Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
October 9, 1981
MARK WHITE
Attorney General
Honorable Mike Driscoll Opinion No.MW-375
County Attorney
Harris County Courthouse Re: Authority of county fire
1001 Preston, Suite 634 marshal
Houston, Texas 77002
Dear Mr. Driscoll:
You have requested our opinion regarding the authority of the
Fire Marshal of Harris County. The Commissioners Court of Harris
County, pursuant to,article 1606c, V.T.S.C., has created the office of
county fire marshal, whose duties are specified in that statute.
Section 8 thereof provides that:
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 shall cooperate
with the State Fire Marshal in the carrying out of
the purposes of fire prevention, fire fighting or
post-fire investigation. 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 charge of same, he
shall act in the capacity requested. (Emphasis
added).
You ask seven questions regarding the authority of the county fire
marshal:
p. 1262
Mike Driscoll - Page 2 (Mw-375)
1. Can the fire marshal designate the specific
area to be served by a volunteer fire
department?
2. Can the fire marshal determine which
volunteer fire department has primary
responsibility within a particular fire zone?
3. Can the fire marshal require volunteer fire
departments to meet the minimum standards for
maintaining and operating a volunteer fire
department as published from time to time by
the State Board of Insurance in its Key Rate
Schedule for Grading Cities and Towns of
Texas with Reference to their Fire Defenses
and Physical Conditions before said volunteer
fire departments could offer fire fighting
service or fire prevention service within a
fire zone?
4. Does the fire marshal have any control over
the granting of charters to new volunteer
fire departments?
5. Can the fire marshal enforce the transfer of
real property from one volunteer department
to another when located in the fire zone of
another volunteer fire department?
6. Can the fire marshal promulgate regulations
or minimum standards required to establish
new volunteer departments in the
unincorporated areas of Harris County?
7. Does the fire marshal have any authority over
fire departments in the unincorporated areas
of the county created pursuant to Vernon's
Texas Codes Annotated, Water Code, Section
50.055 and Article 2351a-6, V.T.C.S.?
Section 8 directs the fire marshal to "coordinate the work of the
various fire-fighting and fire-prevention units within the county" for
all such units which are located outside the corporate limits of any
incorporated city, town or village. Your brief indicates that you are
primarily concerned about the exercise of this power. "Coordinate"
means:
to put in the same order or rank; to bring into a
common action, movement or condition; to regulate
and combine in harmonious action; to adjust;
harmonize.
p. 1263
Mike Driscoll - Page 3 (``-375)
Webster's New International Dictionary 586 (2d ed. 1947).
See McHenry v. Ouachita Parish School Board, 125 So. 841, 843 (La.
1929); Aeolian-Skinner Organ Co. v. Shepard Broadcasting Service, 81
F.2d 392, 395 (1st Cir. 1936). The authority of a county officer is
limited to those powers expressly conferred by statute or constitution
or necessarily implied therefrom. Crosthwait v. State, 138 S.W.2d
1060 (Tex. 1940); Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 365
(Tex. Comm'n. App. 1928). In our opinion, since the fire marshal is
empowered to "coordinate" the activities of volunteer fire departments
located outside any city's corporate limits, it necessarily follows
that he may designate specific areas to be served by those departments
and determine which departments have primary responsibility within a
particular fire zone. Therefore, we answer your first two questions
in the affirmative. We caution, however, that section 8 of article
1606~ restricts the fire marshal to the coordination of those
volunteer fire departments located wholly outside the corporate limits
of an incorporated city or town. As to departments located elsewhere,
his authority is advisory only, and may be exercised only upon the
request of a particular department.
We do not believe that the county fire marshal is authorized to
exercise the powers of which you inquire in questions 3 through 6.
Each of those activities involves substantially more than mere
"coordination" of volunteer fire-fighting units, and may not
reasonably be inferred from the powers granted by article 1606~.
Your final question asks whether the county fire marshal has any
authority over fire departments created pursuant to article 2351a-6,
V.T.C.S., or section 50.055 of the Water Code. Article 2351a-6,
V.T.C.S., provides for the creation of rural fire prevention districts
wholly within one county or cutting across county lines. V.T.C.S.
art. 2351a-6, §§2,2(a). A petition of voters begins the process, and
upon granting the petition the commissioners court calls an election
to confirm the organization and authorize the tax to support it.
V.T.C.S. art. 2351a-6, 88. This fire protection district is a
political subdivision governed by a Board of Fire Commissioners
appointed by the commissioners court. V.T.C.S. art. 2351a-6, 8§10,13.
The district has authority to own fire-fighting equipment and to
contract for fire-fighting facilities "upon such terms as the
governing body of the district shall determine." V.T.C.S. art.
2351a-6, 511(l),(3).
The rural fire prevention district is established by the county
as a political subdivision with a governing body given considerable
discretion as to providing fire-fighting services. V.T.C.S. art.
2351a-6, §11(7). In our opinion, the portion of article 1606c,
V.T.C.S., requiring the county fire marshal to coordinate the work of
fire-fighting units is inconsistent with the powers of the fire
commissioners within the fire prevention district. Article 2351a-6,
V.T.C.S.. is a more specific law with regard to fire protection
districts and prevails over article 1606~ to the extent of conflict.
p. 1264
Mike Driscoll - Page 4 (MW-375)
See Texas Liquor Control Board v. Falstaff Distributing Co., 369
S.W.2d 483 (Tex. Civ. App. - Houston 1963, no writ); Nelson v. Texas
Employment Commission, 290 S.W.2d 708 (Tex. Civ. App. - Galveston
1956, writ ref'd). Thus, the county fire marshal may not coordinate
the work of fire-fighting units within an article 2351a-6 district.
Section 50.055 of the Water Code provides that a district may
'establish a fire department to perform all fire-fighting activities
within the district. Before a district establishes a fire department.
it must develop a detailed plan for the establishment, operation and
maintenance of the proposed fire department. The plan must be
approved by the district governing board, the Water Rights Commission
and the electors of the district. See Water Code §SO.OSS(h),(i); Tax.
Const. art. XVI, §59. We believe itwould be inconsistent with these
detailed planning and approval requirements to permit the county fire
marshal to "coordinate" the department's work and thereby overrule
decisions made pursuant to section 50.055. Section 50.055 is a
special statute relating to the establishment of fire departments in
water districts and prevails over section 8 of article 1606~ to the
extent of'conflict. Thus, the county fire marshal may not coordinate
the work of fire-fighting units within rural fire prevention districts
or water districts authorized by section 50.055 to establish fire
departments. We do not address the other powers given the county fire
marshal by article 1606c, such as the authority to investigate the
causes of fires in order to identify cases of arson. V.T.C.S. art.
1606c, §§2,4,7.
SUMMARY
In areas of Harris County outside the
corporate limits of an incorporated city or town,
the county fire marshal is empowered by section 8
of article 1606c, V.T.C.S., to designate specific
areas to be served by volunteer fire departments
and determine which departments have primary
responsibility within a particular fire zone. He
does not have this authority with respect to fire
departments established pursuant to article
2351a-6, V.T.C.S., or section 50.055 of the Water
Code. He may not require the volunteer fire
departments to meet minimum standards established
by the State Board of Insurance. He may not
control the establishment of new volunteer fire
departments either by granting them charters or
promulgating regulations. He may not enforce the
transfer of real property from one volunteer fire
department to another.
p. 1265
Mike Driscoll - Page 5 (Mw-375)
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin & Susan Garrison
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Laura Martin
Jim Moellinger
p. 1266