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

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Presentation to V.G. Young Institute of County Government: School for County Commissioners Courts regarding Emergency Services Districts in Texas and the impacts of SB 917

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

  1. 1. 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
  2. 2. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  3. 3. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  4. 4. Basic Process• Petition• Acceptance by County Commissioners Court• 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 ©2011
  5. 5. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  6. 6. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  7. 7. 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) 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  8. 8. 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 districts boundaries 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  9. 9. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  10. 10. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  11. 11. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  12. 12. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  13. 13. 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) 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  14. 14. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  15. 15. Commissioner Traits to 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… 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  16. 16. Commissioner Traits to 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 persons 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 www.carltonlawaustin.com ©2011
  17. 17. The Impact of SB 917 Effective June 17, 2011 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  18. 18. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  19. 19. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  20. 20. Overlapping Districts (SB 917)• 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  21. 21. Overlapping Districts (SB 917)– 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  22. 22. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  23. 23. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  24. 24. Consolidation (SB 917)– 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  25. 25. Consolidation (SB 917)– 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  26. 26. 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 www.carltonlawaustin.com ©2011
  27. 27. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  28. 28. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  29. 29. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  30. 30. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  31. 31. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  32. 32. Budget and Tax Rate (SB 917)• Prohibits the board from setting the tax rate for a fiscal year before adopting the budget. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  33. 33. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  34. 34. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  35. 35. 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. 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  36. 36. SAFE-D• Texas State Association of Fire and Emergency Districts• Annual Conference• Regional Conferences• Website – www.safe-d.org 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  37. 37. Questions? 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011
  38. 38. 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 2705 Bee Cave Road, Suite 110 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2011

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