          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                  Re: Subpoena power of
1110 San Jacinto                          city fire marshals.
Austin, Texas 70786

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 consti-
tutional or statutory provision which would prohibit a home
rule city from appointing a fire marshal and giving him sub-
poena powers to investigate fires, if authorized by the city's
charter.

     A general law city must, of course, look to the Legis-
lature 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.




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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 regu-
          lations and the right to exercise a
          reasonable discretion in determining
          what is needed under the circumstances.
          It was plainly the intent of the legis-
          lature to give cities a broad discre-
          tion 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 regula-
          tions which are necessary and reason-
          able.

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 inves-
tigate 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 dele-
gate 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 testi-
         many , compel the attendance of witnesses



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        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 Mar-
                  shal is unable to make any required in-
                  vestigation 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 dele-
                  gate 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.




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



                             Very truly youra,




APPROVED:




Opinion Committee

jst




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