Judges And Commissioner Conference Creating And Organizing A New Emergency Services District 2.7.2012

Creating and Organizing a New
Emergency Services District

The Law, The Practical Steps
and What Not to Forget

Judges and Commissioners Conference
February 7, 2012

2705 Bee Cave Road, Suite 110
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2011

What is an ESD?
• ESDs are local political subdivisions that
may provide fire, rescue, EMS and other
emergency services
– Governed by 5 commissioners appointed by
County, except in Harris County and multi
county ESDs
– Primarily funded by property taxes not to
exceed $0.10
Austin, Texas 78746
(512) 614-0901
©2011

Why create an ESD?
• Ensure adequate funding of local fire,
EMS, rescue and other emergency
services
• Spread funding for emergency services
among everyone that might receive those
services

Austin, Texas 78746
(512) 614-0901
©2011

Basic Process
• Petition
• Acceptance by County Commissioners
Court
• Order for Election
• Conducting the Election
• Canvassing the Election
• Order Creating the District
• And Then…
Austin, Texas 78746
(512) 614-0901
©2011

Petition
• 100 Qualified Voters, or a majority if less than
100 Qualified Voters in the Area
• Name of the District
• Boundaries of the District
• Voter Printed Name, Mailing Address, Voter
ID Number, Signature, Date
• Agreement of 2 voters to pay not more than
$150 of costs
• Signatures valid if signed within 180 days of
filing
Austin, Texas 78746
(512) 614-0901
©2011

Petition
• Municipal Consent required if area within City
Limits or ETJ
– written request to City for consent
– 60 days for City to Respond
– if no consent, within 90 days of request, file petition
requesting services
• majority of voters
• 50 percent landowners
– if refusal or no action within 6 months of petition,
deemed consent
• Consent valid for 6 months

Austin, Texas 78746
(512) 614-0901
©2011

Acceptance
• Proper petition received by County Judge
and filed with County Clerk
• Hearing at next regular or special session
after Petition is filed
– Notice of Hearing
• Posted at least 21 days in advance
• Published 2 consecutive weeks (first at least 21
days in advance)
Austin, Texas 78746
(512) 614-0901
©2011

Hearing on Petition
• If Commissioners Court Finds
– that creation of the district is feasible
– will benefit the territory in the district
– will secure the public safety, welfare, and
convenience, and
– will aid in conserving the real property or natural
resources in the proposed district
• Then Commissioners Court shall grant the
petition and fix the district's boundaries
Austin, Texas 78746
(512) 614-0901
©2011

Ordering Election
• Upon granting petition, Commissioners
Court must order election
• Notice of Election same as notice of
hearing on petition
• Election on next Uniform Election Date

Austin, Texas 78746
(512) 614-0901
©2011

Canvassing Election
• District Created if Majority of Votes In
Favor
• Must be Majority of Voters within City
Limits and ETJ in favor of creation to
include those areas in District
• If election fails, must wait one year to try
again
Austin, Texas 78746
(512) 614-0901
©2011

Order Creating District
• In form prescribed by statute
• Order should be filed in County Records together with all
other records relating to creation of District
– Petition
– Municipal Consents
– Order Calling Election and Making Findings regarding
Creation
– Order Canvassing Election and Creating District
• Overlapping Districts
– Services limited to those not provided by existing
district

Austin, Texas 78746
(512) 614-0901
©2011

Commissioner Appointment
 Names of initial board candidates submitted to
Commissioners Court.
– Must be at least 18 years of age; and
– Must be a resident citizen of the state and:
• a qualified voter within areas served by the district; or
• the owner of land subject to taxation in the district.
• Board consists of five commissioners.
• Commissioners serve two-year terms.

Austin, Texas 78746
(512) 614-0901
©2011

Commissioner Appointment
 The commissioners court shall consider relevant
factors in determining the individuals to appoint
as emergency services commissioners,
including whether the individuals have
knowledge that relates to fire prevention or
emergency medical services and that is relevant
to the common policies and practices of the
board.
 Health & Safety Code 775.034(g)
Austin, Texas 78746
(512) 614-0901
©2011

Commissioner Traits to
Consider
• Professional Business Management
• Strong Leadership and People Skills
• Medical/EMS knowledge and/or experience
• Fire Suppression knowledge and/or experience
• Real Estate/Building Construction
• Banking and Investments
• Information Technology
• Working Knowledge of the Open Meetings Act
• Must be bondable
• Intangibles

Austin, Texas 78746
(512) 614-0901
©2011

Consider
• Conflicts – 775 Districts
– Commissioners are subject to Chapter 171,
Local Government Code.
• Health & Safety Code 775.038(d)
– If a local public official has a substantial interest
in a business entity or in real property, the official
shall file, before a vote or decision on any matter
involving the business entity or the real property,
an affidavit stating the nature and extent of the
interest and shall abstain from further
participation in the matter if…
Austin, Texas 78746
(512) 614-0901
©2011

Consider
• SUBSTANTIAL INTEREST IN BUSINESS
ENTITY.
– owns 10 percent or more of stock or shares or owns either
10 percent or more or $15,000 or more of the fair market
value; or
– funds received exceed 10 percent of the person's gross
income for the previous year.
• SUBSTANTIAL INTEREST IN REAL PROPERTY.
– equitable or legal ownership with a fair market value of
$2,500 or more.
• NEPOTISM
– A local public official is considered to have a substantial
interest under this section if a person related to the official
in the first degree by consanguinity or affinity, as
determined under Chapter 573, Government Code, has a
substantial interest under this section. 2705 Bee Cave Road, Suite 110
Austin, Texas 78746
(512) 614-0901
©2011

The Impact of SB 917
Effective June 17, 2011

Austin, Texas 78746
(512) 614-0901
©2011

SB 917
• Overlapping Districts
• Consolidation of Districts
• Fireworks Regulation
• Commissioner Training
• Removal of Commissioners
• Budget and Tax Rate Process
• Audit Filing
• 775.085 Loans
• Chapter 776 ESDs Converted to 775

Austin, Texas 78746
(512) 614-0901
©2011

Overlapping Districts (SB 917)
• Adds requirements for proposed districts
whose territories overlap existing districts
(excluding districts in counties of >3M
people)
– The county commissioners’ court(s) in the
proposed district is required to send a copy of the
petition to the existing district’s board.
– The board of the existing district, before the
election to create the proposed district, must
adopt a statement detailing the types of services
it will provide in the overlapping territory if the
proposed district is created.
Austin, Texas 78746
(512) 614-0901
©2011


• Amends Chapter 775.0205, which prohibited the
most recently created district from providing
duplicative services in territory overlapping
another district effective the date the most recent
district was created:
– Eliminates the prohibition against the districts
providing duplicative services as of the date of
creation of the new district, and adds a reference to
the statement of services that the existing district is
required to adopt, effectively allowing the existing
district to continue providing any services until the
newly created district assumes its obligations; and
Austin, Texas 78746
(512) 614-0901
©2011

– Authorizes a person to serve as commissioner of two
districts with overlapping territory, and specifies that
the person:
• may be compensated for serving on only one of the
boards; and
• may be reimbursed for reasonable and necessary
expenses incurred in performing duties for both boards.

Austin, Texas 78746
(512) 614-0901
©2011

Service Contracts (SB 917)

• Authorizes board to contract with local
governments, including other districts, to provide
necessary
staff, facilities, equipment, programs, or services
• Provides that a person acting under a contract
under this authorization is not holding more than
one office of emolument, honor, trust or profit.
• Addresses liability issues and mechanisms for
transferring liability between contracting entities.
Austin, Texas 78746
(512) 614-0901
©2011

Consolidation (SB 917)
• The voters in every district included in a proposed
merger were required to approve the merger in order
for any merger to take place and the tax rates of
merging districts were reduced to the lowest level
authorized in a district that was merged. The
amendment provides the following:
– Every district whose voters approve the consolidation will
be consolidated, notwithstanding that voters in one or
more of the other districts proposed to be consolidated
decline to approve the consolidation.
– Those districts whose voters do not approve the
consolidation will not be included in the consolidated
district.

Austin, Texas 78746
(512) 614-0901
©2011

– Before consolidation, participating districts must:
• determine that the consolidation will provide for the
more efficient and economical provision of services by
the districts
• adopt a joint order that includes:
– the new name and territory included in the consolidated
district; the date of consolidation
– if the maximum ad valorem tax rate differs among the
districts, a statement that consolidation will only take place
if voters approve an equalized tax rate
– a statement that consolidation will only take place if the
residents in the district and at least one other district
approve

Austin, Texas 78746
(512) 614-0901
©2011


– Commissioners will be appointed (or designated by
statute in cases where existing commissioners had
been elected) if the boards of the consolidated
districts do not appoint five commissioners by the
31st day after the adoption of the joint order
– The required ballot language was amended to
incorporate the changes to the requirements set forth
above as well as specifying the terms to be served by
the commissioners

Austin, Texas 78746
(512) 614-0901
©2011

Consolidations (SB 917)
– If the districts have different maximum ad valorem tax
rates:
• The district with the lowest maximum ad valorem tax rate must
order an election to authorize the imposition of a tax at the
maximum rate authorized in the district with the higher maximum
rate.
• If a majority of the voters do not favor the increase, consolidation
does not take place.
– If the districts have differing sales and use tax rates:
• The consolidated district must designate the territory of the former
districts as sub-districts.
• The board must continue to impose the existing sales and use
taxes.
• The board must send to the comptroller a copy of the joint order
and a map of the consolidated district that shows the territories of
the sub-districts.
• The sub-districts or consolidated district are not prohibited from
holding a sales and use tax election to alter the sales andCave Road, Suite 110
2705 Bee use tax
rate. Austin, Texas 78746
(512) 614-0901
©2011

Fireworks (SB 917)

• A district may not regulate the sale, use or
transportation of fireworks, except as provided in
Section 775.0363.
• That Section provides that a district may adopt rules
that are the same as or less stringent than those
adopted or enforced by the commissioner of
insurance and the state fire marshal relating to retail
fireworks stands, fireworks bulk manufacturing and
storage facilities, fireworks sales buildings, or any
other structure used in public pyrotechnic displays.
Austin, Texas 78746
(512) 614-0901
©2011

Training (SB 917)
• Requires at least six hours of certified continuing
education at least once in a two-year period and
carry forward not more than three hours from one
period to the next.
• Provides that, for purposes of removal of a
commissioner, “incompetency” includes failure to
comply with training requirements.

Austin, Texas 78746
(512) 614-0901
©2011

Training requirements under
HB 1619
• Training course must provide instruction
in:
– district responsibilities;
– board responsibilities;
– government administration;
– ethics laws relating to public officers; and
– the governance and management of
emergency services.
Austin, Texas 78746
(512) 614-0901
©2011

Removal (SB 917)
Appointed Commissioners

• Language specifies that the section does not apply unless
adopted by the county commissioners court of the county by
resolution.
• Adds as grounds for removal of an appointed board member:
– incompetency
– official misconduct
– misconduct
• Removal deliberation is made subject to 551.0745,
Government Code (providing for closed meeting to discuss
certain personnel matters).
• Opportunity is provided for the board member to show cause
why the board member should not be removed.
Austin, Texas 78746
(512) 614-0901
©2011

Removal (SB 917)
Elected Commissioners

• Section requires use of the procedures set forth in the Local
Government Code for removing county officers.
• Provides the grounds for removal:
– incompetency
– official misconduct
– intoxication
– misconduct

Austin, Texas 78746
(512) 614-0901
©2011

Budget and Tax Rate (SB 917)

• Prohibits the board from setting the tax rate for a
fiscal year before adopting the budget.

Austin, Texas 78746
(512) 614-0901
©2011

Audits (SB 917)
• If a district fails to complete and file the required
audit report by September 1 and a county
auditor is not ordered to prepare the report, the
board president and treasurer are automatically
removed and the commissioners’ court is
required to fill the vacancies.
• Only applies to district in a single county, and not
in Harris County.

Austin, Texas 78746
(512) 614-0901
©2011

775.085 Loans (SB 917)

• Clarifies that loans under 775.085 are not
subject to the requirement to hold an
election to approve bonds and notes.

Austin, Texas 78746
(512) 614-0901
©2011

776 ESDs Conversion (SB 917)

• Repealed Chapter 776 of the Texas
Health & Safety Code and converted all of
the districts operating under that chapter
to districts operating under Chapter 775 of
the same code.

Austin, Texas 78746
(512) 614-0901
©2011

SAFE-D
• Texas State Association of Fire and
Emergency Districts
• Annual Conference
• Regional Conferences
• Website – www.safe-d.org

Austin, Texas 78746
(512) 614-0901
©2011

Creating and Organizing a New
Emergency Services District

John J. Carlton
The Carlton Law Firm, P.L.L.C.
2705 Bee Cave Rd., Suite 110
Austin, Texas 78746
(512) 614-0901
john@carltonlawaustin.com
Austin, Texas 78746
(512) 614-0901
©2011

Judges And Commissioner Conference Creating And Organizing A New Emergency Services District 2.7.2012

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Judges And Commissioner Conference Creating And Organizing A New Emergency Services District 2.7.2012