Can a Texas county make volunteer assistant fire marshals reserve law enforcement officers?

Plain-English summary

The Smith County Fire Marshal had appointed six volunteer assistant fire marshals. The county worried that, unless those volunteers were also "reserve law enforcement officers" under the Occupations Code, their testimony in court might be questioned and they might not qualify to be certified as arson investigators. The Criminal District Attorney asked the Attorney General whether the volunteers could be commissioned or appointed as reserve law enforcement officers.

The Attorney General said no. The Occupations Code defines a "reserve law enforcement officer" by pointing to a closed list of specific designations: a reserve deputy sheriff, a reserve deputy constable, a member of a reserve municipal police force, and a navigation-district reserve police officer. A volunteer assistant fire marshal is not on that list. Under the interpretive rule that listing certain things excludes the things left out, the volunteers do not fit the statutory definition.

The opinion then checked whether some other statute gives county commissioners courts or county fire marshals the power to appoint these volunteers as reserve officers anyway. It found none. Texas governmental bodies have only the powers the Legislature expressly grants plus those necessarily implied to carry out the express ones, and nothing in the statutes governing commissioners courts or fire marshals grants this appointment power. The opinion noted that commissioners courts can provide "assistants" to a county fire marshal, but treated that as a separate thing from creating reserve peace officers. So a volunteer assistant fire marshal does not become a reserve law enforcement officer automatically by being appointed.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

County fire marshals and commissioners courts (as the opinion held for them): The opinion told them they lacked authority to commission or appoint volunteer assistant fire marshals as reserve law enforcement officers, because no statute grants that power expressly or by necessary implication. It noted they may still provide "assistants" to a fire marshal under the Local Government Code.

Volunteer assistant fire marshals (as the opinion described it): Under the opinion, the appointment to that role does not, by itself, make a person a reserve law enforcement officer, because the statutory definition does not include the position.

On the concerns about testimony and arson certification (what the opinion addressed and did not): The opinion answered only the legal question of whether the volunteers qualify as reserve law enforcement officers; it concluded they do not automatically qualify, and did not opine separately on the downstream testimony or certification consequences the county described.

Common questions

Is a volunteer assistant fire marshal automatically a reserve law enforcement officer?
No. The opinion concluded that the appointment, by itself, does not make the person a reserve law enforcement officer.

Why not?
The opinion explained that the Occupations Code defines "reserve law enforcement officer" through a specific list of designations that does not include volunteer assistant fire marshals.

Can the county commissioners court or fire marshal just appoint them as reserve officers?
No. The opinion concluded neither has statutory authority, express or necessarily implied, to do so.

Can a commissioners court still give the fire marshal help?
Yes. The opinion noted commissioners courts have express authority to provide "assistants" to county fire marshals, which is different from creating reserve peace officers.

Background and statutory framework

A reserve law enforcement officer under Occupations Code chapter 1701 is a person designated as such under specific Local Government Code and Water Code provisions, namely the reserve deputy sheriff, reserve deputy constable, reserve municipal police force, and navigation-district reserve police force statutes. Tex. Occ. Code Ann. § 1701.001(6) (West Supp. 2010); Tex. Loc. Gov't Code Ann. § 85.004 (West 2008); Tex. Loc. Gov't Code Ann. § 86.012; Tex. Loc. Gov't Code Ann. § 341.012 (West 2005); Tex. Water Code Ann. § 60.0775 (West Supp. 2010). None of those designates a volunteer assistant fire marshal as a reserve officer. The opinion applied the doctrine of expressio unius est exclusio alterius. United Svcs. Auto. Ass'n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007).

Texas governmental bodies have only those powers expressly granted by statute plus those necessarily implied to exercise the express powers. Bullock v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972). The statutes on commissioners courts and county fire marshals do not grant authority to appoint volunteer assistant fire marshals as reserve officers, though commissioners courts may provide "assistants" to county fire marshals. Tex. Loc. Gov't Code Ann. § 352.011 (West 2005).

Citations

Statutes:

• Tex. Occ. Code Ann. § 1701.001(6) (West Supp. 2010)
• Tex. Loc. Gov't Code Ann. § 85.004 (West 2008)
• Tex. Loc. Gov't Code Ann. § 86.012
• Tex. Loc. Gov't Code Ann. § 341.012 (West 2005)
• Tex. Water Code Ann. § 60.0775 (West Supp. 2010)
• Tex. Loc. Gov't Code Ann. § 352.011 (West 2005)

Cases:

• United Svcs. Auto. Ass'n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007)
• Bullock v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0853
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0853.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 1, 2011

The Honorable D. Matt Bingham Opinion No. GA-0853
Smith County Criminal District Attorney
Smith County Courthouse Re: Whether volunteer assistant fire marshals may
100 North Broadway, 4th Floor be designated as "reserve deputies" (RQ-0927-GA)
Tyler, Texas 75702

Dear Mr. Bingham:

The Smith County Fire Marshal has appointed six "Volunteer Assistant Fire Marshals."[1] You explain that the volunteer assistant fire marshals might not be "reserve law enforcement officer[s]" under chapter 1701 of the Occupations Code and that their testimony in future court cases might therefore be "compromise[d]" and they might not be able to be "certified as arson investigators." Request Letter, supra note 1, at 2-3 & n.5. Accordingly, you ask whether they may be commissioned or appointed as reserve law enforcement officers. Id. at 2-3.

A reserve law enforcement officer under chapter 1701 is "a person designated as a reserve law enforcement officer under Section 85.004, 86.012, or 341.012, Local Government Code, or Section 60.0775, Water Code." TEX. OCC. CODE ANN. § 1701.001(6) (West Supp. 2010). None of these statutes designates an assistant volunteer fire marshal as a reserve law enforcement officer. See TEX. LOC. GOV'T CODE ANN. §§ 85.004 (West 2008) (reserve deputy sheriff), 86.012 (reserve deputy constable), 341.012 (West 2005) (reserve municipal police force); see also TEX. WATER CODE ANN. § 60.0775 (West Supp. 2010) (navigation district reserve police force). Therefore, a volunteer assistant fire marshal is not designated as a reserve law enforcement officer under chapter 1701 of the Occupations Code. See United Svcs. Auto. Ass'n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007) (explaining the doctrine of expressio unius est exclusio alterius, which provides that a statute's express inclusion of one thing excludes other things not expressly included).

Similarly, the statutes listing the powers and duties of county commissioners courts and county fire marshals do not mention or imply a power or duty to commission or appoint volunteer assistant fire marshals as reserve law enforcement officers. See generally TEX. LOC. GOV'T CODE ANN. §§ 81.021-.034 (West 2005 & Supp. 2010) (commissioners courts), 352.011-.023 (West 2005) (county fire marshals); see also Bullock v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972) (noting that governmental bodies have only those powers expressly granted by statute and implied powers that are necessary to exercise the powers expressly granted). Therefore, the county commissioners court and the county fire marshal lack authority to commission or appoint volunteer assistant fire marshals as reserve law enforcement officers. See Tex. Att'y Gen. Op. No. GA-0709 (2009) at 2 (citing Bullock, 480 S.W.2d at 371) (opining that a county attorney could not appoint reserve peace officers because no statute provides express or necessarily implied authority to do so).[2]

Because the county commissioners court and county fire marshal lack this authority and because the definition of "reserve law enforcement officer" does not include a volunteer assistant fire marshal, a volunteer assistant fire marshal is not, as an automatic consequence of the appointment, a reserve law enforcement officer.

SUMMARY

The Legislature did not grant county commissioners courts and county fire marshals authority to commission or appoint a volunteer assistant fire marshal as a reserve law enforcement officer. The Legislature did not include the term "volunteer assistant fire marshal" in the statutory definition of a "reserve law enforcement officer." Accordingly, a person appointed to serve as a volunteer assistant fire marshal is not, as an automatic consequence of the appointment, a reserve law enforcement officer.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable D. Matt Bingham, Smith County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas at 3 (Oct. 28, 2010) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

[2] Nevertheless, commissioners courts have express statutory authority to provide "assistants" to county fire marshals. TEX. LOC. GOV'T CODE ANN. § 352.011 (West 2005).