GOVERNMENT CODE CHAPTER 417. STATE FIRE MARSHAL

GOVERNMENT CODE

TITLE 4. EXECUTIVE BRANCH

SUBTITLE B. LAW ENFORCEMENT AND PUBLIC PROTECTION

CHAPTER 417. STATE FIRE MARSHAL

Sec. 417.001. DEFINITIONS. In this chapter:

(1) "Commissioner" means the commissioner of insurance.

(2) "Department" means the Texas Department of Insurance.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 983, Sec. 2, eff. Jan. 1, 1990; Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.01, eff. Sept. 1, 1997.

Sec. 417.002. APPOINTMENT AND TENURE. The state fire marshal is appointed by the commissioner. The state fire marshal serves at the pleasure of the commissioner and may be discharged at any time. The state fire marshal shall report to the commissioner.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.01, eff. Sept. 1, 1997.

Sec. 417.003. STATUS AS STATE-COMMISSIONED OFFICER. The state fire marshal is a state-commissioned officer and functions in that capacity subject to rules of the commissioner.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.01, eff. Sept. 1, 1997.

Sec. 417.004. GENERAL POWERS AND DUTIES. (a) The state fire marshal, under the supervision of the commissioner, shall administer and enforce applicable provisions of the Insurance Code and other law relating to the state fire marshal. The commissioner shall perform the supervisory and rule-making functions previously performed by the Texas Commission on Fire Protection under this subsection. The commissioner and the commission shall transfer information between the two agencies as necessary to allow the agencies to perform their statutory duties. The commissioner and the commission may make and adopt by rule memoranda of understanding as necessary to coordinate their respective duties.

(b) The state fire marshal is the chief investigator in charge of the investigation of arson and suspected arson in the state.

(d) The state fire marshal may conduct research to improve fire protection and fire administration and may stimulate research by public and private agencies for that purpose.

(e) The state fire marshal may, on the request of a public or nonprofit entity with duties related to fire protection, advise or assist the entity in relation to those duties.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.01, eff. Sept. 1, 1997.

Sec. 417.005. ADOPTION OF RULES. The commissioner, after consulting with the state fire marshal, may adopt necessary rules to guide the state fire marshal and fire and arson investigators commissioned by the state fire marshal in the investigation of arson, fire, and suspected arson and in the performance of other duties for the commissioner.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 912, Sec. 21, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1172, Sec. 3.01, eff. Sept. 1, 1997.

Sec. 417.0051. FIRE PREVENTION AND SAFETY EDUCATION. The commissioner, through the state fire marshal:

(1) shall use pertinent and timely facts relating to fires to develop educational programs and disseminate materials necessary to educate the public effectively regarding methods of fire prevention and safety; and

(2) may accept gifts, grants, and donations from any source for the purposes of this section.

Added by Acts 1989, 71st Leg., ch. 186, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.01, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1124, Sec. 1, eff. Sept. 1, 2003.

Sec. 417.0052. TEXAS FIRE INCIDENT REPORTING SYSTEM. The state fire marshal, under the direction of the commissioner, is responsible for maintaining and administering the Texas Fire Incident Reporting System.

Added by Acts 1997, 75th Leg., ch. 1172, Sec. 3.02, eff. Sept. 1, 1997.

Sec. 417.006. FIRE AND ARSON INVESTIGATORS. The state fire marshal may commission peace officers to act as fire and arson investigators under his supervision and to perform other law enforcement duties assigned to the commissioner and the state fire marshal by law. The state fire marshal may revoke a peace officer's commission under this section for just cause.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 912, Sec. 22, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1172, Sec. 3.03, eff. Sept. 1, 1997.

Sec. 417.007. INVESTIGATION OF FIRE. (a) The state fire marshal shall immediately investigate a fire occurring in this state in which property is destroyed if the commissioner directs the investigation or, in the discretion of the commissioner, if the investigation is requested by:

(1) the mayor, fire chief, fire marshal, or police chief of a municipality in which a fire occurs;

(2) a county or district judge, sheriff, county fire marshal, chief or fire marshal of a fire department in an unincorporated area, or county attorney of a county in which a fire occurs;

(3) a fire insurance company interested in a loss or the company's general, state, or special agent;

(4) an insurance policyholder, property owner, or lessee sustaining a fire loss;

(5) a justice of the peace or a constable of a precinct in which a fire occurs; or

(6) officials of a state or federal law enforcement agency or local or special governmental district involved or interested in a fire loss that occurred in this state.

(b) The state fire marshal at any time may enter a building or premises at which a fire is in progress or has occurred and is under control of law enforcement or fire service officials to investigate the cause, origin, and circumstances of the fire. If control of the building or premises has been relinquished, entry must be in compliance with search and seizure law and applicable federal law.

(c) The state fire marshal shall conduct the investigation at the place of the fire and before an insured loss may be paid. The state fire marshal shall ascertain, if possible, whether the fire was caused intentionally, carelessly, or accidentally. The state fire marshal shall make a written report of the investigation to the commissioner.

(d) If the state fire marshal believes that further investigation is necessary, the state fire marshal shall take sworn statements from persons who in his opinion can supply relevant information and shall have the statements put in writing. The state fire marshal may administer oaths and compel the attendance of witnesses and the production of documents.

(e) If the state fire marshal believes that there is sufficient evidence to charge a person with arson, attempted arson, conspiracy to commit fraud, or another offense related to the matter under investigation, the state fire marshal shall give to the appropriate prosecuting attorney all evidence and relevant information that has been obtained, including the names of witnesses. The state fire marshal shall arrest the person if the person has not been arrested by some other authority. The state fire marshal shall assist in the prosecution of any complaint he files.

(f) The state fire marshal may, in his discretion, conduct or direct the conduct of an investigation in private and may exclude from the place of the investigation persons not needed for the investigation. Witnesses may be separated from each other and not be allowed to communicate with other witnesses until after they have testified.

(g) The state fire marshal may elect to withhold from the public any testimony taken in an investigation under this section.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 186, Sec. 2, eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.04, eff. Sept. 1, 1997.

Sec. 417.0075. INVESTIGATION OF FIREFIGHTER FATALITY. (a) In this section, the term "firefighter" includes an individual who performs fire suppression duties for a governmental entity or volunteer fire department.

(b) If a firefighter dies in the line of duty or if the firefighter's death occurs in connection with an on-duty incident in this state, the state fire marshal shall investigate the circumstances surrounding the death of the firefighter, including any factors that may have contributed to the death of the firefighter.

(c) In conducting an investigation under this section, the state fire marshal has the same powers as those granted to the state fire marshal under Section 417.007. The state fire marshal shall coordinate the investigative efforts of local government officials and may enlist established fire service organizations and private entities to assist in the investigation.

(d) The state fire marshal shall release a report concerning an investigation conducted under this section on completion of the investigation.

(e) Not later than October 31 of each year, the state fire marshal shall deliver to the commissioner a detailed report about the findings of each investigation conducted under this section in the preceding year.

(f) Information gathered in an investigation conducted under this section is subject to Section 552.108.

(g) The authority granted to the state fire marshal under this section shall not limit in any way the authority of the county or municipal fire marshal to conduct the county or municipal fire marshal's own investigation into the death of a firefighter within the county or municipal fire marshal's jurisdiction.

Added by Acts 2001, 77th Leg., ch. 846, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 47 (S.B. 396), Sec. 1, eff. May 12, 2011.

Sec. 417.008. RIGHT OF ENTRY; EXAMINATION AND CORRECTION OF DANGEROUS CONDITIONS. (a) On the complaint of any person, the state fire marshal, at any reasonable time, is entitled to enter any building or premises in the state.

(b) The state fire marshal shall enter and is entitled, at any time, to enter any mercantile, manufacturing, or public building, place of amusement, or place where public gatherings are held, or any premises belonging to such a building or place, and make a thorough examination.

(1) the building or other structure, because of lack of repair, age, dilapidated condition, or other reason, is susceptible to fire and is so located or occupied that fire would endanger persons or property in the building or structure;

(2) a dangerous condition is created by:

(A) an improper arrangement of stoves, ranges, furnaces, or other heating appliances, including chimneys, flues, and pipes with which they are connected, or by their lighting systems or devices; or

(B) the manner of storage of explosives, compounds, petroleum, gasoline, kerosene, dangerous chemicals, vegetable products, ashes, or combustible, flammable, or refuse materials; or

(3) any other condition exists that is dangerous or is liable to cause or promote fire or create danger for fire fighters, occupants, or other buildings or structures.

(d) The occupant or owner of the building or premises shall immediately comply with an order made by the state fire marshal under this section. The state fire marshal may, if necessary, apply to a court of competent jurisdiction for writs or orders necessary to enforce this section, and the court may grant appropriate relief. The state fire marshal is not required to give a bond.

(e) The commissioner may adopt by rule any appropriate standard developed by a nationally recognized standards-making association under which the state fire marshal may enforce this section, except that standards adopted by rule under this subsection do not apply in a geographic area under the jurisdiction of a local government that has adopted fire protection ordinances that apply in the geographic area.

(f) The commissioner by rule shall prescribe a reasonable fee for an inspection performed by the state fire marshal that may be charged to a property owner or occupant who requests the inspection, as the commissioner considers appropriate. In prescribing the fee, the commissioner shall consider the overall cost to the state fire marshal to perform the inspections, including the approximate amount of time the staff of the state fire marshal needs to perform an inspection, travel costs, and other expenses.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 186, Sec. 2, eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 912, Sec. 23, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1172, Sec. 3.05, eff. Sept. 1, 1997.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1147 (H.B. 1951), Sec. 4.001, eff. September 1, 2011.

Sec. 417.0081. INSPECTION OF STATE-OWNED OR STATE-LEASED BUILDINGS. (a) The state fire marshal, at the commissioner's direction, shall periodically inspect public buildings under the charge and control of a state agency and buildings leased for the use of a state agency.

(b) For the purpose of determining a schedule for conducting inspections under this section, the commissioner by rule shall adopt guidelines for assigning potential fire safety risk to state-owned and state-leased buildings. Rules adopted under this subsection must provide for the inspection of each state-owned and state-leased building to which this section applies, regardless of how low the potential fire safety risk of the building may be.

(c) On or before January 1 of each year, the state fire marshal shall report to the governor, lieutenant governor, speaker of the house of representatives, and appropriate standing committees of the legislature regarding the state fire marshal's findings in conducting inspections under this section.

Added by Acts 1993, 73rd Leg., ch. 684, Sec. 49, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1172, Sec. 3.06, eff. Sept. 1, 1997.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1147 (H.B. 1951), Sec. 4.002, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 374 (S.B. 1105), Sec. 1, eff. June 9, 2015.

Acts 2015, 84th Leg., R.S., Ch. 374 (S.B. 1105), Sec. 2, eff. June 9, 2015.

Sec. 417.0082. PROTECTION OF STATE-OWNED OR STATE-LEASED BUILDINGS AGAINST FIRE HAZARDS; AUTHORITY OF STATE FIRE MARSHAL. (a) The state fire marshal, under the direction of the commissioner, shall take any action necessary to protect a public building under the charge and control of a state agency and the building's occupants, and the occupants of a building leased for the use of a state agency, against an existing or threatened fire hazard. The state fire marshal shall include the State Office of Risk Management and each state agency occupying or managing an affected building in all communication concerning fire hazards.

(b) The commissioner and the State Office of Risk Management shall make and each adopt a memorandum of understanding that coordinates the agency's duties under this section.

Added by Acts 1993, 73rd Leg., ch. 684, Sec. 52, eff. Sept. 1, 1993. Renumbered from Government Code Sec. 419.0081, and amended by Acts 1997, 75th Leg., ch. 1172, Sec. 3.07, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 407 (S.B. 908), Sec. 12, eff. September 1, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 1147 (H.B. 1951), Sec. 4.003, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 374 (S.B. 1105), Sec. 3, eff. June 9, 2015.

Sec. 417.0083. FIRE SUPPRESSION RATINGS SCHEDULE. (a) The state fire marshal shall perform duties as directed by the commissioner relating to the department's fire suppression ratings schedule.

(b) The state fire marshal may provide technical assistance to paid fire departments, volunteer fire departments, and local governments responding to the use of the fire suppression ratings schedule.

Added by Acts 1991, 72nd Leg., ch. 628, Sec. 4, eff. Sept. 1, 1991. Renumbered from Government Code Sec. 419.901 and amended by Acts 1997, 75th Leg., Sec. 3.08, eff. Sept. 1, 1997.

Sec. 417.009. DELEGATION OF AUTHORITY. (a) If for any reason the state fire marshal is unable to make a required investigation in person, the marshal may designate the fire marshal of the city or town where the investigation is to be made or another suitable person to act for the state fire marshal.

(b) The designated person has the same authority with respect to the investigation as is provided by this chapter for the state fire marshal. The designated person is entitled to compensation as provided by the commissioner.

Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 628, Sec. 5, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1172, Sec. 3.09, eff. Sept. 1, 1997.

Sec. 417.010. DISCIPLINARY AND ENFORCEMENT ACTIONS; ADMINISTRATIVE PENALTIES. (a) This section applies to each person and firm licensed, registered, or otherwise regulated by the department through the state fire marshal, including:

(1) a person regulated under Title 20, Insurance Code; and

(2) a person licensed under Chapter 2154, Occupations Code.

(b) The commissioner by rule shall delegate to the state fire marshal the authority to take disciplinary and enforcement actions, including the imposition of administrative penalties in accordance with this section on a person regulated under a law listed under Subsection (a) who violates that law or a rule or order adopted under that law. In the rules adopted under this subsection, the commissioner shall:

(1) specify which types of disciplinary and enforcement actions are delegated to the state fire marshal; and

(2) outline the process through which the state fire marshal may, subject to Subsection (e), impose administrative penalties or take other disciplinary and enforcement actions.

(c) The commissioner by rule shall adopt a schedule of administrative penalties for violations subject to a penalty under this section to ensure that the amount of an administrative penalty imposed is appropriate to the violation. The department shall provide the administrative penalty schedule to the public on request. The amount of an administrative penalty imposed under this section must be based on:

(1) the seriousness of the violation, including:

(A) the nature, circumstances, extent, and gravity of the violation; and

(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) the economic harm to the public interest or public confidence caused by the violation;

(3) the history of previous violations;

(4) the amount necessary to deter a future violation;

(5) efforts to correct the violation;

(6) whether the violation was intentional; and

(7) any other matter that justice may require.

(d) In the enforcement of a law that is enforced by or through the state fire marshal, the state fire marshal may, in lieu of cancelling, revoking, or suspending a license or certificate of registration, impose on the holder of the license or certificate of registration an order directing the holder to do one or more of the following:

(1) cease and desist from a specified activity;

(2) pay an administrative penalty imposed under this section; or

(3) make restitution to a person harmed by the holder's violation of an applicable law or rule.

(e) The state fire marshal shall impose an administrative penalty under this section in the manner prescribed for imposition of an administrative penalty under Subchapter B, Chapter 84, Insurance Code. The state fire marshal may impose an administrative penalty under this section without referring the violation to the department for commissioner action.

(f) An affected person may dispute the imposition of the penalty or the amount of the penalty imposed in the manner prescribed by Subchapter C, Chapter 84, Insurance Code. Failure to pay an administrative penalty imposed under this section is subject to enforcement by the department.

Added by Acts 1993, 73rd Leg., ch. 912, Sec. 24, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1172, Sec. 3.10, eff. Sept. 1, 1997.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1147 (H.B. 1951), Sec. 4.004, eff. September 1, 2011.