                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                  April4, 2014



The Honorable Rod Ponton                               Opinion No. GA-1048
83rd District Attorney
400 South Nelson Street                                Re: Whether the Science Advisory
Fort Stockton, Texas 79735                             Workgroup of the State Fire Marshal's Office
                                                       has authority to review prior arson
                                                       investigations (RQ-1154-GA)

Dear Mr. Ponton:

        In two letters, you ask seven questions about the Science Advisory Workgroup
("Workgroup") of the State Fire Marshal's Office ("SFMO") and its investi~ation into closed
arson cases and "forensic analysis [performed] before September 1, 2005." Your first four
questions implicate article 38.01 of the Code of Criminal Procedure as well as Attorney General
Opinion GA-0866, which construed parts of article 38.01. See Request Letter at 5-6.
Specifically, you ask about the Workgroup's authority "[i]n light of Opinion No. GA-0866" and
whether the Workgroup is "subject to the jurisdictional restrictions delineated" in the opinion?
I d.

        Article 38.01 authorizes the Texas Forensic Science Commission ("Commission") to
investigate "any allegation of professional negligence or professional misconduct that would
substantially affect the integrity of the results of a forensic analysis conducted by a crime
laboratory." TEX. CODE CRJM. PROC. ANN. art. 38.01, § (4)(a)(3) (West Supp. 2013). Opinion
GA-0866 considered the effective date of the 2005 legislation creating the Commission and its


         1
          Letter from Honorable Rod Ponton, 83rd Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 5-6
(Oct. 1, 2013) & Letter from Honorable Rod Ponton, 83rd Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at
4 (Oct. 10, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter" & "Supp. Letter," respectively).
        2
           You indicate in your request letter that a letter from the SFMO, enumerating the fmdings of the
Workgroup, has been submitted to the Texas Court of Criminal Appeals in connection with a pending habeas corpus
action in the 83rd Judicial District of Pecos County. See Request Letter at 2. To the extent you ultimately seek a
determination about the admissibility of the letter to a court or about the weight to be given the findings contained
therein, that determination is not for an attorney general opinion but for the court in the pending action.
The Honorable Rod Ponton - Page 2                   (GA-1048)



temporal limits on the Commission's authority. Tex. Att'y Gen. Op. No. GA-0866 (2011) at 1-3.
The opinion also considered the jurisdictional limits on the Commission based on the language
of the then-existing article 38.01, section (4)(a)(3). 3 !d. at 3 (considering the Commission's
authority with respect to unaccredited facilities). Both article 38.01 and Opinion GA-0866
pertain to only the Commission and do not address the authority of the Workgroup or the SFMO.

        In your initial request letter, you characterize the Workgroup as an entity created by the
SFMO in coordination with the Innocence Project of Texas and the Commission. See Request
Letter at 2. You state that "it is not clear to [your] office," but that "there are strong indications"
that the Commission has delegated authority over arson investigations to the Workgroup. !d. at
3-4. Your first four questions are predicated on a presumption of that delegation and inquire
whether this supposed delegation results in the Workgroup being limited to the same extent as
the Commission. !d. at 5-6 (asking questions "[i]n light of Opinion No. GA-0866" and about the
jurisdictional restrictions "delineated in Opinion No. GA-0866"). In briefing submitted to this
office, however, the Commission states that it "has never delegated any authority" to the SFMO.
Brief from Lynn M. Robitaille Garcia, Gen. Counsel, Tex. Forensic Sci. Comm'n at 3 (Oct. 11,
2013) (on file with the Op. Comm.). And the Texas Department of Insurance, on behalf of the
SFMO, explains in its briefing that the SFMO created the Workgroup under the statutory
authority governing the SFM0. 4 See Brief from Sara Waitt, Gen. Counsel, Tex. Dep't oflns. at 1
(Oct. 28, 2013) (citing to SFMO's authority in chapter 417 of the Government Code) (on file
with the Op. Comm.). The SFMO also explains that its decision to review closed arson cases
does not stem from a delegation of authority involving the Commission. See id. at 2. Thus, in
answer to your first four questions, article 38.01 is relevant to only the authority of the
Commission and does not address or limit any independent authority vested in the Workgroup or
the SFMO. Because Opinion GA-0866 construes only article 38.01, it is likewise irrelevant to
any authority ofthe Workgroup or the SFMO.

       In your fifth question, you ask whether the SFMO has "any independent statutory, or
other authority, to investigate and make findings on old, closed arson cases, particularly arsons
whose forensic analysis took place before September 1, 2005?" Request Letter at 6. The SFMO
is governed by chapter 417 of the Government Code. TEX. Gov'T CODE ANN. §§ 417.001-.010
(West 2012). Chapter 417 directs the fire marshal to "administer and enforce applicable
provisions of the Insurance Code and other law relating to the state fire marshal." !d.
§ 417.004(a). In addition, the fire marshal "is the chief investigator in charge ofthe investigation

        3
         Article 38.01, section (4)(a)(3) was amended in 2013 and now expands the investigative authority ofthe
Commission to include unaccredited crime laboratories. See Act of May 20, 2013, 83d Leg., R.S., ch. 782, 2013
Tex. Gen. Laws 1994, 1996 (codified at TEX. CODE CRIM. PROC. ANN. art. 38.01, §§ (4)(a)(3), (b-1)).

        4
          Chapter 417 places the SFMO under the control of the Texas Department of Insurance. See TEX. Gov'T
CODE ANN.§ 417.002 (West 2012) (providing that the state fire marshal is appointed by, and serves at the pleasure
of, the commissioner of insurance).
The Honorable Rod Ponton - Page 3                       (GA-1048)



of arson and suspected arson in the state." Id § 417.004(b). With respect to the duties to
investigate arson and suspected arson, the fire marshal "shall immediately investigate a fire
occurring in this state in which property is destroyed" if directed by the commissioner of
insurance or if requested by others identified by chapter 417. ld § 417.007(a). The fire marshal
"shall ascertain, if possible, whether the fire was caused intentionally, carelessly, or accidentally"
and shall make a written report to the commissioner. Id § 417.007(c); see also id § 417.007(d)
(providing tools for further investigation). In addition, with sufficient evidence to charge a
person with certain crimes, the "state fire marshal shall give to the appropriate prosecuting
attorney all evidence and relevant information." Id § 417.007(e).

        The language of chapter 41 7 is silent with respect to authorization over old, closed arson
cases. See id. §§ 417.001-.010 (West 2012). Chapter 417 grants the SFMO express authority
over the research and improvement of fire protection and the investigation of arson and
suspected arson. Jd. § 417.004(b)-(d). "[T]he legislature impliedly intends that an agency
should have whatever power is reasonably necessary to fulfill a function or perform a duty . . .
expressly placed in the agency" by the Legislature. Pub. Uti!. Comm 'n of Tex. v. GTE-Sw., Inc.,
901 S.W.2d 401, 407 (Tex. 1995). The investigation and review of fires, whenever occurring,
could yield information necessary for the SFMO to fulfill its duties to research and improve fire
protection and to investigate arson. Thus, we cannot conclude that the SFMO is devoid of
authority to investigate an arson case merely because the case is old or closed. Moreover,
because the SFMO's authority in chapter 417 is independent ofthat of the Commission in article
38.01, there is no basis by which to apply to the SFMO the September 1, 2005 limitation that
applies to the Commission. Accordingly, neither chapter 417 nor Opinion GA-0866 prohibits the
SFMO from investigating and making findings on closed arson cases.

        Your six and seventh questions inquire about two provisions in article 38.01 relevant to
evidentiary matters. See Supp. Letter at 4. These provisions are contained in article 38.01 and
apply to only the Commission. Thus, neither of these provisions limits any actions of the SFMO
or the Workgroup. 5




         5
         Questions regarding the admissibility of evidence in a civil or criminal action are for the particular court to
determine, and are not appropriate for an attorney general opinion. See Tex. Att'y Gen. L0-92-39 (1992) at 1.
The Honorable Rod Ponton - Page 4           (GA-1048)



                                     SUMMARY

                      Neither article 38.01 ofthe Code of Criminal Procedure nor
              Attorney General Opinion GA-0866 limit any investigative
              authority that may be vested in the Science Advisory Workgroup or
              the State Fire Marshal's Office.

                       Neither chapter 417 of the Government Code nor Opinion
               GA-0866 prohibits the State Fire Marshal's Office from
               investigating and making findings on closed arson cases.

                                            Very truly yours,




                                            Attorney General of Texas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
