Attorney General OpinionRuling Addresses Emergency Service District
In Opinion No. JC-0392, issued June 19, Attorney General John Cornyn addressed questions dealing with a proposed countywide emergency services (EMS) district that will overlap with a rural fire prevention district. He held that the commissioners court is limited to ordering an election to authorize the levy of a tax not to exceed two cents on each $100 of the taxable value of property taxable by the EMS.
Llano County Attorney Cheryll Mabray asked whether a commissioners court that orders an election to create an EMS district overlapping with a rural fire prevention district was limited to only two cents on each $100 of value. She asked, if at least in some parts of the county, the commissioners court could order an election authorizing a tax not to exceed 10 cents on each $100 of value. Llano County has two rural fire prevention districts, but they do not cover the entire county. The fire prevention districts have taxing authority up to three cents on each $100 of value.
Mabray also asked if the provision limiting the tax rate to two cents was unconstitutional. She asked the attorney general to review Texas Constitution, Article III, Section 48-e, that limits the Legislature's authority only to authorizing affected commissioners courts to impose a tax "not to exceed Ten Cents (10 cents) on the One Hundred Dollars ($100.00) valuation."
Health and Safety Code Chapters 775 and 776 provide for creating EMS districts. Chapter 776 pertains to an EMS district in counties with a population of 125,000 or less. Section 776.019 requires a commissioners court, upon granting a petition to create an EMS district, to order an election to confirm creating the district and to authorize a property tax. The tax may not exceed (1) 10 cents on each $100 of taxable value; or (2) two cents on each $100 of the taxable value if any area in the district is also included in a rural fire prevention district.
The opinion held that the limitation on the tax rate, triggered if any area in the proposed EMS district is also in a rural fire prevention district, applies throughout the EMS district. It found no provision in the statute or elsewhere in chapter 776 for a tax with varying rates in different areas of the district, depending upon whether a particular area is also within a rural fire prevention district. It concluded that, when a proposed EMS district will overlap with a rural fire prevention district, the commissioners court is limited to a tax not to exceed two cents. It said that the commissioners court may not order an election authorizing a tax with varying rates in different areas of the proposed EMS district.
The opinion also held that Section 776.019’s limitation to a rate of two cents was constitutional. It concluded that Section 48-e permits the legislature to enact laws authorizing the levy of a lesser tax.
“Counties and special districts' authority must be express or necessarily implied from their express powers. The legislature, however, is not subject to the same constraints. Unlike counties and special districts, which must look to statutes and the constitution for grants of authority, the legislature need only look to the constitution for express and implied limitations on its authority. That is because our state legislature is vested with the lawmaking power of the people by virtue of article III, section 1 of the Texas Constitution,” the opinion stated.
The opinion also stated that, to the extent Attorney General Opinion JM-1010 (1989) suggested that article III, section 48-e limited the authority of the legislature to provide for the levy of a tax of less than ten cents, it was overruled.