Can a Texas city or district that joined a regional 9-1-1 plan pull out of it on its own?

TX AG Opinion DM-0494: Can a district quit a regional 9-1-1 plan on its own?

Plain-English summary

Texas runs its 9-1-1 emergency telephone service partly through regional plans. Under Health and Safety Code chapter 771, the state Advisory Commission on State Emergency Communications approves regional plans and funds them, and a local "emergency communications district" (which can be a city or other public agency that provided 9-1-1 service before September 1987, or a district created under the Local Government Code) may choose to join the regional plan for its area. The City of Corpus Christi, which had provided its own 9-1-1 service since 1985, joined the Coastal Bend regional plan in 1988 and later decided it wanted out. The advisory commission's executive director asked the Attorney General whether a district that joined a regional plan may pull out unilaterally, who decides when the withdrawal takes effect, and whether the commission still owes the district a slice of the wireless 9-1-1 fee afterward.

On the first question, the Attorney General concluded a district may withdraw. Chapter 771 expressly makes participation optional, and the right to choose to participate carries with it the right not to participate. Nothing in the statute says participation is perpetual or prohibits withdrawal, and the only limit the statute places on a participating district is that it may not collect unauthorized 9-1-1 fees. Reading the act to lock a district in forever, just because the Legislature did not spell out a withdrawal procedure, would force a district to keep participating even when it no longer thought doing so served its residents. If the Legislature had wanted that result, it would have said so.

On the second question, the Attorney General concluded the district, not the commission, sets the effective date of withdrawal. If some other body could pick the date, it could effectively dictate how long the district had to stay in the plan, which would defeat the statute's optional-participation design. The opinion expected a withdrawing district to coordinate a sensible date with the commission and the regional planning commission so 9-1-1 service is not disrupted. On the third question, the Attorney General concluded the commission must still pay the withdrawn district its share of the wireless 9-1-1 service fee. That fee is collected statewide (unlike the ordinary emergency service fee, which applies only in participating areas), and the statute requires the commission to distribute the wireless money to each regional commission and district in proportion to the population it serves. A district that has withdrawn now serves its own population directly, so it is entitled to the proportional share.

Currency note

This opinion was issued in 1998. 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.

Texas reorganized much of its 9-1-1 and emergency communications structure after 1998, and the chapter 771 provisions discussed here (including the fee and distribution rules in sections 771.071, 771.0711, and 771.072) have been amended. Confirm the current statute before relying on any rule about withdrawal or fee distribution.

Who this opinion affected (as of 1998)

Emergency communications districts (including cities running their own 9-1-1 service): The opinion told them participation in a regional plan was optional and could be ended unilaterally, on a date the district itself set.

The Advisory Commission on State Emergency Communications: The opinion meant the commission could not block a district's withdrawal, could not dictate the withdrawal date, and had to keep distributing the withdrawn district its proportional share of the statewide wireless 9-1-1 fee.

Regional planning commissions administering 9-1-1 plans: The opinion meant a participating district could leave their plan, and that the district's population would then be served by the district rather than the regional commission for fee-distribution purposes.

The City of Corpus Christi (and similarly situated home-rule cities): The opinion resolved the dispute in the city's favor on the statutory ground, so the Attorney General did not reach the city's arguments based on its interlocal agreement or home-rule status.

Common questions

Can a city or district that joined a regional 9-1-1 plan leave it?
Yes. The opinion concluded chapter 771 makes participation optional and contains nothing making it perpetual, so a district may withdraw when it no longer wants to participate.

Who decides when the withdrawal takes effect?
The opinion concluded the district sets the effective date, because letting another body choose would let it control how long the district had to stay in, defeating the optional-participation scheme.

Does the district keep getting wireless 9-1-1 money after it leaves?
Yes. The opinion held the wireless 9-1-1 service fee is collected statewide and must be distributed in proportion to population served, so a withdrawn district that serves its own population is entitled to its proportional share.

Did the Attorney General rely on the city's contract or home-rule status?
No. The opinion resolved the question on the statute alone and expressly declined to address the interlocal agreement or home-rule arguments, noting the office does not construe contracts.

Background and statutory framework

The Legislature adopted chapter 771 of the Health and Safety Code in 1987 to implement statewide 9-1-1 service, directing the Advisory Commission on State Emergency Communications to approve and fund regional plans (Health & Safety Code section 771.051). An "emergency communications district" may choose to participate in the regional plan for its area on the commission's approval (sections 771.001, 771.058), and participation does not change the district's organization or authority except that it may not collect unauthorized 9-1-1 fees (section 771.058(c)). The act lets the commission impose a 9-1-1 emergency service fee on local exchange access lines (not in non-participating districts), an equalization surcharge on intrastate long-distance service, and, as newly authorized, a 9-1-1 emergency service fee on each wireless connection, with the wireless money distributed to regional commissions and districts in proportion to population served (sections 771.071, 771.0711, 771.072).

Because the act does not spell out a withdrawal procedure, the Attorney General treated the first question as one of first impression and applied standard construction rules: the goal is to effect legislative intent, the literal language is the primary indicator, intent can be inferred from a provision's absence, and the consequences of a construction may be weighed (Texas Water Comm'n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19 (Tex. 1996); Eldridge v. State, 940 S.W.2d 646 (Tex. Crim. App. 1996); State v. Kaiser, 822 S.W.2d 697 (Tex. App.-Fort Worth 1991, writ ref'd); State v. Broaddus, 952 S.W.2d 598 (Tex. App.-Houston [14th Dist.] 1997, no writ); Gov't Code sections 311.011(a), 311.023(5)). Section 771.058 expressly makes participation optional, and optional participation implies authority not to participate; no provision makes participation perpetual or bars withdrawal. The effective date is the district's to set, because any other rule would let another entity dictate the duration of participation. And section 771.0711(c) requires the commission to distribute the statewide wireless fee in proportion to population served, so a withdrawn district serving its own population is entitled to its share. The Attorney General declined to construe the city's interlocal agreement, noting the office does not interpret contracts (Attorney General Opinions DM-192 (1992), JM-697 (1987)).

Citations

Statutes:

• Tex. Health & Safety Code §§ 771.001, 771.051, 771.055, 771.058, 771.071, 771.0711, 771.072
• Tex. Gov't Code §§ 311.011(a), 311.023(5)
• Tex. Local Gov't Code ch. 391; ch. 772

Cases:

• Texas Water Comm'n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19 (Tex. 1996)
• Eldridge v. State, 940 S.W.2d 646 (Tex. Crim. App. 1996)
• State v. Kaiser, 822 S.W.2d 697 (Tex. App.-Fort Worth 1991, writ ref'd)
• State v. Broaddus, 952 S.W.2d 598 (Tex. App.-Houston [14th Dist.] 1997, no writ)

Prior Attorney General opinions:

• Attorney General Opinions DM-192 (1992), JM-697 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0494
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0494.pdf

Original opinion text

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

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

December 21, 1998

Mr. James D. Goerke
Executive Director, Advisory Commission on State Emergency Communications
333 Guadalupe Street, Suite 2-212
Austin, Texas 78701-3942

Opinion No. DM-494

Re: Whether an emergency communications district may unilaterally withdraw from participation in a regional 9-1-1 plan under Health and Safety Code chapter 771 and related questions (RQ-1021)

Dear Mr. Goerke:

You request an opinion from this office regarding the provisions of chapter 771 of the Health and Safety Code (the "act"). You first ask whether an emergency communications district as defined by section 771.001(3)(A) of the act that elected to participate in a regional 9-1-1 service plan may unilaterally withdraw from the plan. Because the act expressly provides that a district's participation in a regional plan is optional, we conclude that it may so withdraw. You next ask whether the district or the Advisory Commission on State Emergency Communications (the "advisory commission") determines when the withdrawal is effective. Based on our prior answer, we conclude that the withdrawal is effective on the date determined by the district. Finally, you ask whether the advisory commission must distribute a portion of the wireless 9-1-1 emergency service fee authorized by section 771.0711(a) of the act to a district that withdraws from a regional plan. Because the act requires distribution of a portion of the fee to a district that does not participate in a regional plan, we conclude the advisory commission must distribute a portion of the fee to a district that withdraws from a plan.

Before discussing your specific questions, we briefly review the relevant parts of the act. The legislature adopted the act in 1987 to implement a statewide 9-1-1 emergency telephone number service. [Footnote: See Act of May 21, 1987, 70th Leg., R.S., ch. 236, 1987 Tex. Gen. Laws 1541, 1546; House Comm. on State Affairs, Bill Analysis, H.B. 911, 70th Leg. (1987) (Purpose).] [Footnote: "'9-1-1 service' means a telecommunication service that provides the user of the public telephone system the ability to reach a public safety answering point by dialing the digits 9-1-1." Health & Safety Code § 771.001(6).] The act requires the advisory commission to administer implementation of the statewide 9-1-1 service. The advisory commission is directed, among other things, to approve regional plans for establishing and operating a 9-1-1 service, and to allocate money to prepare and operate the regional plans. [Footnote: Health & Safety Code § 771.051(a)(1), (3), (5).]

An emergency communications district ("district"), [Footnote: Health and Safety Code section 771.001(3) states that an "[e]mergency communication district" means: (A) a public agency or group of public agencies acting jointly that provided 9-1-1 service before September 1, 1987, or that had voted or contracted before that date to provide that service; or (B) a district created under Subchapter B, C, or D, Chapter 772 [of the Local Government Code]. [Footnotes omitted.] Section 771.001(7) states that "public agency," in turn, means: the state, a municipality, a county, an emergency communication district, a regional planning commission, an appraisal district, or any other political subdivision or district that provides, participates in the provision of, or has authority to provide fire-fighting, law enforcement, ambulance, medical, 9-1-1, or other emergency services.] may choose to participate in a regional plan for 9-1-1 service for the region in which the district is located on approval of the advisory commission. [Footnote: Health & Safety Code § 771.058(b).] A regional plan is developed and submitted for the advisory commission's approval by each regional planning commission established under Local Government Code chapter 391 (the "regional commission") [Footnote: Id. § 771.001(10) (definition of regional planning commission).] for the region the regional planning commission serves. [Footnote: Id. § 771.055.] Participation in the plan does not affect the organization or operation of the district except that the district may not collect an emergency communication or other special fee for 9-1-1 service unless permitted by the act. [Footnote: Id. § 771.058(c).]

The act authorizes the advisory commission to impose certain fees to finance the regional 9-1-1 service plans. The advisory commission may impose a 9-1-1 emergency service fee on each local exchange access line or equivalent local exchange access line. [Footnote: Id. § 771.071(a). These fees are delivered to the regional planning commissions and distributed to public agencies in the county for use in providing 9-1-1 service. Id. § 771.071(e), (f).] The emergency fee is not applicable to and may not be imposed in a non-participating district. [Footnote: Id. § 771.071(a), (d).] In addition to the 9-1-1 emergency service fee, the advisory commission may impose a 9-1-1 equalization surcharge on each customer receiving intrastate long-distance service, including customers served by a non-participating district. [Footnote: Id. § 771.072(a). A portion of the equalization surcharges collected is allocated by the advisory commission to the Texas Department of Health and to each planning commission or its designated public agency to carry out the regional plans. Id. § 771.072(d), (e). The balance of the surcharge is appropriated to the advisory commission to fund approved regional plans and regional poison control centers and to carry out its duties under the act. Id. § 771.072(f).] Finally, in this past legislative session, the legislature authorized the advisory commission to impose a 9-1-1 emergency service fee on each wireless telecommunications connection. [Footnote: Id. § 771.0711(a).] Moneys collected pursuant to this authorization are distributed by the advisory commission to each regional planning commission and district in proportion to the population served by the commission or district and may be used only for services related to providing 9-1-1 service. [Footnote: Id. § 771.0711(c).]

Having reviewed the relevant portions of the act, we turn back to your specific questions. We understand from briefs submitted by the advisory commission and the City of Corpus Christi (the "city") that the circumstances giving rise to your questions are as follows: The city has provided 9-1-1 service throughout the municipality since November 1985, and is therefore an emergency communication district described in section 771.001(3)(A) of the act, which is not required to, but may, participate in a regional plan to provide 9-1-1 service. The city chose to participate in a regional plan developed by the Coastal Bend Council of Governments ("CBCOG") for the Coastal Bend Region (the "Coastal plan") by a resolution adopted on July 7, 1988. The advisory commission approved the Coastal plan, which included the city, on January 10, 1990. On July 31, 1990, the city entered into an Interlocal Cooperation Agreement with CBCOG (the "interlocal agreement"), extending initially through December 31, 1995, "to provide for the administration of 9-1-1 service in the CBCOG region as authorized by Article 1432(f)[,] Sec. 5(b) [Health and Safety Code section 771.055(b)] and Article 4413(32c) [Government Code chapter 791] V.T.C.S." [Footnote: Interlocal Cooperation Agreement at 1, July 31, 1990.] The city now desires to withdraw from participation in the Coastal plan effective January 1, 1998, and has requested that the advisory commission cease collecting the 9-1-1 emergency service fee within the city effective June 1, 1998.

Because the act does not specifically authorize a district to terminate its participation in a regional plan, you first ask whether the city as an emergency communication district that elected to participate in a regional 9-1-1 plan may later unilaterally withdraw from the plan. No Texas case or attorney general opinion has addressed this question. Several principles, however, guide us in answering this question of first impression. Our ultimate purpose must be to effect the legislature's intent. [Footnote: Texas Water Comm'n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 21 (Tex. 1996).] The primary indicator of legislative intent is the statute's literal language because it best indicates the legislature's intent at the time it adopted the statute. [Footnote: Eldridge v. State, 940 S.W.2d 646, 652 (Tex. Crim. App. 1996).] The existence or nonexistence of the particular intent of a statute may be inferred from the fact that the statute does not contain a certain provision. [Footnote: State v. Kaiser, 822 S.W.2d 697, 700 (Tex. App.--Fort Worth 1991, writ ref'd); see also State v. Broaddus, 952 S.W.2d 598, 601 n.4 (Tex. App.--Houston [14th Dist.] 1997, no writ).] Lastly the consequences of a particular construction may be considered in construing a statute. [Footnote: Gov't Code § 311.023(5).] Application of these principles leads us to conclude that the legislature intended a district's participation in a regional plan to be optional, which necessarily implies that a district may withdraw from a regional plan when it no longer desires to participate.

Looking at the literal language of the act, we observe that the act expressly provides for a district's optional participation in a regional plan. Section 771.058(a) provides that a county of a population of 120,000 or less or another public agency located in the county is not required to participate in a regional plan but may choose to do so. Similarly subsection (b) provides that a district may choose to participate in the regional plan. By definition, optional participation implies the authority not to participate in a regional plan if a district does not so desire. [Footnote: See Gov't Code § 311.011(a) ("Words and phrases shall be read in context and construed according to rules of grammar and common usage."); WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 829 (defining "optional" as "involving an option" and "not compulsory"); id. (defining "option" as "an act of choosing," "the power or right to choose: freedom of choice").]

A district does not lose its authority to choose not to participate in a regional plan by its initial participation in the plan. Section 771.058(c) expressly provides that participation in a regional plan does not affect the organization or operation of a district except that it may not collect the emergency communication fee or other special fee for 9-1-1 service not permitted by the act. Participation in a regional plan does not change a district's identity or authority. The only express limitation on a district's authority resulting from the participation is that the district may not collect 9-1-1 service fees not permitted by the act. There are no other limitations. Thus, a district's authority to choose not to participate in a plan does not change by its participation.

Significantly, there is no provision expressly prohibiting a district from terminating its participation in a regional plan or stating that participation in a plan is perpetual. If the legislature intended a district's participation to be perpetual, we believe it would have so provided and made that intention clear. [Footnote: See Eldridge, 940 S.W.2d at 652 (primary indicator of legislative intent is statute's literal language); Kaiser, 822 S.W.2d at 700 (existence or nonexistence of particular intent may be inferred from fact that statute does not contain certain provision).] It has not done so and we cannot read into the act such an onerous restriction based on the legislature's failure to expressly provide that a district may unilaterally withdraw from a regional plan as the advisory commission argues. Construing the act to prohibit a district from withdrawing from a regional plan would require a district to continue participating when it no longer desires or considers it beneficial to its residents to do so. [Footnote: See Gov't Code § 311.023(5) (court may consider consequence of a particular construction).] If the legislature had intended such a result, it would have expressly so provided.

Given our conclusion that the act impliedly authorizes a district to withdraw from a regional plan, we do not address the city's arguments that its participation in and withdrawal from the Coastal plan is governed by the interlocal agreement with CBCOG [Footnote: In any case, this office does not construe or interpret contracts. See, e.g., Attorney General Opinions DM-192 (1992) at 10, JM-697 (1987) at 6. We note, however, that the interlocal contract plainly states that the contract is for the administration of and not for participation in the Coastal plan. See Interlocal Contract Agreement at 1; Health & Safety Code § 771.055(b) (regional plan may be administered by emergency communication district, municipality, county, or combination of these, or by other means as determined by regional commission).] or by the city's status as a home rule city.

You next ask whether the advisory commission or a district determines the effective date of a district's withdrawal from a regional plan given the act's silence on the subject. Based on our conclusion above that optional participation means that a district may terminate its participation in a regional plan when it no longer desires to participate in the plan, it follows that the effective date of its withdrawal must be the date determined by the district. Determination by any other entity would allow that entity to dictate the duration of a district's participation. This result would render meaningless the statutory provision for a district's optional participation. Presumably, a withdrawing district will designate an effective withdrawal date after conferring with the advisory commission and the regional commission that allows the parties to responsibly address those matters impacting on emergency 9-1-1 service in the region and in the state.

Finally, you ask whether the advisory commission must distribute a portion of the wireless 9-1-1 service fees to an emergency communication district, "which once participated in a regional plan but is no longer participating in a regional plan[.]" Because the statute expressly requires it, we conclude in the affirmative.

Section 771.0711(c) provides that within 15 days of the date of collection of the wireless 9-1-1 service fees

the advisory commission shall distribute to each regional planning commission and emergency communication district a portion of the money that bears the same proportion to the total amount collected that the population of the area served by the commission or district bears to the total combined population of the areas served by a commission or district.

Unlike the emergency service fee that the advisory commission may only impose in geographical areas participating in a regional plan, [Footnote: See Health & Safety Code § 771.071(a).] the advisory commission is authorized to collect the wireless 9-1-1 service fee statewide. [Footnote: See id. § 771.0711(a).] However, the advisory commission must remit to the regional commissions and the districts an amount proportional to the population served by the regional commission and the districts. Population of a district that is no longer participating in a regional plan is, of course, no longer served by the regional commission but by the district. Therefore, by terms of the statute, the district is entitled to that portion of the moneys collected that is proportional to the population the district serves.

SUMMARY

Chapter 771 of the Health and Safety Code impliedly authorizes an emergency communication district that elected to participate in a regional plan for 9-1-1 service to unilaterally withdraw from the plan. Withdrawal from a plan is effective on the date determined by the district. The Advisory Commission on State Emergency Communications must distribute a portion of the wireless 9-1-1 emergency fees collected to the district that withdraws.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee