Untitled Texas Attorney General Opinion ( 1982 )

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
Austin. TX. 79711. 2548
Condemnation Section Re: Authority of county fire
5121475-2501 Third Floor, Services Building marshal with respect to arson
Telex 9101874.1387 Dallas, Texas 75202 investigation
Telecopier 51214754266
Dear Mr. Wade:
1607 MaIn st.. suite 1400
Dallas. TX. 752014709 You have requested an attorney general opinion regarding the
21411428944 duties of the fire marshal of Dallas County. The Commissioners Court
of Dallas County, pursuant to article 1606~. V.T.C.S.. created the
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 the county fire marshal’s
responsibility for arson investigation both vithin
1220 Dallas Ave., Suite 202 unincorporated’ areas and incorporated areas of
Houston. TX. 770028985
7131850.0355
Dallas County?
2. If requested by an area city to
SW Broadway. Suite 312 investigate an arson case within the corporate
Lubbock. TX. 79401.3479 city 11mlts. what discretion does the county fire
9c6/747-5238
‘marshal have?
4309 N. Tenth. Suite B 3. What responsibility and authority does
McAllan. TX. 78501~1555 the office of county fire marshal have to Inspect
5x?l552.4547 county facilities for fire prevention purposes and
private businesses in unincorporated areas, and
200 Main Plaza. suite 400 does the county fire marshal have the authority to
!&anAntonio, TX. 782052797 abate fire haeards in unincorporated areas?
512/2254191
4. What authority do area municipalities
An Equal Opportunity/
have to enforce their fire codes over county owned
Affirmative Action Employer facilities?
Your first question is divided Into two subjects -- the
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 that “[I] t shall be the duty .of the said
County Fire Marshall to investigate the cause, origin and
circumstances of every fire occurring within the county, outside any
p. 1830
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” to determine if fire was the result of
carelessness or design. Section 4 of the statute gives the fire
marshal the discretion to subpoena witnesses and to file misdemeanor
charges against witnesses who refuse to be sworn, to appear and
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
of fires within incorporated cities. towns, or villages. Section 8
further provides in pertinent part:
Sec. 8. The County Fire Marshal shall be
charged with enforcing all State and county
regulations that pertain to fire or other
combustible explosions or damages caused by fire
or explosion of any kind; he shall coordinate the
work of the various fire-fighting and
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 there only when his services are
requested; he shell cooperate with the State Fire
Marshal in the carrying out of the purposes of
fire 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 to 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
p. 1831
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 of
article 1606~ used the word "may" in sections 1 and 5 and used
permissive language ("at its option"; "[wlhen in his opinion") to
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 for 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 for
providing and repairing county buildings. V.T.C.S. art. 2351. The
county commissioners court may create the office of county fire
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 that it Is In the Interest
of safety and fire-prevention. to enter any
premises and inspect the same.... (htphesis
added). c
p. 1832
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 at page 1062. defines premises as "[llands and tenements;
an estate,' including lands and buildings thereon." Clearly, county
buildings are 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 of jurisdiction in section 7. However, the
jurisdiction of the 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 in
unincorporated areas. r
Your final question deals with the authority of area
municipalities to enforce their fire codes over county owned
facilities located within the municipality. As a basic premise, It is
a valid exercise of municipal police power to enforce ordinances for
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
p. 1833
. -
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 for the proposition that
municipalities may enforce their fire codes over county owned
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 in the
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 to
establish county 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 that
when the court went beyond the 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 for
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 of
municipal fire codes on a school district building:
Although our independent school districts are
creatures of 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. buildings of a political subdivision unless the
legislature has by statute"occupied the field. Compare Attorney
p. 1834
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 for
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
to the State. Its use concerns the public at
large, for the whole state is interested in the
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 to the reasonable police regulations
which the city imposes in the interest of general
welfare. Cook County v. City of Chicago, 3il 111.
234. 142 N.E. 512 (1924).. It can be arnued that
the state has coannitted the control of the county
buildings to the county, and that the county has
preempted the field of regulations to the
exclusion of the city within whose boundaries the
buildings may be located. It is true that the
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
which would normally lie in the city. In this
instance, however, the only power which the
Legislature has conferred upon the county is that
set forth in Article 2351(7) Vernon's Civil
Statutes, wherein it states:
Each commissioners court shall:
. ..Provide and keep in repair
courthouses, jails and all necessary
public buildings....
We are of the opinion that 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.
p. 1835
. .
. 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 exclusive police jurisdiction of such
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 buildings within municipal areas are
susceptible to municipal ordinances, based on the public policy
announced in Port Arthur, that the legislature did not intend "a
hiatus in regulation necessary to the health and safety of the
community," and 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 orders withid incorporated city limits; the
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 that
municipalities may enforce their fire codes over county owned
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 to investigate an
arson case within the corporate city limits, the
county fire marshal must act in the capacity
requested. The county fire marshal is responsible
for inspecting, for fire prevention purposes,
county facilities within unincorporated areas, and
for inspecting private businesses in
unincorporated areas as circumscribed by the
fourth amendment of the United States
Constitution, and b3 article I, section 9 of the
Texas Constitution. The county fire marshal is
p. 1836
. .., :
.-.
Honorable Henry Wade - Page 8 (ML'-508)
empowered to order the abatement of fire hazards
in unincorporated areas. Area municipalities may
enforce their ,fire codes over county owned
facilities within incorporated areas.
MARK WHITE
Attorney General of Texas
JOHNW. FAINTER, JR.
First Assistant Attorney General
RlCRARD E. GRAYIII
Executive Assistaat Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Einojosa
Jim Moellinger
n
p. 1837