Can a Texas county pay its fire marshal's salary out of the county health services sales tax?

Plain-English summary

The Chambers County Auditor asked the AG about a funding plan the commissioners court was considering. The county wanted to hire a full-time fire marshal and safety coordinator and pay half of the position's salary and benefits out of a county sales and use tax imposed under chapter 324 of the Tax Code. The auditor asked whether that was a permitted use of the money.

Chapter 324 lets certain smaller counties (population 50,000 or less) impose a sales and use tax for health services, and section 324.081 ties the spending down tightly: revenue from the tax may be used only to provide health services in the county, and the county may allocate all or part of it to a county hospital authority or hospital district with the same boundaries as the county, or to a public health district the county participates in. The Legislature did not define "health services," so the AG used the ordinary meaning of "health" (being sound in body, especially freedom from physical disease or pain) and read the term in light of the entities the statute names as recipients.

Those entities all do medical and public-health work: a county hospital authority builds and operates a hospital; a hospital district provides hospital services and promotes health; a public health district provides services like infectious disease control, environmental and consumer health programs, public health education, and laboratory services. Using the interpretive rule that general words take meaning from the specific things listed alongside them, the AG read "health services" to mean services for the direct treatment and prevention of physical pain and disease provided to the public.

Measured against that, the fire marshal and safety coordinator did not fit. The materials with the request showed the position handled fire prevention and inspection, monthly safety training, accident investigations, safety audits, job-site inspections, and emergency-management assistance, duties that match the statutory office of county fire marshal. Those are fire-inspection, fire-prevention, and safety functions. Even though safer conditions might mean fewer injuries down the line, the AG concluded that a court would likely find the position's duties were not the kind of direct health services chapter 324 contemplates, so the county could not pay the salary from the health services sales tax.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county auditor (as the opinion described it): The opinion answered that a court would likely conclude the commissioners court may not fund the fire marshal and safety coordinator salary through chapter 324 health services sales tax revenue, because section 324.081 limits that revenue to health services in the county.

The commissioners court (as the opinion described it): The opinion treated the chapter 324 tax as a dedicated fund the court could spend only on health services, and described the fire marshal and safety coordinator's duties as fire prevention, inspection, and safety work outside that category.

County taxpayers (as the opinion described them): The opinion explained that the health services sales tax authorized under chapter 324 is restricted to providing health services and the entities that deliver them, not general county safety positions.

Common questions

Can a county fire marshal's salary be paid from the chapter 324 health services sales tax?
Under this opinion, a court would likely say no. The AG concluded the position's fire prevention and safety duties are not the health services that section 324.081 allows the tax to fund.

What can the chapter 324 sales tax actually pay for?
The opinion said the revenue may be used only to provide health services in the county, and the statute lets the county allocate it to a county hospital authority, a hospital district with the same boundaries, or a public health district the county participates in.

Why doesn't general public safety count as a "health service" here?
The AG read "health services" in light of the hospital and public-health entities the statute names, meaning services for the direct treatment and prevention of physical pain and disease, not fire prevention or safety work that only indirectly affects health.

Does this stop the county from hiring a fire marshal?
No. The opinion addressed only the funding source. It concluded the chapter 324 health services tax could not pay the salary, not that the county was barred from establishing the office under the Local Government Code.

Background and statutory framework

Chapter 324 of the Tax Code authorizes certain counties (population 50,000 or less) to impose a sales and use tax for health services (Tex. Tax Code §§ 324.021, 324.021(a)). Section 324.081 provides that revenue from the tax may be used only to provide health services in the county, and the county may allocate all or part of it to a county hospital authority or hospital district having the same boundaries as the county, or to a public health district in which the county participates (Tex. Tax Code § 324.081). The Legislature did not define "health services," so courts apply the common, ordinary meaning of an undefined term, looking first to dictionaries and then to usage in other statutes and decisions (Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 34-35 (Tex. 2017)).

The recipients named in section 324.081 perform medical and public-health functions: a county hospital authority may construct, equip, operate, and maintain a hospital (Tex. Health & Safety Code § 264.022(a)-(b)); a hospital district must provide adequate hospital services and may promote health in the district (Tex. Health & Safety Code §§ 282.049-.050); and a public health district must provide at least the public health services listed in section 121.006(d), such as personal health promotion, infectious disease control, environmental and consumer health programs, public health education, and laboratory services (Tex. Health & Safety Code §§ 121.043(b), 121.006(d)). Because general words take meaning from the particular things designated with them (R.R. Comm'n of Tex. v. Tex. for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex. 2011)), the AG read "health services" as services for the direct treatment and prevention of physical pain and disease provided to the public.

The fire marshal and safety coordinator's duties (fire investigation and inspection, safety training, accident investigations, safety audits, job-site inspections, and emergency-management assistance) match the statutory office of county fire marshal, which investigates the cause of fires, inspects structures for life-safety hazards, and may be established and equipped by the commissioners court (Tex. Loc. Gov't Code §§ 352.011(a), 352.013(a), 352.016(b)). Those duties relate to fire inspection, fire prevention, and safety rather than the direct treatment and prevention of physical pain and disease, so the AG concluded a court would likely find them outside section 324.081 and not fundable from the health services sales tax (Tex. Tax Code § 324.081).

Citations

Statutes:

• Tex. Tax Code §§ 324.021, 324.021(a), 324.081
• Tex. Health & Safety Code §§ 264.022(a)-(b), 282.049-.050, 121.043(b), 121.006(d)
• Tex. Loc. Gov't Code §§ 352.011(a), 352.013(a), 352.016(b)

Cases:

• Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28 (Tex. 2017)
• R.R. Comm'n of Tex. v. Tex. for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0162
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0162.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 8, 2017

Mr. Tony Sims Opinion No. KP-0162
Chambers County Auditor
404 Washington Avenue Re: Whether a commissioners court may fund
Post Office Box 910 the county fire marshal and safety coordinator
Anahuac, Texas 77514 position through revenue generated by a sales
and use tax imposed pursuant to chapter 324 of
the Tax Code (RQ-0152-KP)

Dear Mr. Sims:

    You tell us that the Chambers County commissioners court wants to hire a full-time fire marshal and safety coordinator "and fund 50% of the annual salary and benefits" for the position from sales and use tax revenue generated under chapter 324 of the Tax Code. [1] You ask whether the commissioners court may fund the position in this manner. [2] Request Letter at 1. Chapter 324 of the Tax Code authorizes certain counties to impose a sales and use tax for health services. [3] TEX. TAX CODE § 324.021. Section 324.081 limits the county's use of revenue generated from the tax:

            Revenue from the tax imposed under this chapter may be used only to provide health services in the county. The county imposing the tax may allocate all or part of that revenue to:

                 (1) a county hospital authority or a hospital district having the same boundaries as the county; or

                 (2) a public health district in which the county participates.

Id. § 324.081.

    The Legislature did not define "health services" for purposes of chapter 324. When a statute contains an undefined term, courts apply the common, ordinary meaning of the term unless a contrary meaning is apparent from the language of the provision. Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 34 (Tex. 2017). To determine a term's common, ordinary meaning, courts "typically look first to the dictionary definitions and then consider the term's usage in other statutes, court decisions, and similar authorities." Id. at 35. "Health" is "the condition of being sound in body, mind or spirit," especially "freedom from physical disease or pain." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 574 (11th ed. 2004). Section 324.081 itself identifies three potential recipients of all or part of the tax revenue: certain county hospital authorities, hospital districts, and public health districts. TEX. TAX CODE § 324.081. That the Legislature specified these entities as authorized recipients of the tax revenue suggests that it intended "health services" to relate to the functions these entities perform. Thus, we consider the meaning of "health services" in light of the authority the Legislature gave these entities.

    A county hospital authority may "construct, purchase, enlarge, furnish, or equip," and "operate and maintain" a hospital in the county. TEX. HEALTH & SAFETY CODE § 264.022(a)-(b). A county hospital district must "provide adequate hospital services" and may generally "promote health in the district." Id. §§ 282.049-.050. A public health district must provide at a minimum all the public health services listed in subsection 121.006(d) of the Health & Safety Code. See id. § 121.043(b); see also id. § 121.006(d) (defining such public health services as personal health promotion and maintenance, infectious disease control and prevention, environmental and consumer health programs, public health education and information, laboratory services, and administrative services). "When words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation." R.R. Comm'n of Tex. v. Tex. for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex. 2011) (quotation marks omitted). Here, the Legislature identified a class of "health services" in section 324.081 that relate to the treatment and prevention of physical pain and disease to members of the public. TEX. TAX CODE § 324.081. Taking into account this treatment of the term "health services," we examine the responsibilities of the Chambers County fire marshal and safety coordinator.

    According to materials submitted with your request, the Chambers County fire marshal and safety coordinator "conducts fire prevention and inspection activities" for the unincorporated areas of the county, coordinates safety program activities, including "monthly safety training programs, accident investigations, safety audits, and job site inspection," and assists emergency management as needed. Attachment at 1. The majority of these duties correspond with the statutory duties of the office of county fire marshal. See TEX. LOC. GOV'T CODE §§ 352.013(a) (requiring the county fire marshal to "(1) investigate the cause, origin, and circumstances of fires . . . and (2) determine whether a fire was the result of negligent or intentional conduct"), .016(b) (authorizing a county fire marshal to inspect structures for life safety hazards in "the interest of safety and fire prevention"); see also id. § 352.011(a) (authorizing a county commissioners court to "establish the office of county fire marshal and provide office facilities, equipment, transportation, assistants, and professional services for that office").

    The fire marshal and safety coordinator position provides services related mainly to fire inspection, fire prevention, and safety. In contrast, section 324.081 limits the use of tax revenue to the provision of health services in the county. See TEX. TAX CODE § 324.081. While the duties of the fire marshal and safety coordinator may contribute to the overall safety of the community, which could result in fewer instances of injury for which a person might seek treatment, the general statutory scheme of section 324.081 relates to services for the direct treatment and prevention of physical pain and disease provided to members of the public. See id. Accordingly, a court would likely conclude that the duties of the Chambers County fire marshal and safety coordinator are not within the class of services contemplated by section 324.081, and the county thus may not use tax revenues from the imposition of a county health services sales and use tax to fund the salary for the position.

                                SUMMARY

                 A court would likely conclude that a commissioners court
          may not fund the salary of a county fire marshal and safety
          coordinator position through revenue generated by a sales and use
          tax imposed pursuant to chapter 324 of the Tax Code.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] Letter and Attachment from Mr. Tony Sims, Chambers Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 28, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Attachment," respectively).

[2] We understand you to refer to a "fire marshal and safety coordinator" as a single position with a title denoting dual roles and not as two separate positions.

[3] Chapter 324 applies to a county with a population of 50,000 or less. TEX. TAX CODE § 324.021(a). The population of Chambers County is 35,096. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2010 CENSUS OF POPULATION: TEXAS QUICKFACTS, http://www.quickfacts.census.gov.