Notes from the Peanut Gallery

Monday, November 12, 2007

Letter to Hon. John S. Fritter, Jr. from the BVFD

Brackettville Volunteer Fire Department, Inc.
PO Box 898
Brackettville, Texas 78832

November 11, 2007

Honorable John S. Fritter, Jr.
Kinney County Judge
PO Box 348
Brackettville, Texas 78832

RE: Information regarding fire protection services

Dear Judge Fritter,

Many questions were raised during the November 6, 2007 Special Commissioners Court meeting concerning both paid and volunteer fire departments (VFD). In an effort to provide information regarding some of these questions we have researched the Texas Statutes and Attorney General Opinions. The following is our report on the information we have found to date.

Ray Goad, Executive Director, Commission on Fire Protection of Personnel Standards and Education, requested an opinion in 1990 from the Honorable Jim Mattox, Attorney General (AG), concerning VFD(s). 1 Goad wanted to know if VFD personnel were subject to the requirements of Government Code Chap. 416.

Mattox affirmed the general authority of the Commission on Fire Protection (CFP) concerning Chap. 416. The statute allowed the CFP to establish minimum educational, training, physical, mental and moral standards for fire protection personal. It also defined “fire protection personnel” as permanent, fully paid, full-time fire department employees who were assigned specific duties. These duties included but were not limited to fire suppression, inspection, training, education, administration and arson investigation.

However Mattox stated no statutory authorization could be found for the establishment of a VFD as a department of local government. Mattox assumed that “Volunteer Fire Departments” that were not “departments of local government” were not “fire departments” (FD) as defined by Chap. 416. Mattox summarized VFD(s) that were not departments of local government were not subject to the statutory requirements.

During the following 1991 legislative session, Chap. 416 underwent massive revisions. 2 It was renumbered 419 and the CFP became the Texas Commission on Fire Protection (TCFP). The second definition of the new code states a “volunteer fire fighter” or “volunteer fire chief” cannot be a person who was employed full-time in the fire service. We believe this essentially prevents the combination paid/volunteer department proposed by EMS Director Bruce Hudgens. We also believe other revisions to the code support the opinion that VFD personnel are not subject to its requirements.

In a 1993 opinion, the Honorable Dan Morales stated VFD(s) were neither “political subdivisions” nor “departments of local government”. 3 In 2003, Section 78.101 of the Civil Practice & Remedies Code clearly defined a “Volunteer Fire Department” as a nonprofit organization that is operated by its members and exempt from state sales and franchise taxes. 4 The BVFD is a nonprofit organization, operated by its members and exempt from state tax therefore it cannot be, nor can it become, a department of local government.

These statutes and opinions appear to indicate KC may form a FD. However, this proposed FD’s “fire protection personnel” would be paid and would have to meet the requirements of Chap. 419 as well as those set forth by the TCFP. These requirements and standards would include those previously mentioned in addition to biannual inspections by the commission, reporting requirements, equipment standards and numerous others. We doubt the $15,000 KC has currently budgeted for fire protection would be sufficient to form the proposed FD. We strongly encourage you to confirm our interpretations by contacting Gary L. Warren, Sr., Executive Director TCFP at (512) 936-3812.

It has also been mentioned the City of Brackettville could donate the fire trucks and/or other Brackettville Volunteer Fire Department (BVFD) equipment to Kinney County (KC). Provided the city could do so, it is doubtful the proposed FD could use the equipment. The use of obsolete fire fighting equipment, which is authorized by the legislature, is a privilege of VFD(s) that often must make do with any available equipment. The personal protective equipment (PPE) and self-contained breathing apparatus (SCBA) currently in the possession of BVFD and/or its members, in addition to any and all other equipment obtained through grants, by virtue of our nonprofit corporation status, are the property of BVFD.

There have been questions raised concerning whether or not BVFD must be exempt from Federal income tax. Exemption from Federal income tax is a requirement for “Nonprofit fire departments” as defined in section 78.051 of the Civil Practice & Remedies Code. 5 This section concerns “marine fire-fighting services” and does not appear to be applicable. If there is any doubt, we respectfully suggest you request an opinion from Honorable Greg Abbott, AG.

The question has been raised whether or not KC can legally provide funds to the BVFD. The Honorable John Cornyn concluded in 1993 a county commissioners court could not purchase equipment for or pay a VFD without a contract. 6 A BVFD member advised KC Commissioners Court of this requirement in April 2007. Chapter 352 of the Local Government Code authorizes KC Commissioners Court to contract with the BVFD to provide fire protection services to the unincorporated areas of the county. 7 Therefore KC can legally fund and/or purchase equipment for BVFD provided there is a contract.

Concerns have been raised regarding the City of Brackettville’s ability to fund the BVFD. However the city is not taking advantage of every means available to generate funding for the department. For example, the city is authorized under Section 13.143 of the Water Code to solicit voluntary contributions on utility bills for the benefit of the BVFD. 8 The city may also recover the lesser of the expense of administrating the program or 5% of the collections. We estimate an average donation of 2 dollars per utility account would nearly match the city’s current budgeted amount of $10,000.

Many issues have been raised concerning equipment and training. We have also enclosed a picture of approximately half of our currently active volunteers. Please note all but the exception of one Reserve Fire Fighter are in structural fire fighting PPE. All BVFD members received training from the department. The majority of our members have also attended TCFP approved fire schools although it is not a requirement of the State of Texas or the BVFD. One of the volunteers pictured has attended the annual fire school at Texas A&M 12 out of the last 14 years. Another volunteer pictured has over 27 years of service in the BVFD.

Several city and county elected officials have voiced concerns regarding local fire protection. We have found elected officials have the option of making a personal contribution to our community. Both county commissioners and city council members may legally hold dual status as volunteer fire fighters. 9

We hope this information proves useful to KC Commissioners Court during its upcoming decisions regarding fire protection for our county. We encourage the court to request any information concerning the BVFD from either Chief Leo Luna or Secretary/Treasurer Wes Robinson. We also wish to notify you the BVFD is currently drafting a contract for county fire protection and expects to present it to the court within the next 30 days.


________________________ ________________________
Leo P. Luna Joe V. Williams
Chief BVFD Assistant Chief BVFD

________________________ ________________________
Joe P. Luna D. Williams
Captain BVFD Lieutenant BVFD

Wes Robinson
Secretary/Treasurer BVFD

Cc: Kinney County Commissioners Court
Brackettville City Council
The Brackett News

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