## 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 firemarshals.

Dear Chairman Yantis:

You have asked our opinion whether a city council may create the office of city firemarshal and give the fire marshal subpoena powers to carry out his duties. The law iswell settled that ahome rule citv derives its oowers from article 11, section 5of the Texas Constitution. Lower Colorado RiverAuthority v. City of San Marcos, 523 S.Wr 641 (Tex. 1975). Ahome rule city may exercise allpowers set out in its charter so long as thepowers are not denied itby the Constitution or general statutes. Burch v. City of SanAntonio, 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 firemarshal and giving him subpoena powers to investigate fires, ifauthorized by the city's charter.

A general law citymust, of course, look to the Legislature for itspower. 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 tobe necessary and reasonable, thediscretion granted by article 1068 isbroad.

P. 4338.

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 tomake reasonable regulations and the right to exercise a reasonable discretion indetermining what isneeded under the circumstances. Itwas plainly the intent of the legislature togive cities abroad discretion in thismatter for the statute, (art.1068, supra) grants thepower 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 thediscretion conferred by article 1068 is sufficiently broad to authorize the city council of ageneral law city to create the position of firemarshal and grant subpoena powers to the firemarshal. The city council might legitimately conclude that such actions are both reasonable and necessary toprotect 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 increating 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 firemarshal, and county firemarshals are empowered to investigate fires and subpoena witnesses ifnecessary. 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 isour opinion, therefore, that article 1068,V.T.C.S., empowers the city council of ageneral law city to create the office of city firemarshal and togrant investigative and subpoena powers to the firemarshal.

You have also asked if the State Fire Marshal may delegate his subpoena powers to a city firemarshal. Article 5.43 of the Insurance Code provides inpertinent part:

The State Fire Marshal shall have the power toadminister oaths, take testimany,compel the attendance ofwitnesses

p. 4339. -

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

and the production of documents. When, inhis opinion, further investigation is necessary, he sha'lltake or cause to be taken the testimony on oath of all persons supposed tobe cognizant of any facts, or tohave knowledge in relation to thematter under investigation, and shall cause the same tobe reduced to writing.

. . . Article 5.45 of the Insurance Code provides:

If for any reason the State Fire Marshal isunable tomake any required investigation inperson, hemay designate the firemarshal~of such city or town or some other suitable person to act for him; and such person sodesignated shall have the same authority as isherein given the State Fire Marshal with reference to the particular matter tobe investigated by him.

. . .
We believe these statutes clearly authorize the State Fire Marshal todelegate to the firemarshal 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 "theparticular matter tobe investigated," when.the State Fire Marshal "for any reason . . .isunable tomake any required investigation inperson." Thus, any delegation of powers by the State Fire Marshal should bemade on a case-by-case basis inaccordance with the provisions of article 5.45.

SUMMARY
The city council of ahome rule city,,if authorized by the city charter, or of a general law citymay establish the office of city firemarshal 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. 4340Honorable Hagh C.Yantls, Jr. - Page 4 (H-1056)

Very truly youra,

APPROVED:

Opinion Committee jst

P. 4341