Could the Lubbock Emergency Communication District sell 911 service outside its boundaries, charge a joining jurisdiction, and immediately change its board?

Texas AG Opinion JM-891: Outside 911 Contracts, Joining Fees, and Board Changes

Plain-English summary

Senator Hugh Parmer asked three questions about the Lubbock Emergency Communication District: whether it could provide 911 service by contract to jurisdictions outside the district, whether it could charge a jurisdiction joining the district, and when the board changed after new territory was added.

The district could contract with a nonmember under the Interlocal Cooperation Act, but both contracting parties had to possess legal authority to perform the service. The emergency district had that power under article 1432e. Cities generally could provide health-and-safety services through ordinance and contract. Counties had only express statutory powers, and article 1432g then authorized county 911 service only for a county with more than 1.5 million residents where no communication district existed.

That distinction mattered for the request. A qualifying city could contract for district service without becoming a member. Hale County did not meet article 1432g's population terms, so it could participate only by joining the district under article 1432e.

The district could charge an incoming jurisdiction. Section 11(c) expressly allowed an additional amount covering the initial cost of providing service to a public agency that joined after formation.

New territory also changed the board's representative composition. The opinion did not remove an incumbent immediately when a newly added city became the second-most-populous city. The current appointee completed the term, and the new city's appointee began after that term expired.

Currency note

This opinion was issued in 1988. 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 district provide 911 service outside its boundaries by contract?

Yes, if the outside jurisdiction independently had authority to provide the same service and the contract met both the Interlocal Cooperation Act and article 1432e.

Could a city buy service without joining the district?

Yes, if the city had adopted authority to provide 911 service, including the necessary ordinance described by the opinion.

Could Hale County contract as an outside county?

No. Hale County did not meet article 1432g's population condition and therefore had to become a member jurisdiction to participate.

Could the district charge a jurisdiction that joined later?

Yes. Section 11(c) allowed an additional charge covering the initial cost of extending service to the incoming jurisdiction.

Did a new city's board representative take office immediately?

No. The incumbent representing the prior second-most-populous city served the remainder of the term. The new appointee began when that term ended.

Background and statutory framework

Article 1432e created emergency communication districts to establish 911 as the primary emergency telephone number and improve coordinated police, fire, medical, rescue, and other emergency response.

The Interlocal Cooperation Act, article 4413(32c), authorized local governments to contract for governmental functions and services, but section 4(b) required each party to possess authority to perform the contracted function. Texas-New Mexico Utilities Co. v. City of Teague, 174 S.W.2d 57 (Tex. Civ. App. - Fort Worth 1943, writ ref'd w.o.m.), supported municipal authority in health-and-safety matters. Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ ref'd), reflected the narrower rule that counties had only powers expressly granted by statute or constitution.

Section 27 of article 1432e allowed a public agency in the district's county or an adjoining county to join by resolutions of the agency and district boards. Section 11(c) authorized the added initial-cost charge.

Section 6 governed board composition. Where the district had a most-populous city, counties and cities received specified voting appointments. The opinion read section 6(b)'s express treatment of later-added counties as evidence that representation changed with territory throughout the act. Because the statute gave no timing rule for replacing a second-most-populous-city appointee, the opinion preserved the incumbent's term before seating the replacement.

Citations

Statutory authority:

• V.T.C.S. article 1432e, sections 2, 3, 6, 11, and 27
• V.T.C.S. article 4413(32c), sections 1, 3, and 4
• V.T.C.S. article 1432g
• Local Government Code sections 51.001, 51.012, 51.014, 51.032, 51.051, and 51.072

Cases:

• Texas-New Mexico Utilities Co. v. City of Teague, 174 S.W.2d 57 (Tex. Civ. App. - Fort Worth 1943, writ ref'd w.o.m.)
• Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ ref'd)

Prior Attorney General materials referenced: H-28 (1973), H-392 (1974), and JM-789 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-891
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0891.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS
P
April 12, 1988

Honorable Hugh Parmer
Opinion No. JM-891
Chairman
Intergovernmental Relations
Re: Whether an emergency
Committee
communication district is
Texas State Senate
authorized under article
P. O. Box 12068
1432e, V.T.C.S., to supply
Austin, Texas 78711
emergency communications
service under contract with other jurisdictions
(RQ-1338)

Dear Senator Parmer:

You ask three questions in regard to the authority and operation of the Lubbock Emergency Communication District. We restate those questions as follows:

1. Does the district have the authority to contract to provide emergency communica- tions services to other jurisdictions without those jurisdictions becoming part of the district?

2. Does the district have the authority to impose an additional fee on an incoming jurisdiction to cover the costs of providing emergency communication services to that jurisdiction?

3. How and when does the membership
of
the board change when new jurisdictions are added to the district?

We have been informed by a brief submitted in response to your questions that the Lubbock Emergency Communication District [hereinafter the district] was created in 1986 P pursuant to article 1432e, V.T.C.S. [hereinafter the act].
Acts 1985, 69th Leg., ch. 288, at 1331.

        Section 2 of        the   act   identifies      the purpose      of   the

act as follows:

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Honorable Hugh Parmer - Page 2 JM-891)

        It is the purpose of this        Act to      esta-

blish the number 9-1-1 as the primary
emergency telephone number for use by ?
certain local governments in this state and
to encourage units of local government and combinations of those units of local govern- ment to develop and improve emergency com- munication procedures and facilities in a manner that will make possible the quick response to any person calling the telephone number 9-1-1 seeking police, fire, medical, rescue, and other emergency services. . . .

The district is composed of Lubbock County and all incor- porated cities located in Lubbock County. The questions arise because the district has received inquiries from Hale County and the City of Plainview in regard to becoming a part of the district or receiving the services of the district.

  Your first question,        regarding   the authority      of the

district to contract to provide emergency communication services to a jurisdiction that is not part of the district, is answered in the affirmative. We understand -, your question to be whether an entity that is authorized to become a part of the district pursuant to the act may, in the alternative, merely contract for 9-1-1 services. The Interlocal Cooperation Act was enacted in 1971 with the purpose of improving "the efficiency and effectiveness of local governments by authorizing the fullest possible range of intergovernmental contracting authority at the local level." V.T.C.S. art. 4413(32c), §1. That act allows local governments to contract for the performance of governmental functions and services. V.T.C.S. art. 4413(32c), §4. Section 3(l) of the act defines "local government" in part as "a county; a home rule city or a city, village, or town organized under the general laws of this state: a special district." Section 3(2) defines "governmental functions and services" as "all or part of any function or service included within the following general areas: police protection and detention services; fire protection . . . public health and welfare."

That act would seem to have anticipated exactly the
kind of contract under consideration here; however section ? 4(b) requires that all parties to a contract for the performance of governmental functions or services must be authorized to perform those functions or services. See Attorney General Opinion Nos. H-28 (1973); H-392 (1974).
?

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Honorable Hugh Parmer - Page 3 (JM-891)

The Lubbock Emergency Communication District is authorized to provide 9-1-1 emergency service. See generally V.T.C.S. art. 1432e.

In general, the duty of municipalities to provide for
the health, safety, and welfare of their inhabitants and their authority to do so through ordinance and contract is well established in Texas law. See Texas-New Mexico Utilities Co. v. City of Teague 174 S.W.2d 57 (Tex. Civ. App. - Fort Worth 1943, writ ref'd w.o.m.): Neal v. San Antonio Water Supply, 211 S.W. 742 (Tex. Civ. App. - San Antonio 1919, writ ref'd); Southwestern Telegraph & Telephone Co. v. City of Dallas, 182 S.W. 42 (Tex. Civ. App. - Dallas 1915, writ ref'd) - Local Gov't Code 55§1.001, §1.012, §1.014, §1.032,
§1.051: §1.072.

Counties do not have the broad range
of authority in
the area of health, safety and welfare that cities have. Counties have no powers or duties except those that are expressly granted and defined by statute or constitution. Harrison County v. City of Marshall 253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ ref'd); Attorney General Opinion JM-789 (1987). We find authorization for a county to provide 9-1-1 emergency service only in article 1432g, which authorization is limited to a county that has a population of more than 1.5 million and in which a communication district has not been established under article 1432e, V.T.C.S. Accordingly, we find that the
district may contract with a county that
comes within the
terms of article 1432g and with any city, general law or home rule, that has an ordinance allowing the city to provide 9-1-1 emergency service. Any such contract would need to meet the requirements of both the Interlocal Cooperation Act (article 4413(32c)) and the district's enabling act (article 1432e). Hale County does not, however, fall within this statute because its population is substantially less than 1.5 million. Therefore, Hale County may participate in the district only by joining as a member jurisdiction pursuant to article 1432e, V.T.C.S.

Your second question concerns the authority of the
district to impose on a jurisdiction, which is becoming a part of the district, an additional charge to cover the cost of providing service. Section 27 of the act provides that a public agency in the county in which the district is located or in an adjoining county may become a part of the district on adoption of a resolution by the governing board of the public agency and approval by the district's board. Section 3(2) of the act defines "public agency"

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Honorable Hugh Parmer - Page 4 JM-891)

as *"any city or county that provides or has authority to provide fire-fighting, law enforcement, ambulance, medical, or other emergency services." ?

Section 11(c) enumerates charges that are assessable
to public agencies that enter the district after its formation. That section expressly authorizes the board to charge the incoming jurisdiction "an additional amount of money to cover the initial cost of providing the service to the incoming jurisdiction." Accordingly, we answer your second question in the affirmative.

Your third question involves the reorganization of
the board upon the addition of new jurisdictions. For the purposes of this opinion we will assume that an adjoining county is to be added to the district. As noted above, section 27 of the act clearly permits non-participating jurisdictions to join the district after its initial formation by the joint action of the board of managers and the governing body of the incoming jurisdiction.

Because the city of Lubbock meets the definition of
"most populous city" found in section 3(6) of the act, section 6(a) governs the appointment of the members of the ? board of managers. That section reads in part as follows:

Sec. 6. (a) If the district has a city meeting the definition of 'most populous city,' the district's governing authority is a board of managers composed of:

(1) one voting member for each county in the district, with the commissioners court of each county appointing its own member:

(2) two voting members appointed by the governing body of the most populous city in the district:

(3) one voting member appointed by the governing body of the second-most populous city in the district:

(4) one voting member appointed to represent the other cities and towns lying
wholly or partly within the district, that
appointment to be made by the mayor's council established to administer urban development block grant funds if such a

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Honorable Hugh Parmer - Page 5 (JM-891)

mayor's council exists and, if a mayor's council does not exist, then by action of the other board members, on the advice and recommendation of the governing bodies of all other cities and towns lying wholly or partly within the district: and

(5) one nonvoting member appointed by the principal service supplier.

While the legislative intent to change the composition of the board upon the addition of new territory is not clear from the language of section 6(a), such an intent is clear from the language found in section 6(b), which governs the composition of the board where there is no "most populous city" within the district. Section 6(b)(l)(B) reads as follows:

[I]f only one county was in the district as the district was originally created but
more than one county is currently in the
district, two voting members appointed by the commissioners court of the county in
P which the district was originally located
and one voting member for each other
county
in the district, with the commissioners court of each of those other counties appointing its own member. . . .

That section clearly indicates that the membership of the board will change with a change in the territory that is included in the district. We find no reason in that regard to distinguish a district that includes a most populous city from one that does not. The legislature intended to create a representative board, albeit remotely representative in the case of other cities and towns in the district (see section 6(a)(4) above).

The legislature has given no direction in regard to the change in the membership of the board upon the addition of new territory. We can find no reason to unseat the member currently representing the second most populous city upon the addition of another city. Further- more, there is public policy to be served by allowing that member to serve the remainder of his term. The statute
does not, however, contemplate the immediate addition of
an additional member to the board. Consequently, we conclude that the member currently appointed by the second most populous city should serve the remainder of his term,

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Honorable Hugh Parmer - Page 6 (JM-891)

and the member appointed by the newly added second most populous city should not begin to serve his term until the completion of the term of that member whom he will
? replace.

SUMMARY

The Lubbock Emergency Communication Dis- trict has the authority under the Interlocal Cooperation Act to contract to provide emer- gency communication services to jurisdictions that are not part of the district. The dis- trict has the authority to impose a fee on an
incoming jurisdiction to cover the cost of
providing emergency communication services to that jurisdiction. The membership of the board will not change until the expiration of the term of the member who will vacate the board.

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 Karen C. Gladney
Assistant Attorney General

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