Combined effort leads to repeal of statute that put ESDs under the thumb of City of San Antonio

By Art Martinez de Vara, June 2023

Bexar County’s Emergency Services Districts had burdens that no other ESD in the State had to bear.  It needed the permission of the City of San Antonio in order to incur more than $20,000.00 in debt. It also had to follow City of San Antonio specifications on fire apparatus and station design.  All of this despite the fact that none of the ESDs serviced any part of the City of San Antonio. 

Background

In 2001, before any ESDs had been created in Bexar County, San Antonio passed legislation mandating restrictions on ESDs in order to minimize the cost of future annexations (Texas Health and Safety Code Sec. 774.014(h)). When a municipality annexes into an ESD, it must assume a pro-rata share of the debt previously incurred by that ESD.  By controlling station design, apparatus specifications and a veto on debts over $20,000.00, San Antonio was able to reduce the control of future annexations, even at the expense of reduced service levels in its extra-territorial jurisdiction (ETJ).  As a result of these restrictions, Bexar County ESDs were hamstrung in their ability to grow and provide service levels.  Some ESDs worked with the City, negotiating each purchase.  Others formed 501c3 nonprofit organizations to own stations and equipment to sidestep the statutory restrictions.  Both of these strategies had their downsides. 

Annexation Reform and Litigation

After years of grassroots activism, the Texas Legislature passed sweeping annexation reform in 2007.  Known as SB 6, the legislation was designed to end involuntary annexations and empower Texans who lived within the ETJ of a municipality. San Antonio sought to continue annexations and hired consultants to develop a strategy to continue annexations.  Among their recommendations was to target properties who had entered into non-development agreements. In 2019, Bexar County ESD 5 and 2 sued the City of San Antonio over what they believe are unlawful annexations into their districts.  In response, San Antonio utilized their leverage granted by Sec. 775.014(h) and refused to approve any spending cap requests. 

The Montgomery Road Station

As with many rapidly growing areas of Texas, new subdivisions are springing up in far west Bexar County.  As plats are approved by the County, local ESDs begin planning for growth. In 2017, Bexar County ESD No. 5 secured a donation of land from Bexar County on Montgomery Road near Highway 90, in the center of the planned developments.  Complying with Sec. 775.014(h), the ESD submitted its design and debt request to San Antonio.  In response, San Antonio denied the request while litigation was pending against them. In the four years that have passed the estimated cost of construction has increased by $1.8 million dollars. In the four years of delay approximately 17,000 residents have moved into the area and it currently has over 20-minute response time.

St. Hedwig Station

Bexar County ESD No. 12 planned a station in the City of St. Hedwig, which is a rural municipality near San Antonio in far east Bexar County. The language of Sec. 775.014(h), granted San Antonio authority, not only over stations and equipment in unincorporated Bexar County, but also within the suburban cities within Bexar County. Plans and debt request were filed with San Antonio for the St. Hedwig station, beginning a lengthy process that did not involve the City of St. Hedwig.

Bexar County ESD Association

Repealing statutes affecting Bexar County ESDs had been discussed for years. But the statute’s use as a weapon in litigation and San Antonio’s refusal to approve any station for Bexar 5 despite a clear need brought the issue to a head.

In November 2022, ESD 5 called for a meeting of all Bexar County ESDs on the possibility of forming an association to seek repeal of 774.014(h) and other matters. Up to this point, there was no collective representation for Bexar County ESDs, and each had independent dealings with the City. The association formed and 11 of the 13 ESDs initially joined. Bexar County Emergency Services District Association hired the Martinez de Vara Law Firm as its governmental affairs representative to push for repeal and to work with SAFE-D on the statewide legislative agenda.

Legislation

At the beginning of 88th Legislature, Art Martinez de Vara drafted proposed legislation and met with the members of the Bexar County delegation in Austin. Frankly, we were very late to the game.

Seeking bipartisan support, we secured two offices to file a bill draft request. The legislation was filed as HB 2663 by Rep. Philip Cortez and SB 1794 by Sen. José Menéndez and Sen. Donna Campbell.

Bexar County Commissioners passed a resolution in support of repealing the restrictions. This spurred media attention. A San Antonio assistant city manager told a local television station that if ESD 5 wanted to build their station, they could drop their
litigation against the City.

BCESD5 utilized this admission to galvanize support locally. San Antonio then called for a sit-down, at which they proposed softening the restrictions and providing a deadline for approvals. However, they still refused to grant ESD 5 permission so long as
litigation was pending.

BCESDA’s response was “no deal.” All parties met again, this time in Bexar County. BCESDA proposed a system under which ESDs could gain automatic approval by notifying the City of its station designs, equipment purchases and debt information, and reciprocally the City would notify ESDs of its proposed annexations.

San Antonio did not agree. Instead, the city unilaterally passed an ordinance implementing their initial proposed lighter restrictions.
At the Senate Local Government Committee hearing, the City presented these lighter restrictions as sufficiently addressing the problem. However, the BCESDA argued that San Antonio should not have authority over public safety in areas that it does not represent.

In support of this argument, the various ESD commissioners presented a litany of different issues facing their respective districts. The bill passed out of committee unanimously, and out of the Senate unanimously. In the House, the bill’s only opposition came from a handful of Freedom Caucus members who told us they always vote no on bills that lift spending restrictions on government. The bill passed the House and goes into effect March of 2024.

Lessons Learned.

Solidarity can win the day.  For nearly 20 years, Bexar County ESDs managed these restrictions as individual districts with varying degrees of success.  After unifying, they were able to utilize their collective political support to outright repeal the restrictions that had hampered them for so many years. 

It is imperative for ESDs to actively participate in the legislative process.  The Texas Legislature can solve problems and create them, so ESDs must actively monitor and participate in the legislative process.

Focus on public safety.

While San Antonio focused on litigation issues, the need to control costs for future annexations and that their reduced restrictions were reasonable, we focused on the need for unencumbered public safety.  In the end, public safety won the day.

Art Martinez de Vara is an attorney, former ESD Commissioner and former SAFE-D board member.  He can be reached at art@mdv-law.com.

You can read more media coverage of our efforts to pass SB 1794 below:

News 4 San Antonio, June 5, 2023: New law allows Emergency Service District to build fire stations without city’s permission

San Antonio Express-News. June 5, 2023: State strips City of San Antonio of its authority over emergency services districts in count

San Antonio Express-News, April 20, 2023: City extends olive branch as dispute over emergency services district debt cap plays out in Austin

San Antonio Express-News, February 21, 2023: ‘Why did the city of San Antonio do this?’: County at odds with city over state law on debt caps

Texas Legislature Online: SB 1794 Bill History