MARK WHITE Attorney General

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AnEqualOpportunity/ AffirmativeActionEmployer 

# TheAttorney GeneralofTexas
August 31, 1902 (

Eouorable Rem-yWade Criminal District Attorney Condemnation Section Third Floor, Services Building Dallas, Texas 75202
DearMr.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. TheCommissioners 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. Youhaveasked 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 havethe authority to abate fire haeards in unincorporated areas?
4. What authority do area municipalities haveto 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

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incorporated city, tom or village, by which property has been destroyed or damaged....” Thefire 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 andmaysubpoena witnesses to that endif hefeels that further investigation is necessary. In answer to the second part of the question, section 2 of article 1606~does not authorize afire 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 anykind; 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 anyincorporated city, townor village within the county andshall act in acooperative andadvisory 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 Inincorporated cities, townsandvillages.
Your second question deals with the duty of the fire marshal to investigate arson cases If requested by,an area city. Section 8of 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 8states Inpertinent part:

If called uponby anycity or State Fire Marshal or the Fire Chief-of anyincorporated city. town or village to aid in an investigation or to take

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charge of same. he shall act in the capacity requested. (Emphasisadded).
It is important to note the use of the word "shall" in this section, rather thanthe permissive word"may." "Shall" is generally construed tobe.mandatory. Moyerv. Kelley. 93S.W.2d502, 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, 306S.W.2d 182. 185 (Tex. Civ. App. -Texarkana 1957, nowrit); 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 apermissive directive. "Shall" wasused 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).
Yournext question is also capable of being broken downinto two parts. Youinquire about:

1. the responsibility andauthority 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 inunincorporated 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~. Theoffice of fire marshal, once created, must follow the directives of article 1606~. Section 7of the article is relevant to the Investigations of dangerous conditions. It provides. in pertinent part:

It shall be his dutywhencalled upon, or whenhe 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

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Thestatute does not distinguish between county or non-county, private business. or residential premises. Thefifth edition of Black's Law Dictionary at page 1062. defines premises as "[llands andtenements; 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 bythe fourth amendmentof 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. 545S.W.2d 798 (Tex. Crim. App. 1977). Thefire marshal must inspect county facilities or private businesses in unincorporated areas under circumstances described in section 7. Thesecond part of your question is whether the fire marshal has the authority to abate fire hazards in unincorporated areas. Section 7of 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 anysubstance 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 complywith the orders of the said CountyFire Marshal.... (Emphasisadded). There is no discussion of jurisdiction in section 7. However, the jurisdiction of the fire marshal has been clearly established in sections 2. 3, and8. Section 7mustbe read in conjunction with the entire statute. TheTexas SupremeCourt has stated that "[s]tatutes should be read as awhole andconstrued to give meaningandpurpose 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 themunicipality. Asabasic premise, It is avalid 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

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Groves, 376 S.W.2d 330 (Tex. 1964); City of Galveston v. Galveston County, 159S.W.Zd976 (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, aHouston 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 armsof 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 immunityfrom municipal ordinances, the precedential value of this statement is doubtful. Thesupremecourt did not grant awrit of error, but modified the civil court decision stating that when the court went beyond the issue of dissolving a temporary injunction, its decision wasin conflict with previous decisions. The supremecourt 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 somejurisdictions find counties amenable to ordinances, see, e.g., CookCountyv. City of Chicago, 142N.E. 512 (111. 1924), andsomewhich donot. See, e.g., Kentucky Institute for Education of B1ind.v. City of Louisville, 97S.W.402 (KY. 1906). Without dispositive Texas authority, wemust examine the most similar Texas Supreme Court case and the relevant attorney general opinions. In Port Arthur, supra, the Texas SupremeCourt madethe following statement in a case dealing with the enforcement of municipal fire codes onaschool district building:

Although our independent school districts are creatures of the state and receive substantial funds for their operation fromthe state, they are independent political entities and we will not classify their property as state property. 376S.W.Zdat 333. Thecourt 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 apolitical subdivision unless the legislature has by statute"occupied the field. Compare Attorney

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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 acounty. This opinion is precisely onpoint with the question you ask. There, acounty 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 byseven years, andanticipates its reasoning:

Weare of theview that the duty to erect acounty 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 anagency of the state. Police power is granted to the municipal corporation byvirtue of Article 1175(34).... If the regulation imposed by the city to 'protect health, life andproperty...‘ is to be uniform in its protection, wecan 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. CookCountyv. City of Chicago, 3il 111. 234. 142N.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 maybe located. It is true that the state mayconfer upon the commissioners' court of a county such power of regulation and control as to exclude someof 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....
Weare 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.

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Evenif 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 anagency of the state, it is likewise a creature of the state vested with anly suchpowers as conferred upon it by the state. It would be incorrect to hold that the county is apart of the state in the exercise of police power for reasonable regulatory and inspection purposes in this instance. Weadopt the reasoning of that opinion andreaffirm 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 hasbeenverv specific to limit afire marshal's authoritv to-areas outside incorporated cities, towns andvillages. See art: 1606~. 102, 3and8. -
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. Thecounty 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 9of the Texas Constitution. The county fire marshal is

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empoweredto 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

RlCRARDE. GRAY

III Executive Assistaat Attorney General Prepared byPatricia Hinojosa Assistant Attorney General APPROVED: OPINIONCOMMITTEE
SusanL. Garrison, Chairman Rick Gilpin Patricia Einojosa JimMoellinger

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