THEATMBRNEY GENERAL 

OF TEXAS 

AURTIN, T-s 78711 

September 19, 1977 

Honorable Hugh C. Yantis, Jr., Opinion No. H-1056 

Chairman 

State Board of Insurance 

1110 San Jacinto 

Austin, Texas 70786 

Re: Subpoena power of 

city fire marshals. 

Dear Chairman Yantis: 

You have asked our opinion whether a city council may 

create the office of city fire marshal and give the fire 

marshal subpoena powers to carry out his duties. The law 

is well settled that a home rule citv derives its oowers 

from article 11, section 5 of the Texas Constitution. Lower 

Colorado River Authority v. City of San Marcos, 523 S.Wr 

641 (Tex. 1975). A home rule city may exercise all powers 

set out in its charter so long as the powers are not denied 

it by the Constitution or general statutes. Burch v. City of 

San Antonio, 518 S.W.Zd 540 (Tex. 1975); City of Sweetwater v. 

Geron, 380 S.W.2d 550 (Tex. 1964). We have found no constitutional or statutory provision which would prohibit a home 

rule city from appointing a fire marshal and giving him subpoena powers to investigate fires, if authorized by the city's 

charter. 

A general law city must, of course, look to the Legislature for its power. Article 1068, V.T.C.S., provides in 

pertinent part: 

The city council shall have power: 

. . . . 

10. And generally to establish 

such regulations for the prevention 

and extinguishment of fires as the 

city council may deem expedient. 

So long as the actions of the city council are found to be 

necessary and reasonable, the discretion granted by article 

1068 is broad. 

P. 4338 
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Honorable Hugh C. Yantis, Jr. - Page 2 (H-1056) 

Cities have a responsibility to the 

public to afford protection from the 

hazard of fire. This cannot be done 

without power to make reasonable regulations and the right to exercise a 

reasonable discretion in determining 

what is needed under the circumstances. 

It was plainly the intent of the legislature to give cities a broad discretion in this matter for the statute, 

(art. 1068, supra) grants the power to 

establish such regulations as "the 

city council may deem expedient." 

This discretion is limited to regulations which are necessary and reasonable. 

City of Coleman v. Phone, 222 S.W.2d 646, 650 (Tex. Civ. App -- 

Eastland 1949, writ ref'd). 

We believe the discretion conferred by article 1068 is 

sufficiently broad to authorize the city council of a general 

law city to create the position of fire marshal and grant 

subpoena powers to the fire marshal. The city council might 

legitimately conclude that such actions are both reasonable 

and necessary to protect against the hazard of fire and to 

facilitate the investigation of destructive conflagrations. 

Such a conclusion would be consistent with the actions of the 

Legislature in creating the office of State Fire Marshal and 

conferring investigative and subpoena powers on that officer. 

Ins. Code arts. 5.43-5.45. The commissioners court of any 

county is likewise authorized to establish the office of county 

fire marshal, and county fire marshals are empowered to investigate fires and subpoena witnesses if necessary. V.T.C.S. art. 

1606c. The Legislature has, moreover, authorized the issuance 

of search warrants to the State Fire Marshal or to the fire 

marshal of any county, city or other political subdivision. 

Code Crim. Proc. art. 18.05. It is our opinion, therefore, that 

article 1068, V.T.C.S., empowers the city council of a general 

law city to create the office of city fire marshal and to grant 

investigative and subpoena powers to the fire marshal. 

You have also asked if the State Fire Marshal may delegate his subpoena powers to a city fire marshal. Article 

5.43 of the Insurance Code provides in pertinent part: 

The State Fire Marshal shall have the 

power to administer oaths, take testimany , compel the attendance of witnesses 

p. 4339 
. - 

Honorable Hugh C. Yantis, Jr. - Page 3 (R-1056) 

and the production of documents. When, 

in his opinion, further investigation 

is necessary, he sha'll take or cause to 

be taken the testimony on oath of all 

persons supposed to be cognizant of any 

facts, or to have knowledge in relation 

to the matter under investigation, and 

shall cause the same to be reduced to 

writing. . . . 

Article 5.45 of the Insurance Code provides: 

If for any reason the State Fire Marshal is unable to make any required investigation in person, he may designate 

the fire marshal~of such city or town or 

some other suitable person to act for him; 

and such person so designated shall have 

the same authority as is herein given the 

State Fire Marshal with reference to the 

particular matter to be investigated by 

him. . . . 

We believe these statutes clearly authorize the State 

Fire Marshal to delegate to the fire marshal of a city or 

town the subpoena powers described in article 5.43 of the 

Insurance Code. The language of article 5.45 appears, 

however, to limit the delegation of power to "the particular 

matter to be investigated," when. the State Fire Marshal "for 

any reason . . . is unable to make any required investigation 

in person." Thus, any delegation of powers by the State Fire 

Marshal should be made on a case-by-case basis in accordance 

with the provisions of article 5.45. 

SUMMARY 

The city council of a home rule city,, if 

authorized by the city charter, or of a 

general law city may establish the office 

of city fire marshal and give the fire 

marshal subpoena powers to carry out his 

duties. The State Fire Marshal may delegate his subpoena powers to a city fire 

marshal on a case-by-case basis, if the 

State Fire Marshal is for any reason unable 

to conduct any required investigation in 

person. 

P. 4340 
Honorable Hagh C. Yantls, Jr. - Page 4 (H-1056) 

Very truly youra, 

APPROVED: 

Opinion Committee 

jst 

P. 4341