while provisions of article 2351a-6 (now Health and Safety Code chapter 794) "suggest the power of fire protection districts is plenary, we do not believe they lend support, either expressly impliedly, to the proposition that the power is exclusive." The opinion concluded:

Although it well may be impractical and inefficient for a county to provide rural fire protection when that duty also is assigned to a rural fire prevention district, it is our opinion that a county is not precluded from doing so.

We adhere to the conclusion of Attorney General Opinion H-279 that a county retains authority to provide fire protection, under the provisions now in Local Government Code chapter 352, even in areas where a rural fire prevention district has been established.¹

If, under Attorney General Opinion H-279, a county may arrange for the provision of such services through a municipality's fire protection facilities, we see no reason why it may not arrange for the provision of such services through the rural fire prevention district itself. Concededly, chapter 352 of the Local Government Code, the provisions now governing county fire protection matters, does not specifically provide for a county's contracting with a rural fire prevention district for fire protection services, while it does provide for such contracts with municipalities, adjoining counties, and incorporated volunteer fire departments. Local Gov't Code § 352.001. We do not think these provisions -- first adopted prior to those in the constitution or statutes authorizing creation of rural fire prevention districts -- impliedly preclude counties' making arrangements with rural fire prevention districts for provision of such services. Article 4413(32c), V.T.C.S., the Interlocal Cooperation Act, in section 4, authorizes contracts between "local governments" -- including counties and other "legally constituted political subdivisions" -- for "performance of any governmental functions or services which all parties to the contract are legally authorized to perform." Rural fire prevention districts are political subdivisions authorized to provide fire protection services. Health & Safety Code §§ 794.003, 794.031(7). As stated above, it is our opinion that counties are also authorized to provide the fire protection services in question.²

The county, in contracting with a rural fire prevention district for the services you ask about will necessarily be requiring provision of services of a particular nature. You do not ask about, and we do not address here, the scope, if any, of the fire marshal's role as coordinator in these matters.

You express concern in your request letter that the county's expending tax revenues, obtained from taxpayers throughout the county, for fire protection services in the portion of the county included in the rural fire prevention district "would technically tax those outside the district for a benefit they would never obtain." We think it is inevitable in the workings of most governmental units that tax moneys raised from all the unit's taxpayers are sometimes applied to projects which do not equally benefit all the unit's citizens.

We do not understand you to suggest that the county, while "funding" the district, will not, or does not intend to, provide county residents in non-district territory over which the county has fire protection authority with any such services. Determinations as to allocation of expenditures for fire protection in the county will involve various factual considerations, such as the differing needs for such services in different parts of the county. Clearly, such determinations are, at least in the first instance, within the reasonable discretion of the commissioners court. See, e.g., Snellen v. Brazoria County, 224 S.W.2d 305 (Tex. Civ. App. - Galveston, writ ref'd n.r.e.) (commissioners court determination of location of county fire truck). Of course, in order to comport with the aforementioned constitutional prohibitions on donations and requirements that expenditures be for a public purpose, county payments to a rural fire prevention district for fire protection services in district territory must secure for county residents of such areas public benefits additional to those which would have been provided by the district absent county funding.

We understand your second question to be whether the county may "fund" a volunteer fire department for provision of fire protection services in non-incorporated areas of the county if the volunteer fire department has also contracted with a rural fire prevention district in the county for provision of fire protection services.

We have concluded with regard to your first question that the county retains its authority under chapter 352 of the Local Government Code to provide fire protection in non-incorporated areas of the county even if a rural fire protection district has been created encompassing such territory. Local Government Code section 352.001 specifically provides for a county's contracting with volunteer fire departments that are incorporated and located in the county for provision of fire protection services in non-incorporated areas of the county. We think it follows that a county may contract with a volunteer fire department that is incorporated for the provision of fire protection services in non-incorporated parts of the county, even where such areas are included in a rural fire prevention district. See Attorney General Opinion V-1214 (1951) (no authorization for county contract for fire protection services with volunteer fire department that is incorporated).³

We caution, as in our discussion of your first question, that county "funding" of an incorporated volunteer fire department must be in consideration for services furthering a county purpose, with adequate controls to insure that benefits to county residents are thereby realized. You suggest a scenario wherein the county would be "funding" a volunteer fire department which itself was already performing fire protection services, under contract, for the rural fire prevention district. Obviously if county funding of the volunteer fire department, under this scenario, realized no additional benefit to the county, because the services in question were already being provided by the volunteer fire department under its contract with the district, such arrangements would contravene constitutional prohibitions on grants of public money and requirements that public expenditures be for a public purpose. See, e.g., Tex. Const. arts. III, § 52; VIII, § 3.

SUMMARY

A county has, under Local Government Code chapter 352, and the Interlocal Cooperation Act, article 4413(32c), V.T.C.S., authority to contract with a rural fire prevention district in the county for the latter's provision of fire protection services in non-incorporated areas of the county included in the rural fire prevention district. A county also has authority under chapter 352 to contract with an incorporated volunteer fire department for provision of fire protection services in non-incorporated areas, even if such areas are included in a rural fire prevention district. Adequate controls must be exercised in connection with such arrangements to insure that public benefits to county residents of such areas are thereby obtained.

Very truly yours,

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

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General