ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April I, 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 AssistantFireMarshals.'" 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 I, 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. GOy'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. GOy'T CODE
'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].
The Honorable D. Matt Bingham - Page 2 (GA-0853)
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.
2Nevertheless, commissioners courts have express statutory authority to provide "assistants" to county fire
marshals. TEx. Loc. GOV'T CODE ANN. § 352.011 (West 2005).
The Honorable D. Matt Bingham - Page 3 (GA-0853)
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.
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