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COMMISSIONERS' COURT AGENDA REQUEST
*PLEASE FURNISH ONE ORIGINAL AND FIVE COPIES OF THIS REQUEST AND
DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: R. Gordon Morgan OFFICE: Commissioners' Court
MEETING DATE: August 12, 1991 TIME PREFERRED:
SUBJECT: (PLEASE BE SPECIFIC} Consider establishing Supervisorv Board for
County Fire Protection and Contracting for fire fighting services for Kerr County.
EXECUTIVE SESSION REQUESTED: YES
PLEASE STATE REASON FOR EXECUTIVE SESSION
NO x
ESTIMATED LENGTH OF PRESENTATION:
PERSONNEL MATTER - NAME OF EMPLOYEE:
NAME OF PERSON ADDRESSING THE COURT: commissioner Pct. lil
Time for submitting this request for Court to assure that the matter is posted in accordance
with Article 6252-17 is as follows:
* Meetings held on second Monday: 12:00 P.M. previous Wednesday
* Meetings heltl on Thursdays: 5:00 P.M. previous Thursday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON
is
7/29/91 ~ 9:30 am
All Agenda Requests will be screened by the County Judge's Office to determine if
adequate inform atlon has been prepared for the Court's formal consideration and action
at time of Court meetings. Your cooperation will be appreciated and contribute towards
your request being addressed at the earnest opportunity. See Agenda Request
Guidelines.
KERB COUNTY FIRE SUPERVISORY BOARD
Composed of 7 members (5 citizens and 2 with fire fighting experience).
DUTIES:
Coordinate Volunteer Fire Departments' training in Kerr County
Establish minimum training requirements
Establishing and oversee an inspection policy for all V,F.D.
Establish and oversee a performance standard for V.F.D. contracting for services with
Kerr County
Coordinate and establish boundaries and policies of cooperation for and with K.C.V.F.D.
Establish standards of financial recording of all income and expenditures by V.F.D.
To advise Kerr County Commissioners' Court on ways and means of improving fire
protection to the citizens of Kerr County
SUMMARY OF DUTIES:
Oversee and coordinate training, performance and financial records keeping. These being
essential elements in contracting for services with Kerr County.
July 30, 1991
Volunteer Fire Departments
Gentlemen
In conjunction with our continued effort to determine and define needs and
services in Kerr County, we would appreciate certain information regarding the
services that you provide to residents of Kerr County. The preparation of next year's
budget has already begun and your information will greatly assist the Court.
Specifically, we are interested in last year's figures on area served, number of
households, number of miles traveled, and money expended on each budgeted item or
category as well as anticipated increase in needs per category of expense. Obviously ygy
are under no obligation to provide this information but we would appreciate any and
all information that you can provide and such information will be necessary to contract
with Kerr County.
Pursuant to Chapter 352 of the Texas Local Government Code (§352-0001(c)),
the commissioner's court of a county may contract with an incorporated volunteer fire
department that is located within the county to provide fire protection. We would be
interested, therefore, in a proposal from you to that effect, stating therein precisely
what services and equipment you can provide under such a contract. The proposal should
also include a copy of your Article of Incorporation, By-Laws, and any Amendments
thereto. Additionally, we will need a copy of any and all documents which reflect your
status as anon-profit corporation, including tax numbers and/or other identifiers.
It is hoped we can all become more conscious of our roles and responsibilities
with regard to providing fire protection for the citizens of Kerr County.
Please feel free to contact us if you have any questions or need any help.
Thanking you in advance, we remain,
Very truly yours,
Commissioners' Court
Kerr County, Texas
CONTRACT
The
Volunteer Fire Department, a Texas Non-
Profit Corporation, wishes to contract with Kerr
County to provide Fire Protection and fighting Services for the following areas:
We hereby agree to provide and operate the following equipment.
License #
License #
License #
License #
License #
License #
and shall be responsible to see that the above is in operational condition at all times to
provide these contracting services.
It is further agreed that VFD shall indemnify and hold harmless Kerr County from any
and all suits of any nature, for any and all acts, or omissions of any party, including any
and all acts of the County.
It is further agreed that in the event that services or equipment as per contract is not
being provided, then the County may cancel this contract in thirty (30) days or contract
with another entity to provide such services.
The cost of such services as per this contract shall be for one (I) year and money be
negotiated each budgetary year.
Our Internal Revenue, non-profit corp. classification is:

VOLUNTEER FIRE DEPARTMENT KERB COUNTY
BY: BY;
TITLE:
Jy
J ,
1989-90 Budget
Available monies received:
Beginning Balance
County
Donations
City
Fire District
Budgeted Expenditures:
Fire Station Expenses
Fire Suppression Expenses
Insurance $
Training (Regular) Expenses

VOLUNTEER FIRE DEPARTMENTS
Training (Special) Expenses_______________
1990-91 Budget
P, rojec,~e In ome:	
Beginning Balance	$
County	$
Donations	$
City	$
Fire District	$
Pro'ected Bud a ed Ex enditures:
Fire Station Expenses
Fire Suppression Expenses
Insurance $ _____-
$ ------
Training (Regular) Expenses ___-
Training (Special) Expenses_______________
TOTAL TOTAL
'~r7r...-k~~
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COUNTY ATTORNEY
DAVID MOTLEY
ASSISTANT COUNTY ATTORNEYS
E. BURKE HUBER, JR.
STAN REID
COUNTY ATTORNEY
COUNTY OF KERB
STATE OP TEXAS
August 2, 1991
333-B EARL GARRET!
KERRVILIR, TEXAS 10030
PAX (313) 8961300
(113) 8964330
Commissioners' Court
Kerr County, Texas
Kerr County Courthouse
700 East Main Street
Kerrville, Texas 78028
Re: County Attorney Opinion 91-5: County donations to private
entities, and specifically to volunteer fire departments
Dear Members of the Court:
You have asked that this office provide you a general opinion
regarding the County's authority to donate money to private
entities and, specifically, whether the County may donate funds to
a volunteer fire department.
Donations
General Rules on Donations:
The Texas Constitution states that the legislature shall have
no power to authorize any county, city, town, or other political
corporation or subdivision of the state to lend its credit or to
grant public money or thing of value in aid of or to any
individual, association, or corporation whatsoever, or to become a
stockholder in such corporation, association, or company. TEx.
CorrsT. art. III, § 52(a) (Vernon Supp. 1991). Article III, Section
52, and Article XI, Section 3, prohibit a county from donating
money or any other thing of value to a corporation. Op. Tex. Att'y
Gen. No. JM-1199 (1990); Tsx. CONST. art. III, § 52 (Vernon 1984);
TEx. CorrsT. art. XI, § 3 (Vernon Supp. 1991). Abroad exception to
these prohibitions was approved by the state's voters in 1987 with
the adoption of Article III, Section 52-a, which allows for the
grant or loan of public money for the "development and
diversification" of the state's economy, the reduction of
unemployment, and the promotion of "transportation or commerce" in
Texas. Brooks, Texas Practice--County and Special District Law, §
12.8 (West 1989).
The Texas Supreme Court has stated that the purpose of Article
III, Section 51, is to prevent the application of public funds for
private purposes. State v. Austin, 160 Tex. 348, 331 S.W.2d 737
(1960). Therefore, public funds may be spent only for a public
purpose. Young v. City of Houston, 756 S.W.2d 667 (Tex. App.--
Houston [1st Dist.] 1988, writ denied).
Rules Particular to Counties
A county has only such powers expressly conferred upon it by
the constitution and the legislature, as well as the implied powers
necessary to exercise its express powers. Canales v. Laughlin, 214
S.W.2d 451 (Tex. 1948). This means that the County may not
contribute its funds, even to another local government, unless it
is in pursuit of an authorized activity. Brooks, Texas Practice--
County and Special District Law, § 12.13 (West 1989) (and cases
cited therein).
Gratuitous or unconditional grants are clearly prohibited.
Op. Tex. Att'y Gen. No. M-1189 (1978); Brooks, Texas Practice--
County and Special District Law, § 12.8 (West 1989). This
prohibition applies even if such grants are to another governmental
entity. Road District No. 4. Shelby County v. Allred, 123 Tex. 77,
68 S.W.2d 164 (Tex. 1934). It is therefore essential that the
County receive an adequate quid pro quo in return for the public
funds. Id. That is, the pursuit of a legitimate governmental
objective. Id. In addition, adequate controls, contractual or
otherwise, must govern a transaction between a county and another
entity to insure that the public purpose is accomplished. Key v.
Commissioners Court of Marion County, 727 S.W.2d 667 (Tex. App.--
Texarkana 1987, no writ); Op. Tex. Att'y Gen. No. JM-1209 (1990).
Checklist for Expenditures:
Considering the above, the Court must analyze its outside
expenditures as follows:
1. Is there specific constitutional or statutory
authorization for the expenditure?
If not:
2. Is the expenditure for a constitutionally or statutorily
authorized county function or purpose or is it incidental and
necessary to such a purpose?
If neither 1 nor 2 can be answered in the affirmative, then
the expenditure cannot be made. If either 1 or 2 can be
answered in the affirmative, then:
2
3. Is the County receiving an adequate return on its
expenditure, (i.e., is it getting what it's paying for)?:
If the answer is "no", then the funds cannot be appropriated.
If "yes", then:
4. Are there adequate controls, contractual or otherwise,
governing the transaction, which ensure that the authorized
public purpose will be accomplished.
If not, the funds cannot be appropriated.
There are other factors which can come into play when
considering whether or not to contract out governmental functions.
One fundamental rule is that discretionary governmental powers
cannot be contracted out. Those factors, however, exceed the scope
of this brief.
Volunteer Fire Departments
As to volunteer fire departments, the questions are answered
as follows:
Questions 1 and 2:
Local Government Code Section 352.001 provides that a county
commissioners' court "may furnish fire protection or fire fighting
equipment...to the residents of the county...who live outside
municipalities." TEx. Loc. Gov. CODE § 352.001 (Vernon 1988); Op.
Tex. Att'y Gen. No. JM-1209 (1990). In addition, the legislature
has specifically authorized counties to enter into contracts with
incorporated volunteer fire departments for the provision of fire
fighting services in the county. TEx. Loc. Gov. CODE § 352.001(c)
(Vernon 1988). The provision of fire protection is, therefore, an
authorized purpose of county government.
Question 3•
The question of whether the County is getting (or will get) an
adequate return on its expenditure is one for the Court, in the
sound exercise of its discretion, to determine. As long as the
decision is not arbitrary or capricious, in abuse of the Court's
discretion, or based on fraud, its decision on this point will
stand. It is here that questions of exposure to liability should
be considered.
Question 4•
The question of whether adequate controls exist to ensure that
the public funds are being spent for fire protection is also a
question of fact for the Court. As I understand the present
arrangement, there is no contract, and appropriations to the
volunteer fire departments are "expended" by submission of bills to
the auditor for approval. I assume that the volunteer fire
departments understand and agree that the county auditor may review
their records at any time. Under this scenario, it would seem that
the County may have met the minimum requirement of "adequate"
control of the expenditures, in that the auditor can readily see
exactly what the public funds are being spent on and can either
approve or disapprove the requests on a case-by-case basis. A
better practice would be to submit the bills to the Court.
The best practice, however, would be to contract with the
various departments to provide the service. In that way, the
County could require appropriate training, certification, reporting
procedures, etc., to ensure that the public funds are being
properly applied by qualified individuals.
Workers' Compensation to Volunteer Firefighters
The Texas statutes regarding workers' compensation
specifically authorize a county to provide workers' compensation
for volunteer firefighters. Tex. Rev. Civ. STAT. art. 3809h(b)(2)
(Vernon Supp. 1991). The county, however, is not required to
provide it. Id.
If the County desires to provide such coverage, it would be
best to include its provision as a term under the contract with the
volunteer fire department.
Truly yours,
David Motley,
/hh
County Attorney
4
ORD~2 NO. 20473
CONSIDERATION OF ESTABLISHING
SUPERVISORY EOARD FOR COUNTY
FIRE PR(YPECTION AND CONTRACPING
FOR FIRE FIGHTII3G SERVICES FOR
KERB COUNTY
August 12, 1991
Vol S, Page 363