Untitled Texas Attorney General Opinion ( 1987 )

April 20. 1987
lionorableJack Skeen, Jr. Opinion No. JM-681
Criminal District Attorney
Smith County Courthouse Re: Determination of emergency
Tyler, Texas 75702 service fee for a 9-l-l comunica-
tion district under article 1432e,
V.T.C.S.
Dear Mr. Skeen:
You seek our opinion concerning the determination of the 9-l-l
emergency service fee for an emergency communication district created
pursuant to article 1432e. V,.T.C.S. The district was approved by the
voters of Smith County in 1986. You ask three questions:
1. If the principal service supplier charges
different base rates for the same category of
service in different participating jurisdictions
within the district, then which base rate is
determinative .for the purpose of applying the
emergency serrrice fee uniformly within all
participating jurisdictions within the district?
2. If the principal service supplier charges
different base rates for single party aad multi-
party residential service, then which base rate is
determinative for the purpose of applying the
emergency service fee uniformly within all
participating jurisdictions within the district?
3. Does article 1432e require that each
service user within a participating jurisdiction
be provided with 9-l-l emergency service regard-
less of the cost or ocher impracticality of
providing such service to the particular service
user (assuming that the emergency service fee is
not charged to the particular service user until
such service is actually available)?
Article 1432e was enacted for the purposes of establishing the
number 9-l-l as the primary emergency telephone number for certain
local government units and encouraging these units of government to
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Honorable Jack Skeen, Jr. - Page 2 (JM-681)
develop and improve emergeucy comnmication procedures and facilities.
V.T.C.S. art. 1432e, 02. Xc authorizes the creation of an emergency
communication district to carry out the provisions of the act. Id.
55. Voter approval must be secured at a confirmation and fee elect=
before the district may exercise its public and essential governmental
functions. -Id. SPll, 12.
Section 11 of the act describes the procedures for creating the
district. The board of managers of au emergency communication
district is required to call an election for the purposes of securiug
voter approval of the creation of the district and to authorize the
district to charge and collect a 9-l-l emergency service fee. Id.
Sll(c). The section also provides the method by which the emerge=
service fee is calculated:
The board may charge a 9-l-l emergency service
fee at a rate not to exceed three percent of the
base rate of the principal service supplier per
service year per month in the participating juris-
dictions. The jurisdiction of a county is the
unincorporated. area of the county. The 9-l-l
emergency service fee must have uniform applica-
cion and must be imposed within all participating
jurisdictions. (Emphasis added).
Id. 911(b). The underscored phrase "per service year" will be
discussed later iu this opinion. The final sentence of section 11(b)
is the source of your first two inquiries.
The first question concerns a situation in which the telephone
cowpauy which is designated the principal service supplier to the
district charges different base rates to residential customers in
different participating jurisdictions in the district who receive the
same level of service. The second question concerns a situation in
which the principal service supplier charges different base rates to
single-party aud multiple-party residential customers within the
district. Both may be treated together.
Your first two questions essentially ask the same question --
specifically, whether the 9-l-l emergency service fee is intended
to be (1) a fixed dollar amount to be charged to all residential
telephone customers in the district regardless of the base rate they
are charged. or (2) a uniform percentage rate applied to the various
base rates charged by the principal service supplier to residential
telephone customers. We believe the second alternative accurately
reflects the intent of the legislature.
In our opinion. the language of section 11(b) requiring uniform
application of the emergency service fee throughout the district weans
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Eonorable Jack Skeen, Jr. - Page 3 (JM-681)
that the percentage rate adopted by the board of managers must be
uniformly applied to whatever base rate is charged co the service user
by the principal service supplier. Article 1432e does not require a
uniform base rate for all residential subscribers to telephone service
within the district. Rather, it requires the emergency service fee to
have uniform application. The only component of the emergency service
fee over which the board is expressly granted the authority to fix is
the percentage rate upon which the fee is calculated. It follows that
the object of the language in section 11(b) is this percentage race.
It is apparent from the language of article 1432e that the
legislature anticipated the possibility that different base rates
would be charged to subscribers in different jurisdictions of the
district for the same level of service. The act defines "base rate"
in the following terms:
'Base rate' means the rate or rates billed by a
service supplier, as stated in the service
supplier's charges
regulatory authority?~ede~~es% I%%%~
supplier's recurring charges for local exchange
.accesslines/trunks or their equivalent, exclusive
of all taxes. fees, license costs, or similar
charges. (Emphasis added).
V.T.C.S. art. 1432e. 53(21). This definition acknowledges that the
authority to regulate base rates is granted to agencies other than the
emergency cowauuication district. It also recognizes that the
appropriate regulatory authority 'may approve a number of different
rates for local exchange access lines or trunks within the district.
Our construction of section 11(b) is supported by the legislative
histories of article 1432e and two virtually identical statutes.
articles 1432~ and 1432d. V.T.C.S. See Jessen Associates v. Bullock,
531 S.W.Zd 593 (Tex. 1975) (in conszing statutes. it is proper to
look to construction given other acts pertaining to the same subject).
Article 1432~. V.T.C.S.. was enacted in 1983 and authorizes the
creation of a 9-l-l comunication district in counties having a
population of more than 2 million according to the most recent federal
census. See Acts 1983, 68th Leg.. ch. 97. at 465; V.T.C.S. art.
1432~. 14(a). Section 10(b) of article 1432~ grants the board of
managers of the district the authority 'to impose a fee for 9-l-l
emergency service:
The board, when so authorized by a majority of the
votes cast in the election and by a majority vote
of the governing body of each public agency to
become a participating jurisdiction, may charge a
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Honorable Jack Skeen, Jr. - Page 4 (JM-681)
9-l-l emergency service fee at a rate not to exceed
two percent of the base rate of the principal
service supplier per service user per month in the
participating jurisdictions. For the purposes of
this vote of the governing body of each public
agency, the jurisdiction of the county includes all
unincorporated areas of the county. The 9-l-l
emergency semice fee must have uniform applicstion
and must be imposed within all participating juris-
dictions. (Emphasis added).
Article 1432d. V.T.C.S.. was enacted during the second called
session of the 68th Legislature in 1984 and authorizes the creation of
an emergency comaunication district in counties with a population of
more than 860,000 according to the last federal census. Acts 1984,
68th Leg., 2nd C.S., ch. 7. at 22; V.T.C.S. art. 1432d. 04. On its
enactment, section 11(b) of that act contained the following language:
The board may charge a 9-l-l emergency service fee
at a rate not to exceed three percent of the base
rate of the principal service supplier Per service
year per month in the participating jurisdictions.
The 9-l-l emergency service fee must have uniform
application and must be imposed within all par-
ticipating jurisdictions. (Emphasis added).
The underscored phrase "per service year" was corrected in 1985 co
read "per service user." Acts 1985. 69th Leg., ch. 820, 16. at 2878
(effective June 15. 1985). Before the erroneous language was
corrected by the legislature, however, the bill which contained
article 1432e was passed by both houses of the legislature and signed
by the governor containing the same defect. Acts 1985. 69th Leg., ch.
288. at 1331 (effective June 6, 1985).
We note the parallel provisions of articles 1432~ and 1432d
because the legislative histories of the two earlier-enacted statutes
are relevant to our construction of article 1432e. See Jessen Asso-
ciates v. Bullock, aupta. With the exception of theprovisions con-
cerning the appointment of board members, article 1432e was intended
to be virtually identical in language and effect to article 1432d,
which in turn was intended to mirror article 1432~ with minor changes.
See Testimony of Mr. Russell S. Rau on Tex. S. B. No. 750 before House
G. on Urban Affairs, 68th Leg., public hearing (May 8, 1985) (tape
recording available from House Staff Services); Testimony of Sen. Sugh
Parmer on Tex. S.B. No. 17 before Senate Come. on Intergovernmental
Affairs, 68th Leg., 2nd C-S.. public hearing (June 25, 1984) (tape
recording available from Senate Reproduction).
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Honorable Jack Skeen. Jr. - Page 5 (JM-681)
Testifying before the committees of the Senate and House of
Representatives which considered the legislation which eventually
became article 1432~. the sponsors of the legislation and representa-
tives of telephone service suppliers said that the emergency service
fee percentage rate adopted by the board of managers would be imposed
equally on all subscribers of telephone services in the district.
Testimony of Son. Chet Brooks and Hr. Clark B. Payne on Tex. S. B. No.
606 before Seuate Cowm. on Intergovernmental Affairs, 68th Leg., pub-
lic hearing (March 17. 1983) (tape recording available from Senate
Reproduction); Testimony of Rep. Gene Green and Mr. Ken Queureaux on
Tex. S. B. No. 606 before Eouse Cowa. on Urban Affairs, 68th Leg.,
public hearing (April 19, 1983) (tape recording available from House
Staff Services).
The parallel provisions of articles 1432~ and 1432d (as amended
in 1985) also reveal the erroneous transcription of the phrase "per
service yeat" in section 11(b) of article 1432e. Section 11(b) should
read "per service user." See Patterson v. City of Dallas, 355 S.W.2d
838 (Tex. Civ. App. - Dallas 1961, writ ref'd n.r.e.). appeal dism'd,
372 U.S. 251 (1963) (words or phrases in a statute may be supplied,
omitted, or transposed in order to arrive at legislative intentj:
Rogers v. Dallas Railway and Terminal Co., 214 S.WT2d 160 (Tex. Civ;
APP. - Da:llas 1948). aff'd. 218 S.W.,2d 456 (Tex. 1949) (same). See
also Chambers v. iiate,. 25 Tex. 307 (1860) (phrase in statute
vision substituted to carry out legislative intent); Davis v.
=, 225 S.W. 532 (Tex. Grim. App. 1920) (words way be disregarded
or eliminated to give effect to legislative intent).. The defiuition
of "service user" ic all three statutes is "any person or entity who
is provided local exchange access lines/trunks in the district."
V.T.C.S. arts. 1432~. 63(17); 1432d. 53(17); 1432e. §3(17). The
distinction between persons and entities in the definition of "service
user" would be meaningless if the legislature intended the base rates
for all telephone subscribers to be the same. Section 11(b) of
article 1432e. then, mandates that the emergency service fee per-
centage rate be applied uniformly to all service users. individuals
and entities alike. It requires the emergency service fee to be
charged and collected on an individual basis according to the base
rate charged to each customer.
It is also clear that the legislature did not intend the
emergency service fee to be a fixed dollar amount for all service
users. Section 14(a) scares that the "9-l-l emergency service fee may
be imposed only on the base rate charges or their equivalent," and
"may not be imposed on more than 100 local exchange access lines/
trunks or their equivalent per entity per location." V.T.C.S. art.
1432e. 514(a). Thus. the sum owed by multiple-line customers to the
district for the emergency service fee is dependent upon the number of
access lines or trunks the customer receives, up co 100 access lines
or trunks.
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Honorable Jack Skeen. Jr. - Page 6 (~~-681)
Accordingly, we conclude that article 1432e. section 11(b),
authorizes the board of managers of an emergency comunicarion
district to impose a 9-l-l emergency service fee of up to three
percent of the base rate charged to each customer of the principal
service supplier, even where the principal service supplier charges
different base rates .to customers of different participating juris-
dictions of the district for the same level of service or where
different base rates are charged to single-party and multiple-party
customers. The percentage rate adopted by the board from which the
emergency service fee is calculated must be unifonely applied
throughout the district, regardless of the base rate charged by the
service supplier.
Rephrased, your third question is whether 9-l-l emergency service
may be denied to a telephone service customer in the district when
providing such service is deemed too costly or burdensome to the
district and the customer is not charged the monthly emergency service
fee. In view of the terms and purpose of article 1432e. we believe
the answer to this question is "no."
Section 8(a) of article 1432e decrees that the emergency communi-
cation district "shall provide 9-l-l service to all participating
jurisdictions. . . ." Participating jurisdictions are "those public
agencies that vote to be a part of a district." V.T.C.S. art. 1432e,
53(3). A public agency is "any city or county that provides or has
authority co provide fire-fighting, law enforcemenr. ambulance,
medical. or other emergency services." Id. 13(2). The term "9-l-l
service" is defined as a "telecommnicatio~service that will allow a
user of the public telephone system to reach a public safety answering
point by dialing the digits 9-l-l." -Id. 93(l) (emphasis added).
The purpose of article 1432e is provided in section 2 of the act:
It is the purpose of this Act to establish the
number 9-l-l as the primary emergency telephone
number for use by certain local governmoots in
this state and co encourage units of local govern-
ment and combinations of those units of local
govermont to develop and improve emergency com-
munication procedures and facilities in a manner
that will make possible the quick response to any
person calling the telephone number 9-l-l seeking
police, fire, medical, rescue, and other emergency
services. To this purpose the legislature finds
and declares:
(1) it is in the public interest to shorten
the time required for a citizen to request and
receive emergency aid;
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Honorable Jack Skeen. Jr. - Page 7 (JM-681)
(2) there exist thousands uf different
emergency telephone numbers throughout the state,
and telephone exchange boundaries and central
office service areas do not necessarily correspond
to public safety and political boundaries;
(3) a dominant part of the state's population
is located in rapidly expabding metropolitan areas
that generally cross the boundary lines of local
jurisdictions and often extend into two or more
counties; and
(4) provision of a single, primary three-digit
emergency number through which emergency services
can be quickly and efficiently obtained would
provide a significant coatribution to law enforce-
ment and other public safety efforts by making it
less difficult to notify public safety personnel
guickly. (Emphasis added).
It is clear from both the ‘statement of purpose and the language of
article 14320 that 9-l-l service is intended to be available to any
person using any telephone in the district in time of emergency. The
availability of 9-l-l service is not limited to persons or entities
that receive local exchange access lines from the principal service
supplier or that pay the monthly emergency service fee. It cannot be
seriously argued.-then, that persons who. are not charged the monthly
fee may, in the discretion of the board of managers, be excluded from
the 9-l-l service system. See also Testimony on Tex. S. B. No. 606
before Senate Comm. on Intergovernmental Affairs, supra (9-l-l service
will be available to transients and to persons calling from any phone
in the district); Testimony on Tex. S. B. No. 606 before House Come.
on Urban Affairs, supta.
In any case, the district may not, under the circumstances,
decline to charge the emergency service fee to persons living in the
district who receive local exchange access lines from the principal
service supplier. The emergency communication district has only that
authority which is clearly granted by the legislature. See Attorney
General Opinion JM-674 (1987) and authorities cited thereK Section
11(b) of article 1432e states that the emergency service fee must be
imposed in all jurisdictions. Section ,14(a) states that the fee
"shall be added to and shall be stated separately in the billing by
the service supplier to the service user." A service user is "any
person or entity that is provided local exchange access lines/trunks
in the district." V.T.C.S. art. 1432e. §3(17).
Finally, we believe that any attempt to limit the availability of
9-l-l service in the jurisdictions which voted to become part of the
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Eouorable Jack Skeen, Jr. - Page 8 (JM-681)
district would defeat the purpose for establishing an emergency
coamnication district in the first place. The district is intended
to be used by persons requiring emergency assistance as a conduit for
rapid communication to the participating jurisdictions. It is
intended to assist these jurisdictions in providing more efficient and
timely emergency services, and to assist in coordinating the services
of different emergency service units whose jurisdictions may conflict
or overlap. To permit* the district to select which persons (or
telephones) will be provided access to the 9-l-l system would invite
confusion and disorder, a result which the legislature clearly did not
intend. Accordingly, you are advised that the emergency communication
district may not deny 9-l-l emergency service to a person receiving
local telephone exchange access lines in the district on the basis of
excessive cost or burden to the district.
SUMMARY
Article 1432e. section 11(b), V.T.C.S.,
authorizes the board of managers of an emergency
communication district to impose a 9-l-l emergency
service fee of up to three percent of the base
rate charged to each customer of the principal
service supplier, even where the principal service
supplier charges different base rates to rustomers
of different participating jurisdictions of the
district for the same level of service or where
different base rates are charged to single-party
and multiple-party customers. The percentage rate
adopted by the board from which the emergency
service fee is calculated must be uniformly
applied throughout the district, regardless of the
base rate charged by the service supplier.
An emergency communication district may not
deny 9-l-l emergency service to a person receiving
local telephone exchange access lines in the
district on the basis of excessive cost or burden
to the district.
J-b
Very ruly yours,
I
JIM HATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assiatant Attorney General
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I
Eonorable Jack Skeen, Jr. - Page 9 (JM-681)
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLN
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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