Case Information
*1 The Attorney General of Texas
August 31, 1902 ( MARK WHITE
Attorney General
Eouorable Rem-y Wade opinion No. MW-508 Supreme Court Buildinp Criminal District Attorney P. 0. Box 12543 Condemnation Section Re: Authority of county fire Austin. TX. 79711. 2548 Third Floor, Services Building marshal with respect to arson 5121475-2501 Dallas, Texas 75202 investigation Telex 9101874.1387 Telecopier 51214754266
Dear Mr. Wade: 1607 MaIn st.. suite 1400 You have requested an attorney general opinion regarding the Dallas. TX. 752014709 duties of the fire marshal of Dallas County. The Commissioners Court 21411428944 of Dallas County, pursuant to article 1606~. V.T.C.S.. created office of county fire marshal whose duties are specified in that 4S24 Alberta Ave., Suite 160 statute. You have asked four questions: El Paso. TX. 78905-2793 9lY533.3464 1. What is fire marshal’s responsibility for arson investigation both vithin 1220 Dallas Ave., Suite 202 unincorporated’ areas and incorporated areas of Houston. TX. 770028985 Dallas County? 7131850.0355
2. If requested by an area city to investigate an arson case within the corporate SW Broadway. Suite 312 Lubbock. TX. 79401.3479 city 11mlts. what discretion does the county 9c6/747-5238 ‘marshal have? 3. What responsibility and authority does
4309 N. Tenth. Suite B the office of county fire marshal have to Inspect McAllan. TX. 78501~1555 5x?l552.4547 county facilities for fire prevention purposes and private businesses in unincorporated areas, and does the county fire marshal have the authority
200 Main Plaza. suite 400 abate fire haeards in unincorporated areas? !&an Antonio, TX. 782052797 512/2254191
4. What authority do area municipalities have to enforce fire codes over county owned
An Equal Opportunity/ facilities? Affirmative Action Employer
Your first question is divided Into two subjects -- responsibilities of the fire marshal in unincorporated areas and in incorporated areas. In unincorporated areas, section 2 of article 1606~. V.T.C.S.. states “[I] t shall be the duty .of the said County Fire Marshall investigate cause, origin circumstances of every fire occurring within the county, outside any *2 Honorable Henry Wade - Page 2 (~~-508)
incorporated city, tom or village, by which property has been destroyed or damaged....” The fire marshal is directed to “especially make investigation” determine if fire was result to carelessness or design. Section 4 of the statute gives fire marshal the discretion to subpoena witnesses and to file misdemeanor to appear and charges against witnesses who refuse to be sworn, testify, or to bring forward evidence. Reading the two sections together, .the fire marshal has the duty to investigate the cause of fires occurring In unincorporated areas and may subpoena witnesses to that end if he feels that further investigation is necessary.
In answer to the second part of the question, section 2 of article 1606~ does not authorize a fire marshal to Investigate causes Section 8 of fires within incorporated cities. towns, or villages. further provides in pertinent part:
Sec. 8. The County Fire Marshal shall be charged with enforcing all State and county regulations pertain fire or other combustible explosions or damages caused by fire or explosion of any kind; he shall coordinate
work various fire-fighting
fire-prevention units within the county, provided that, he shall have no authority to enforce his orders or decrees within the corporate limits of any incorporated city, town or village within the county and shall act in a cooperative and advisory capacity only when his there services
requested; he shell cooperate with the State Fire Marshal in the carrying out of the purposes of prevention, fire flghtlng or post-fire investigation. If called upon by any city or State Fire Marshal or the Ffre Chief of any incorporated city, town or village to aid in an Investigation or to take charge of same. he shall act in the capacity requested.
Thus, the county fire marshal has no authority to enforce his orders In incorporated cities, towns and villages.
Your second question deals with the duty of the fire marshal to investigate arson cases If requested by,an area city. Section 8 of article 1606~ establishes the duties of the fire marshal if he is called upon to aid In, or take charge of, an investigation.
Section 8 states In pertinent part:
If called upon by any city or State Fire Marshal or the Fire Chief-of any incorporated city. town or village to aid in an investigation or to take *3 Honorable Henry Wade - Page 3 (Mw-SOS)
charge of same. he shall act in the capacity requested. (Emphasis added).
It is important to note the use of the word "shall" in this section, rather than the permissive word "may." "Shall" is generally construed to be.mandatory. Moyer v. Kelley. 93 S.W.2d 502, 503 (Tex. Civ. App. - San Antonio 1936, writ dism'd w.o.~.); accord, Attorney General Opinions C-775 (1966); C-332 (1964); WW-831 (1960); V-1201 (1951). and is presumed to be imperative unless the context indicates otherwise.
Jaynes v. Lee, 306 S.W.2d 182. 185 (Tex. Civ. App. - Texarkana 1957, no writ); see Attorney General Opinions W-466. E-326 (1974). If the statute is-ad as a whole, it can be seen that the drafters article 1606~ used the word "may" in sections 1 and 5 and used permissive language ("at its option"; "[wlhen in his opinion") express a permissive directive. "Shall" was used consistently In the statute to delineate the duties and powers of the fire marshal and should consequently be construed as a mandatory requirement. Cf. - Attorney General Opinion H-466 (1974).
Your next question is also capable of being broken down into two parts. You inquire about:
1. the responsibility and authority of a fire marshal inspecting, for ffre prevention purposes
a. county facilities, and b. private businesses in unincorporated areas, and
2. the authority of the fire marshal to abate fire hazards in unincorporated areas.
Each county's commissioners court has the responsibility providing and repairing county buildings. V.T.C.S. art. 2351. The commissioners court may create the office of county marshal pursuant to article 1606~. The office of fire marshal, once created, must follow the directives of article 1606~. Section 7 of the article is relevant to the Investigations of dangerous conditions.
It provides. in pertinent part:
It shall be his duty when called upon, or when he has reason to believe it Is In the Interest safety and fire-prevention. enter any premises inspect same.... (htphesis added). c
Honorable Wenry Wade - Page 4 (MW-508)
The statute does not distinguish between county or non-county, private business. or residential premises. The fifth edition of Black's Law Dictionary an estate,' at page 1062. defines premises as "[llands and tenements;
including lands and buildings thereon." Clearly, county included in the phrase "any premises." Private businesses also fall within the ambit of “any premises," although the duty to inspect is circumscribed by the fourth amendment of the United States Constitution and by article I. section 9 of the Texas Constitution. See v. City of Seattle. 387 U.S. 541 (1967) (search warrant required for administrative inspection of business premises); Poindexter v.,State. 545 S.W.2d 798 (Tex. Crim. App. 1977). The fire marshal must inspect county facilities or private businesses in unincorporated areas under circumstances described in section 7.
The second part of your question is whether the fire marshal has the authority to abate fire hazards in unincorporated areas. Section 7 of article 1606c is pertinent:
[I]f he findIs] that because of inflammable substance being present, dangerous or dilapidated walls, ceilings or other parts of the structure existing, improper lighting, heating or other facilities being used that endanger life, health or safety, or if because of chimneys. wiring, flues, pipes, mains or stoves, or any substance he shall find stored in any building, he believes that the safety of said building or that of its occupants is endangered and that it will likely promote or cause fire or combustion, he 'shall be empowered to order the said situation rectified forthwith and the owner or occupant of the said structure shall comply with the orders of the said County Fire Marshal.... (Emphasis added).
There is no discussion jurisdiction in section 7. However, the of jurisdiction fire marshal has been clearly established in sections 2. 3, and 8. Section 7 must be read in conjunction with the entire statute. The Texas Supreme Court has stated that "[s]tatutes should be read as a whole and construed to give meaning and purpose to every part." Ex parte Pruitt. 551 S.W.2d 706, 709 (Tex. 1977). Therefore, the fire marshal has authority to abate fire hazards r unincorporated areas.
Your final question deals with authority area municipalities enforce
facilities located within the municipality. As a basic premise, It is a valid exercise of municipal police power to enforce ordinances the prot~ection of health, l'ife, and property. V.T.C.S. art. 1175, 834; accord, Port Arthur Independent School District v. City of *5 . -
Honorable Henry Wade - Page 5 @lW-508)
Groves, 376 S.W.2d 330 (Tex. 1964); City of Galveston v. Galveston County, 159 S.W.Zd 976 (Tex. Civ. App. - Galveston 1942, writ ref'd).
There is no direct Texas authority the proposition that municipalities may enforce county buildings. However, a Houston civil appeals court held:
Properties of the State are excluded as a matter of law from the application of City building regulations. Port Arthur Independent School Dist. v. City of Groves, supra. Counties.
being arms of the state, would likewise be immune from city-imposed payment of fees as
instant case. City of Houston v. Houston Independent School District. 436 S.W.2d 568. 572 (Tex. Civ. App. - Housto~modified, 443 S.W.2d 49. 50 (Tex. 1969). Although this language appears establish immunity from municipal ordinances, the precedential value of this statement is doubtful. The supreme court did not grant a writ of error, but modified the civil court decision stating when the court went beyond issue of dissolving a temporary injunction, its decision was in conflict with previous decisions. The supreme court reserved judgment on the question regarding county-city relationships.
Although there are no Texas cases directly on point. there are out-of-state cases in which some jurisdictions find counties amenable to ordinances, see, e.g., Cook County v. City of Chicago, 142 N.E. 512 (111. 1924), and some which do not. See, e.g., Kentucky Institute Education of B1ind.v. City of Louisville, 97 S.W. 402 (KY. 1906).
Without dispositive Texas authority, we must examine the most similar Texas Supreme Court case and the relevant attorney general opinions. In Port Arthur, supra, the Texas Supreme Court made the following statement in a case dealing with the enforcement municipal fire codes on a school district building:
Although our independent school districts creatures the state and receive substantial funds for their operation from the state, they are independent political entities and we will not classify their property as state property.
376 S.W.Zd at 333. The court also stated that the police powers of a municipality are not applicable to the state or its property, but they are applicable to the. of a political subdivision unless legislature has by statute"occupied field. Compare Attorney *6 Honorable Henry Wade - Page 6 (MW-508)
General Opinions C-690 (1966); C-301 (1964); V-977 (1949) rpith Attorney General opinions M-182 (1968); WW-218 (1957).
Attorney General Opinion WW-218 (1957) determined that a municipal ordinance did apply to a county. This opinion is precisely on point with the question you ask. There, a county asked whether it was required to pay fees assessed by an ordinance, or charges permits for demolition or construction. The opinion predates Port Arthur by seven years, and anticipates its reasoning:
We are of the view that the duty to erect a county courthouse rests upon the relation of the county Its use concerns the public at to the State. the whole state is interested in the
large, enforcement of the law in each county and the county acts in the building of the courthouse as an agency of the state. Police power is granted to the municipal corporation by virtue of Article 1175(34).... If the regulation imposed by the city to 'protect health, life and property...‘ is to be uniform in its protection, we can perceive of no good reason why the county should not be amenable the reasonable police regulations which the city imposes in the interest of general Cook County v. City of Chicago, 3il 111. welfare. It can be arnued that
234. 142 N.E. 512 (1924). . the state has coannitted the control of the county to the county, and that the county has preempted field regulations the exclusion of the city within whose boundaries buildings may be located. It is true that state may confer upon the commissioners' court of a county such power of regulation and control as to exclude some of the broad police jurisdiction In this which would normally lie in the city.
instance, however, the only power which Legislature has conferred upon the county is that set forth in Article 2351(7) Vernon's Civil Statutes, wherein it states: commissioners court shall:
Each keep repair . ..Provide courthouses, jails and all necessary public buildings....
We are of the opinion the above quoted statute is so general as not to vest sole police jurisdiction with regard to regulation of county buildings with the county connnissfoners' court.
. .
. Honorable Henry Wade - Page 7 (MW-508)
Even if the above provision is given the broadest application permitted by its language, it is not so explicit as to infer that the county should have such exclusive police jurisdiction of buildings. While it is well settled that the county is an agency of the state, it is likewise a creature of the state vested with anly such powers as conferred upon it by the state. It would be incorrect to hold that the county is a part of the state in the exercise of police power for reasonable regulatory and inspection purposes in this instance.
We adopt the reasoning of that opinion and reaffirm its holding. We believe that county within municipal areas susceptible to municipal ordinances, based on the public policy announced in Port Arthur, that the legislature did not intend "a hiatus in regulation necessary the health and safety the community," that by not providing a system of regulation applicable to the county, the legislature was content that safety measures are within the police power vested in the city. 376 S.W.Zd at 334-35.
Article 1606~ by its very language prevents fire marshals from enforcing their limits; orders withid incorporated city legislature has been verv specific to limit a fire marshal's authoritv to-areas outside incorporated cities, towns and villages. See art: - 1606~. 102, 3 and 8.
Based on the foregoing discussion, it is our opinion municipalities may enforce fire county facilities within incorporated areas.
SUMMARY The county fire marshal is responsible for arson investigation within unincorporated areas of Dallas County. but not within incorporated areas.
If requested by an area city investigate an arson case within the corporate city limits, fire marshal must act in the capacity
requested. The county fire marshal is responsible inspecting, for prevention purposes, county facilities within unincorporated areas, and private inspecting businesses unincorporated areas as circumscribed by
fourth amendment United States Constitution, and b3 article I, section 9 of the Texas Constitution. The county fire marshal is
. .., : .-.
Honorable Henry Wade - Page 8 (ML'-508) empowered to order the abatement of fire hazards in unincorporated areas. Area municipalities may enforce ,fire
facilities within incorporated areas.
MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RlCRARD E. GRAY III
Executive Assistaat Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Einojosa
Jim Moellinger
n