MARK WHITE 

Attorney General 

Supreme Court Buildinp 

P. 0. Box 12543 

Austin. TX. 79711. 2548 

5121475-2501 

Telex 9101874.1387 

Telecopier 51214754266 

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Dallas. TX. 752014709 

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El Paso. TX. 78905-2793 

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1220 Dallas Ave., Suite 202 

Houston. TX. 770028985 

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Lubbock. TX. 79401.3479 

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McAllan. TX. 78501~1555 

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!&an Antonio, TX. 782052797 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

August 31, 1902 

( 

Eouorable Rem-y Wade 

Criminal District Attorney 

Condemnation Section 

Third Floor, Services Building 

Dallas, Texas 75202 

Dear Mr. Wade: 

opinion No. MW-508 

Re: Authority of county fire 

marshal with respect to arson 

investigation 

You have requested an attorney general opinion regarding the 

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 

statute. You have asked four questions: 

1. What is the county fire marshal’s 

responsibility for arson investigation both vithin 

unincorporated’ areas and incorporated areas of 

Dallas County? 

2. If requested by an area city to 

investigate an arson case within the corporate 

city 11mlts. what discretion does the county fire 

‘marshal have? 

3. What responsibility and authority does 

the office of county fire marshal have to Inspect 

county facilities for fire prevention purposes and 

private businesses in unincorporated areas, and 

does the county fire marshal have the authority to 

abate fire haeards in unincorporated areas? 

4. What authority do area municipalities 

have to enforce their fire codes over county owned 

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 

County Fire Marshall to 

“[I] t shall be the duty .of the said 

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. 

834; accord, 

V.T.C.S. art. 1175, 

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 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RlCRARD E. GRAY III 

Executive Assistaat Attorney General 

Prepared by Patricia Hinojosa 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Patricia Einojosa 

Jim Moellinger 

n 

p. 1837