If a town incorporates inside an existing Texas rural fire prevention district, does it escape the district's taxes?

Texas AG Opinion JM-400: Fire District Taxes New Town

Plain-English summary

A Texas House committee chair described a common local situation. In 1983 the Wimberley Rural Fire Prevention District was formed under article 2351a-6, V.T.C.S., and its voters approved a maximum tax of three cents per hundred dollars of value. In August 1984 an area inside that district incorporated as the town of Woodcreek. The question was whether becoming a town pulled Woodcreek out of the fire district's reach, so its residents would no longer pay the district tax. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

The Attorney General answered that it did not. Woodcreek stayed part of the Wimberley district, and property inside the town remained subject to the district's tax. The rural fire prevention district statute does not say what happens when a municipality incorporates inside a district that already exists, so the AG worked from general principles of Texas local-government law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

The key point is that a city and a limited-purpose special district can occupy the same ground. Two general-purpose municipal corporations cannot both control the same territory at once, but a city with its broad police powers can overlap with a special-purpose entity that has only narrow powers, even when some of their functions coincide. Texas courts had already applied that idea to let a city annex land inside a water control and improvement district. A fire prevention district is exactly that kind of limited-purpose entity, and the statute itself contemplates that cities can sit inside a fire district. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

The AG also drew a line between two kinds of voters. When a city already exists and a new fire district is proposed around it, the statute gives that city's voters a special say: the district cannot pull them in for extra fire-protection taxes unless a majority of them vote for it. But people who choose to incorporate a new town inside a district that is already there are on notice that they live in a fire-protection district, and they get no comparable escape hatch. So Woodcreek's later incorporation did not shed the district or its tax. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

Currency note

This opinion was issued in 1985. 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

Does incorporating a new town remove it from an existing fire district?

No. The AG concluded that a municipality which incorporates inside an already-established rural fire prevention district remains part of the district, absent a statute saying otherwise. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

So does the district still tax property in the new town?

Yes. Because Woodcreek stayed in the Wimberley district, property within the town remained subject to the district's tax under section 10 of article 2351a-6, V.T.C.S. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

How can a city and a fire district cover the same land at the same time?

Because a fire prevention district is a limited-purpose entity, not a competing general-purpose government. Texas law lets a city overlap in territory with a special-purpose district that holds only narrow powers, even where some of their aims overlap. The AG relied on City of Pelly v. Harris County Water Control & Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946), which allowed a city to annex land already inside a water district. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

Do the residents get a vote on whether to be taxed by the district?

Only if their city existed before the district. The statute lets the voters of a pre-existing municipality decline to join a proposed fire district. People who incorporate a new town inside a district that already exists do not get that special procedure, because they knew the district was already there. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

Background and statutory framework

Article III, section 48-d of the Texas Constitution lets the legislature provide for rural fire prevention districts with taxing power, and article 2351a-6, V.T.C.S., carries that out. Under that statute, forming a district starts with a petition and an election. The county commissioners court holds a hearing and, if it finds the district feasible and beneficial to the land involved, grants an election. Where the proposed district takes in an existing incorporated city, the court must separately find the city will benefit, and a majority of the voting electors who live in that municipality must approve joining. That is the protection an existing city's residents get: if they are satisfied with their own fire protection, they need not join and take on the district's added tax. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

The statute is silent, though, on a town that incorporates after the district is up and running. The AG filled that gap with the overlap principle. It noted the rule that two municipal corporations cannot have coexistent control over the same territory, citing City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex. Civ. App. - Galveston 1939, writ ref'd), but explained that the rule does not stop a city from overlapping with a limited-purpose district. City of Pelly v. Harris County Water Control & Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946), and State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258 (Tex. Civ. App. - Houston [1st Dist.] 1978, no writ), support that overlap, and section 8(a) of article 2351a-6 expressly recognizes that cities may be included in a fire prevention district. Treatise and out-of-state authority pointed the same way, including 16A McQuillin, The Law of Municipal Corporations §45.02 (3d ed. 1984), and, by contrast, People v. Lund, 185 N.E.2d 174 (Ill. 1962), where a detailed statute allocated powers between a fire district and a city. With no Texas statute removing a later-incorporated town, Woodcreek stayed in the district. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

Citations and references

• Article III, section 48-d of the Texas Constitution
• article 2351a-6, V.T.C.S. (including sections 8(a) and 10)
• article 1133, V.T.C.S.
• City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex. Civ. App. - Galveston 1939, writ ref'd)
• City of Pelly v. Harris County Water Control & Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946)
• State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258 (Tex. Civ. App. - Houston [1st Dist.] 1978, no writ)
• People v. Lund, 185 N.E.2d 174 (Ill. 1962)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0400
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0400.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

December 20, 1985

Honorable Gary Thompson
Chairman
Committee on County Affairs
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-400

Re: Whether a rural fire prevention district may assess taxes against residents of a municipality which was incorporated after the creation of the district

Dear Representative Thompson:

You inform us that in 1983 the Wimberley Rural Fire Prevention District was formed pursuant to article 2351a-6, V.T.C.S. The voters approved a three cent per hundred dollar maximum tax for the district. In August of 1984, an area within the rural fire prevention district was incorporated under article 1133, V.T.C.S., as the town of Woodcreek. You wish to know whether the incorporation removes the town of Woodcreek from the taxing power of the rural fire prevention district.

Article III, section 48-d of the Texas Constitution authorizes the legislature to provide for the establishment of rural fire prevention districts with taxing power. Article 2351a-6, V.T.C.S., was enacted pursuant to this authority. It establishes a procedure for calling an election to decide whether a rural fire prevention district shall be formed in a stated area. The commissioners court of the county where the proposed district will be located must hold a hearing on the petition for election. If the court determines that organization of the district would be feasible and would benefit the land included therein, it is to grant the petition for election. V.T.C.S. art. 2351a-6, §6. Where the proposed district includes an incorporated city, the court must make a separate determination that the city will be benefited by the district. Id. §8(a). In addition, the majority of electors residing in the municipality and participating in the election to establish the district must vote in favor of it. Id. Thus, if the voters of an existing municipality are satisfied with the fire protection their city offers, they need not join the proposed rural fire prevention district. They may, if they wish, vote to be included in the district and gain additional fire protection from the district as well as become subject to the additional taxes collected to fund the district's operation.

Article 2351a-6 does not expressly deal with the status of a municipality incorporated within the boundaries of a rural fire prevention district after the district is established. It is well established that two municipal corporations cannot have coexistent control over the same territory and contemporaneously exercise the same governmental powers in it. City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex. Civ. App. - Galveston 1939, writ ref'd) (one city may not annex territory which is already part of an incorporated city). A city, with its broad statutory police powers, may overlap in territory with a special purpose municipal entity invested with limited powers, even though some of their purposes are the same. City of Pelly v. Harris County Water Control & Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946) (city may annex territory despite fact that it is located in a water control and improvement district or a water conservation district); State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258 (Tex. Civ. App. - Houston [1st Dist.] 1978, no writ). Article 2351a-6, section 8(a), expressly recognizes that cities may be included in a fire prevention district.

We believe that a city which incorporates within an existing rural fire prevention district remains part of the district, in the absence of statutory provision to the contrary. See 16A McQuillin, The Law of Municipal Corporations §45.02 (3d ed. 1984); cf. People v. Lund, 185 N.E.2d 174 (Ill. 1962) (detailed statutory provisions governing allocation of powers between fire protection district and city). The voters who decide to incorporate are on notice that they reside in a fire protection district. Unlike the voters in a city which exists before the district is established, they do not need a special procedure like that in section 8(a) of article 2351a-6 to avoid additional tax liability for fire prevention services already provided by a city.

The town of Woodcreek remains in the Wimberley Fire Protection District after its incorporation. City of Pelly v. Harris County Water Control & Improvement District No. 7, supra. Property in the town of Woodcreek is accordingly subject to taxation by the district. See V.T.C.S. art. 2351a-6, §10.

SUMMARY

The town of Woodcreek, which was incorporated within the boundaries of the Wimberley Rural Fire Prevention District subsequent to creation of the district, remains part of the district. Property within Woodcreek is subject to taxation by the rural fire prevention district pursuant to section 10 of article 2351a-6, V.T.C.S.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General