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:




                                    p. 4364

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).
?

                          p. 4365

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"

                             p. 4366

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




                           p. 4367


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,




                              p. 4368

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

                              p. 4369