                     The Attorney             General of Texas
                                        October 9, 1981
MARK WHITE
Attorney General


                   Honorable Mike Driscoll                Opinion No.MW-375
                   County Attorney
                   Harris County Courthouse               Re: Authority of county fire
                   1001 Preston, Suite 634                marshal
                   Houston, Texas 77002

                   Dear Mr. Driscoll:

                        You have requested our opinion regarding the authority of the
                   Fire Marshal of Harris County. The Commissioners Court of Harris
                   County, pursuant to,article 1606c, V.T.S.C., has created the office of
                   county fire marshal, whose duties are specified in that statute.
                   Section 8 thereof provides that:

                                 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 shall cooperate
                            with the State Fire Marshal in the carrying out of
                            the purposes of fire prevention, fire fighting or
                            post-fire investigation. 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 charge of same, he
                            shall act in the capacity requested. (Emphasis
                            added).


                   You ask seven questions regarding the authority of the county fire
                   marshal:




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          1.   Can the fire marshal designate the specific
               area to be served by a volunteer fire
               department?

          2.   Can   the  fire marshal     determine which
               volunteer   fire   department   has   primary
               responsibility within a particular fire zone?

          3.   Can the fire marshal require volunteer fire
               departments to meet the minimum standards for
               maintaining and operating a volunteer fire
               department as published from time to time by
               the State Board of Insurance in its Key Rate
               Schedule for Grading Cities and Towns of
               Texas with Reference to their Fire Defenses
               and Physical Conditions before said volunteer
               fire departments could offer fire fighting
               service or fire prevention service within a
               fire zone?

         4.    Does the fire marshal have any control over
               the granting of charters to new volunteer
               fire departments?

         5.    Can the fire marshal enforce the transfer of
               real property from one volunteer department
               to another when located in the fire zone of
               another volunteer fire department?

         6.    Can the fire marshal promulgate regulations
               or minimum standards required to establish
               new    volunteer    departments     in  the
               unincorporated areas of Harris County?

         7.    Does the fire marshal have any authority over
               fire departments in the unincorporated areas
               of the county created pursuant to Vernon's
               Texas Codes Annotated, Water Code, Section
               50.055 and Article 2351a-6, V.T.C.S.?

     Section 8 directs the fire marshal to "coordinate the work of the
various fire-fighting and fire-prevention units within the county" for
all such units which are located outside the corporate limits of any
incorporated city, town or village. Your brief indicates that you are
primarily concerned about the exercise of this power. "Coordinate"
means:

         to put in the same order or rank; to bring into a
         common action, movement or condition; to regulate
         and combine in harmonious action; to adjust;
         harmonize.




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Webster's New International Dictionary 586 (2d ed. 1947).

See McHenry v. Ouachita Parish School Board, 125 So. 841, 843 (La.
1929); Aeolian-Skinner Organ Co. v. Shepard Broadcasting Service, 81
F.2d 392, 395 (1st Cir. 1936). The authority of a county officer is
limited to those powers expressly conferred by statute or constitution
or necessarily implied therefrom. Crosthwait v. State, 138 S.W.2d
1060 (Tex. 1940); Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 365
(Tex. Comm'n. App. 1928). In our opinion, since the fire marshal is
empowered to "coordinate" the activities of volunteer fire departments
located outside any city's corporate limits, it necessarily follows
that he may designate specific areas to be served by those departments
and determine which departments have primary responsibility within a
particular fire zone. Therefore, we answer your first two questions
in the affirmative. We caution, however, that section 8 of article
1606~ restricts the fire marshal to the coordination of those
volunteer fire departments located wholly outside the corporate limits
of an incorporated city or town. As to departments located elsewhere,
his authority is advisory only, and may be exercised only upon the
request of a particular department.

     We do not believe that the county fire marshal is authorized to
exercise the powers of which you inquire in questions 3 through 6.
Each of those activities involves substantially more than mere
"coordination" of volunteer fire-fighting units, and may not
reasonably be inferred from the powers granted by article 1606~.

     Your final question asks whether the county fire marshal has any
authority over fire departments created pursuant to article 2351a-6,
V.T.C.S., or section 50.055 of the Water Code. Article 2351a-6,
V.T.C.S., provides for the creation of rural fire prevention districts
wholly within one county or cutting across county lines. V.T.C.S.
art. 2351a-6, §§2,2(a). A petition of voters begins the process, and
upon granting the petition the commissioners court calls an election
to confirm the organization and authorize the tax to support it.
V.T.C.S. art. 2351a-6, 88.     This fire protection district is a
political subdivision governed by a Board of Fire Commissioners
appointed by the commissioners court. V.T.C.S. art. 2351a-6, 8§10,13.
The district has authority to own fire-fighting equipment and to
contract for fire-fighting facilities "upon such terms as the
governing body of the district shall determine." V.T.C.S. art.
2351a-6, 511(l),(3).

     The rural fire prevention district is established by the county
as a political subdivision with a governing body given considerable
discretion as to providing fire-fighting services. V.T.C.S. art.
2351a-6, §11(7). In our opinion, the portion of article 1606c,
V.T.C.S., requiring the county fire marshal to coordinate the work of
fire-fighting units is inconsistent with the powers of the fire
commissioners within the fire prevention district. Article 2351a-6,
V.T.C.S.. is a more specific law with regard to fire protection
districts and prevails over article 1606~ to the extent of conflict.




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See Texas Liquor Control Board v. Falstaff Distributing Co., 369
S.W.2d 483 (Tex. Civ. App. - Houston 1963, no writ); Nelson v. Texas
Employment Commission, 290 S.W.2d 708 (Tex. Civ. App. - Galveston
1956, writ ref'd). Thus, the county fire marshal may not coordinate
the work of fire-fighting units within an article 2351a-6 district.

     Section 50.055 of the Water Code provides that a district may
'establish a fire department to perform all fire-fighting activities
within the district. Before a district establishes a fire department.
it must develop a detailed plan for the establishment, operation and
maintenance of the proposed fire department. The plan must be
approved by the district governing board, the Water Rights Commission
and the electors of the district. See Water Code §SO.OSS(h),(i); Tax.
Const. art. XVI, §59. We believe itwould be inconsistent with these
detailed planning and approval requirements to permit the county fire
marshal to "coordinate" the department's work and thereby overrule
decisions made pursuant to section 50.055.       Section 50.055 is a
special statute relating to the establishment of fire departments in
water districts and prevails over section 8 of article 1606~ to the
extent of'conflict. Thus, the county fire marshal may not coordinate
the work of fire-fighting units within rural fire prevention districts
or water districts authorized by section 50.055 to establish fire
departments. We do not address the other powers given the county fire
marshal by article 1606c, such as the authority to investigate the
causes of fires in order to identify cases of arson. V.T.C.S. art.
1606c, §§2,4,7.


                             SUMMARY

               In areas of Harris County outside the
          corporate limits of an incorporated city or town,
          the county fire marshal is empowered by section 8
          of article 1606c, V.T.C.S., to designate specific
          areas to be served by volunteer fire departments
          and determine which departments have primary
          responsibility within a particular fire zone. He
          does not have this authority with respect to fire
          departments established pursuant      to article
          2351a-6, V.T.C.S., or section 50.055 of the Water
          Code.   He may not require the volunteer fire
          departments to meet minimum standards established
          by the State Board of Insurance. He may not
          control the establishment of new volunteer fire
          departments either by granting them charters or
          promulgating regulations. He may not enforce the
          transfer of real property from one volunteer fire
          department to another.




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                                       -MARK       WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin & Susan Garrison
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Laura Martin
Jim Moellinger




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