                                 The Attorney General of Texas
                                                    August 31, 1902
                                                                         (
MARK WHITE
Attorney General


                               Eouorable Rem-y Wade                            opinion   No. MW-508
Supreme Court Buildinp         Criminal District   Attorney
P. 0. Box 12543
Austin. TX. 79711. 2548
                               Condemnation Section                            Re: Authority of county fire
5121475-2501                   Third Floor, Services Building                  marshal with respect to arson
Telex 9101874.1387             Dallas, Texas     75202                         investigation
Telecopier 51214754266
                               Dear Mr. Wade:
1607 MaIn st.. suite 1400
Dallas. TX. 752014709                 You have requested   an attorney    general opinion    regarding   the
21411428944                    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
4S24 Alberta Ave., Suite 160
                               statute.    You have asked four questions:
El Paso. TX. 78905-2793
9lY533.3464
                                                 1.     What is   the   county    fire   marshal’s
                                           responsibility   for arson investigation    both vithin
1220 Dallas Ave., Suite 202                unincorporated’ areas and incorporated         areas of
Houston. TX. 770028985
7131850.0355
                                           Dallas County?

                                                 2.    If   requested  by  an area    city   to
SW Broadway. Suite 312                     investigate    an arson case within   the corporate
Lubbock. TX. 79401.3479                    city 11mlts. what discretion   does the county fire
9c6/747-5238
                                          ‘marshal have?

4309 N. Tenth. Suite B                           3.    What responsibility     and authority    does
McAllan. TX. 78501~1555                    the office    of county fire marshal have to Inspect
5x?l552.4547                               county facilities     for fire prevention purposes and
                                           private    businesses    in unincorporated    areas,  and
200 Main Plaza. suite 400                  does the county fire marshal have the authority to
!&anAntonio, TX. 782052797                 abate fire haeards in unincorporated       areas?
512/2254191
                                                  4.   What authority do area municipalities
An Equal Opportunity/
                                           have to enforce their fire codes over county owned
Affirmative Action Employer                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 “[I] t shall be the duty .of the said
                               County     Fire    Marshall       to    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.     V.T.C.S.    art. 1175,
834; accord,       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

JOHNW. FAINTER, JR.
First Assistant Attorney          General

RlCRARD E. GRAYIII
Executive Assistaat Attorney             General

Prepared by Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

Susan L. Garrison,    Chairman
Rick Gilpin
Patricia Einojosa
Jim Moellinger




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                                          p. 1837
