~ ~ ~ 7~ 709/ • a 8'
1~
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS
REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: Commissioner Williams OFFICE: County Commissioner
MEETING DATE: July 27, 2009 TIME PREFERRED:
SUBJECT: Consider, discuss and take appropriate action to afford public access to Kerr
County wells at Hill Country Youth Exhibit Center (Ag Barn) and little league fields and
associated issues.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Comm. Oehler
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 PM previous Tuesday
THIS REQUEST RECEIVED BY:
THIS RQUEST RECEIVED ON:
@, .M.
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information 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 earliest opportunity. See Agenda Request Rules Adopted by Commissioners'
Court.
~,SI+TE ~F
w ~ ~
x
H
KERR COUNTY ATTORNEY
REX EMERSON
COUNTY COURTHOUSE, SUITE BA-lO3 7OO MAIN STREET KERRVILLE, TEXAS 78028
July 17, 2009
Bruce Oehler
County Commissioner Precinct 4
RE: Whether volunteer fire departments may haul water to residents whose wells have
run dry.
Dear Bruce:
It is my understanding that various volunteer fire departments have asked whether
they can supply and haul water to numerous residences where the wells have gone dry. I
have been unable to locate any opinions or statutes that address this issue. This opinion is
based on VI~Ds being incorporated entities that accept both county and public funds to
provide fire' protection in unincorporated areas of the county.
Counties were given explicit authority to offer fire prevention and fire-fighting
services to the residents of the county who live outside municipalities in Texas Local
Government Code Chapter 352. The county may provide fire protection in one of two
ways. The county may provide fire protection services itself or may contract with an
incorporated VFD to provide the services. Kerr County contracts with multiple VFDs
wherein the relationship between VFD and county is that of independent contractor.
A county commissioners court may exercise only those powers that the state
constitution and statutes confer upon it, either explicitly or implicitly. See Canales v.
Laughlin, 214 S.W.2d 451, 453(Tex.1948); City of San Antonio v. City of Boerne,
111 S.W.3d 22, 28(Tex.2003) Moreover, where as in Chapter 352, a statutory power is
granted and the method of its exercise is prescribed, the prescribed method excludes all
others and must be followed. See Tex.Att'y Gen.Op.Nos. JC-0011(1999), DM-
424(1996). The county's interaction with the VFD to provide fire protection is limited to
a contractual basis.
The Texas Constitution prohibits a county from making a gratuitous contribution:
any payment(monetary or in-kind) must serve a public purpose, must be in exchange for
a quid pro quo, and must be accompanied by controls sufficient to ensure that the public
purpose is accomplished. See Tex. Const. art. III, Sec. 52(a)
MAIN NUMBER (830) 792-2220 HOT CHECKS (830) 792-2221 Fax (830) 792-2228
Website: http://www.co.kerr.tx.us/attorney
r
County water is addressed in Local Government Code chapters 561, 562 and 563.
Chapter 562 specifically addresses the sale of surplus water. "County surplus water" is
defined as water that a county has acquired from an underground source for the county's
water supply and that is not needed for county purposes," Chapter 562 establishes
procedures to sell the surplus water to limited entities. There does not appear to be any
statutory authority to give the water away. In addition, the supply of water to multiple
users may invoke Public Utility issues.
Volunteer Fire Departments have special status and various privileges and
exemptions based on fire prevention, fighting fires, and providing emergency medical
services. I could not find any statutory authority authorizing them to engage in domestic
water supply unrelated to fire suppression. I consulted with David Brooks and he
concurs.
The VFDs are separate legal entities than the County and I am not legal counsel
for them. That being said, I can foresee multiple issues associated with the VFDs
delivering water to residences:
1) Potential loss of liability protection because acting outside statutory mandate.
2) Potential draw-down of VFD well dedicated to fire protection thereby
reducing fire-fighting capabilities. On July 16~' the Governor declared a
disaster due to wildfires in 165 counties including Kerr.
3) Potential liability for water related issues.
4) Need to establish specific procedures prior to initiating service.
5) Need to ensure that public assets are not being used for the nonemergency
benefit of an individual without due compensation.
6) Need to carefully follow said procedures to avoid potential misapplication of
fiduciary property liability.
7) How do you determine who qualifies for the service? What about the resident
that never dug a well and has been hauling water?
8) Are you going to restrict water hauling to domestic use or are you going to
also haul for livestock?
9) How does the non-firefighting function affect the workers compensation
coverage?
10) How does this function relate to the corporate charter filed with the
Secretary of State and VFD's non-profit status?
Government Code Chapter 418 is cited as the Texas Disaster Act. Section
418.008 authorizes the local government to declare a local disaster. Section 418.002
states that the purpose of the chapter is to (1) reduce vulnerability of people and
communities of this state to damage, injury, and loss of life and property resulting from
natural or man-made catastrophes; (2) provide for prompt and efficient rescue, care, and
treatment of persons victimized or threatened by disaster;(5) authorize and provide for
cooperation in disaster mitigation, preparedness, response, and recovery. "Disaster" is
defined in Section 418.004(1) as the occurrence or imminent threat of widespread or
severe damage, injury, or loss of life or property resulting from any natural or man-made
cause including drought. Under Section 418.109 a local government entity(county) or

organized volunteer group(VFD) may provide mutual aid assistance on request of another
local government entity or organized volunteer group.
SUMMARY:
It is''my opinion that incorporating the domestic delivery of water into the VFD's
duties without a declaration of disaster is fraught with potential legal issues.
1 f
F~`° ~~°`.~--~
._ -~' kex Emerson