2012 Safe D 11th Annual Conference Overlapping Districts

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Presentation regarding overlapping Emergency Services Districts in Texas at SAFE-D Annual Conference in February 2012

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2012 Safe D 11th Annual Conference Overlapping Districts

  1. 1. Overlapping DistrictsSAFE-D 11th Annual Conference February 24, 2012 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011 ©2012
  2. 2. Creating an Overlapping District• Why create another ESD? – Additional Services • Fire • EMS • Rescue • More….. – Additional Tax Revenues • Constitutional Cap is $0.10 per District• DOES NOT APPLY TO HARRIS COUNTY 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  3. 3. Single ESD 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  4. 4. Add Overlapping ESD 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  5. 5. Add Overlapping Entity 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  6. 6. Add Overlapping ESD 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  7. 7. Adjacent ESDs 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  8. 8. Add Overlapping ESD 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  9. 9. Basic Process• Petition• Acceptance by County Commissioners Court• Notice to Existing ESD• Municipal Consent• Public Hearing• Order for Election• Conducting the Election• Canvassing the Election• Order Creating the District• And Then… 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  10. 10. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  11. 11. Boundaries• May be designated by metes and bounds or other sufficient legal description• A statement that the boundaries are coextensive with the boundaries of another political subdivision, as those boundaries exist on a particular date, is a sufficient legal description• CAUTION: Confirm accuracy and consistency of legal description and any 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 maps showing district. (512) 614-0901 www.carltonlawaustin.com ©2012
  12. 12. Use Boundaries of Existing ESD 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  13. 13. Use Boundaries of Multiple ESDs 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  14. 14. 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 – Sheriff must post on Courthouse door at least 21 days in advance – Sheriff must publish in newspaper for 2 consecutive weeks (first at least 21 days in advance) 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  15. 15. Notice of Hearing• County clerk provides Sheriff with the notice of the hearing, which must state: – that creation of a district is proposed; – that it is to be created and is to operate under Article III, Section 48-e, of the Texas Constitution; – the name of the proposed district; – the districts boundaries as stated in the petition; – place, date, and time of the hearing; and – that persons of interest may attend and present argument. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  16. 16. Evidence of Notice• The return of each officer executing notice must: – be endorsed or attached to a copy of the notice; – show the execution of the notice; – specify the dates of posting and publication; and – include a printed copy of the published notice. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  17. 17. Proposed Overlap• Where the proposed district overlaps an existing district: – Commissioners Court sends copy of the petition to the existing district – Before election, existing district must adopt a statement of services detailing the services it will provide in the overlapping territory if the proposed district is created 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  18. 18. Statement of Services• Operations • Management – Fire – Fire Code – EMS Transport – Fire Marshal – First Response EMS – Billing – Hazardous Materials – Capital Financing & – Rescue Ownership – Others… – Administration – More… 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  19. 19. Municipal Consent• Municipal Consent required for 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  20. 20. Need Consent from City For City Limits and ETJ 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  21. 21. Special Consent Provisions• Municipal Consent for City >1 Million and County <1.4 Million Population (San Antonio/Bexar County) – limit the districts ability to incur debt; – require the district to ensure that its equipment is compatible with the municipalitys equipment; and – require the district to enter into mutual aid agreements. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  22. 22. Findings for Creation• After the hearing and 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 districts boundaries 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  23. 23. Findings if City Included• If the proposed district includes municipal territory, the commissioners court must determine if the district would still promote the public safety, welfare, health and convenience of residents if the municipal territory were excluded.• The commissioners court must make this finding in connection with each affected municipality. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  24. 24. Okay if City Not Included? For City Limits and ETJ 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  25. 25. Adverse Findings• If the Commissioners Court finds that the proposed district does not meet these requirements, the Commissioners Court must deny the petition.• Commissioners Court decision is discretionary. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  26. 26. Ordering Election• Upon granting petition, Commissioners Court must order election• Ballot must include any terms negotiated with an affected municipality.• Notice of the election must be given in the same manner as the notice of the petition hearing.• Election must be held on the first authorized uniform election date that allows sufficient time to comply with other requirements of law. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  27. 27. Canvassing Election• District Created if Majority of Votes In Favor• Must be Majority of Voters within City Limits or ETJ in favor of creation to include those areas in District – If such territory is excluded, creation is not defeated if the commissioners court’s required findings regarding the remaining territory are favorable to creation. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  28. 28. What did Commissioners Decide? For City Limits and ETJ 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  29. 29. Canvassing Election• Upon creation, the commissioners court shall enter in its minutes an order containing language prescribed by the statute as well as any negotiated conditions that were included on the ballot.• If election fails, must wait one year to try again 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  30. 30. Order Creating District• In form proscribed 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  31. 31. Overlapping District Issues• The existing district must provide the statement of services to the proposed district after its creation• The new district may not provide services in the overlapping territory that duplicate the services provided by the existing district as set forth in the statement of services 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  32. 32. Getting Set Up• Board Members• Ad Valorem Taxes• Sales Taxes• Contracts for Services 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  33. 33. Board Members• Commissioners may serve on two districts• A commissioner serving two districts may: – only receive compensation from one board – and be reimbursed for expenses by both.• May want to submit names of initial board candidates to Commissioners Court. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  34. 34. Board Members• Appointed by Commissioners Court – May be members of the existing district(s) – Must execute Statement and Oath – No emolument or dual office holding issues – Must be aware of potential conflict of interest 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  35. 35. Same Board Members? 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  36. 36. Board Members from each overlapped District? 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  37. 37. Ad Valorem Taxes• Impact on Tax Rates – Transfer of governmental functions? • Tax Code §26.04(i) and (j) – “agreed by written contract to transfer a distinct department, function, or activity to another taxing unit…” – No contract transfer unless Existing District and Proposed District decide to enter into one 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  38. 38. Ad Valorem Taxes• If Transfer by Contract: – Change in Rollback Rate Calculation • Reduces revenues used to calculate Rollback Rate for transferring district by amount of O&M revenue used to fund transferred function • Increases revenues used to calculate Rollback Rate for receiving district by amount of O&M revenue used to fund transferred function 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  39. 39. Sales Tax• Existing District keeps all Sales & Use Tax authority• New District can seek Sales & Use Tax authority where available under 2% Local Cap – Including possible “carve out” areas 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  40. 40. Overlapping ESD May Get 1% 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  41. 41. Overlapping ESD May Get 0.5% PLUS 1.0% Outside Local Entity 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  42. 42. Overlapping ESD May Get Mixed Sales Tax 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  43. 43. Contract for Services• Authority under Interlocal Cooperation Act or H&S Code 775.0366 (as added by SB 917)• May contract with others for services – Including overlapping ESD – ESD as contract provider may provider services that the ESD requiring services is authorized to provide 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  44. 44. Contract for Services• Fire ESD Provides to EMS ESD: – EMS Transport? – First Response EMS? – Medical Director?• EMS ESD Provides to Fire ESD: – Fire Suppression? – Fire Code Enforcement? – Rescue Services? 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  45. 45. Contract for Services• Other Models? – ESD Provides Building and Equipment – ESD Provides Administration/Management – Other Options… 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  46. 46. QUESTIONS? 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012
  47. 47. OVERLAPPING DISTRICTS John J. Carlton The Carlton Law Firm, P.L.L.C. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 john@carltonlawaustin.com 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2012

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