Judges: MARK WHITE, Attorney General of Texas
Filed Date: 10/9/1981
Status: Precedential
Modified Date: 7/6/2016
Honorable Mike Driscoll County Attorney Harris County Courthouse 1001 Preston, Suite 634 Houston, Texas 77002
Re: Authority of county fire marshal
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.C.S., 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:
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 of 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.
Webster's New International Dictionary 586 (2d ed. 1947).
See McHenry v. Ouachita Parish School Board,
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 1606c.
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, § 8. 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, §§ 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, § 11(1), (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 1606c to the extent of conflict. See Texas Liquor Control Board v. Falstaff Distributing Co.,
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 § 50.055(h), (i); Tex. Const. art.
Very truly yours,
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