Can the Texas State Fire Marshal reinvestigate old, closed arson cases?

Plain-English summary

District Attorney Rod Ponton asked the Attorney General seven questions about the Science Advisory Workgroup of the State Fire Marshal's Office and its review of closed arson cases, especially cases whose forensic analysis was done before September 1, 2005. The worry behind most of the questions was this: the Texas Forensic Science Commission operates under article 38.01 of the Code of Criminal Procedure, and a 2011 Attorney General opinion, GA-0866, had read that statute to put limits on the Commission, including a temporal limit tied to the 2005 law that created it. The District Attorney wanted to know whether those same limits reached the Workgroup and the Fire Marshal's Office.

The AG explained that article 38.01 and GA-0866 govern only the Commission. The District Attorney's first four questions assumed the Commission had handed off, or delegated, authority over arson reviews to the Workgroup, which would carry the Commission's limits along with it. But the record before the AG cut the other way. The Commission's general counsel stated in a brief that the Commission "has never delegated any authority" to the Fire Marshal's Office. The Texas Department of Insurance, which oversees the Fire Marshal's Office, explained that the office created the Workgroup under its own statute, chapter 417 of the Government Code, and that its decision to review closed arson cases did not come from any delegation by the Commission. Because there was no delegation, the AG concluded that article 38.01 and GA-0866 simply do not address or limit whatever independent authority the Workgroup or the Fire Marshal's Office has.

That left the District Attorney's fifth question: does the Fire Marshal's Office have its own authority to investigate and make findings on old, closed arson cases? The AG looked at chapter 417, which makes the fire marshal the chief investigator of arson and suspected arson in the state and gives the office duties to investigate fires and to research and improve fire protection. Chapter 417 says nothing one way or the other about old or closed cases, but Texas law presumes the Legislature intends an agency to have whatever power is reasonably necessary to carry out the duties it was given. Investigating and reviewing fires, whenever they happened, could produce information the office needs for those duties. So the AG could not conclude the office lacks authority to investigate an arson case just because it is old or closed, and because the office's chapter 417 authority is independent of the Commission's, the September 1, 2005 limit on the Commission does not apply to it. On the sixth and seventh questions, which concerned two evidence-related provisions of article 38.01, the AG again explained that those provisions apply only to the Commission and do not limit the Fire Marshal's Office or the Workgroup. The AG also declined to weigh in on whether the Workgroup's findings, which had been submitted in a pending habeas corpus case, are admissible or how much weight they should get, saying those are questions for the court.

Currency note

This opinion was issued in 2014. 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

District Attorney Ponton (as the opinion described it): The opinion answered that neither article 38.01 nor GA-0866 limits any investigative authority of the Workgroup or the State Fire Marshal's Office, because both govern only the Commission, and that neither chapter 417 nor GA-0866 prohibits the Fire Marshal's Office from investigating and making findings on closed arson cases. It declined to address the admissibility or weight of the office's findings in the pending habeas action, calling that a matter for the court.

The State Fire Marshal's Office and the Workgroup (as the opinion described it): The opinion described the office as drawing authority from chapter 417, independent of the Commission's article 38.01 authority, with the fire marshal serving as chief arson investigator and the office holding the implied power reasonably necessary to its duties. The September 1, 2005 limit that applies to the Commission was described as not applying to the office.

The Texas Forensic Science Commission (as the opinion described it): The opinion described the Commission as the entity to which article 38.01 and GA-0866 apply, including their temporal and jurisdictional limits, and noted the Commission's statement that it had never delegated any authority to the Fire Marshal's Office.

Common questions

Can the State Fire Marshal's Office investigate arson cases that are already closed?
The AG concluded nothing in chapter 417 of the Government Code or in Opinion GA-0866 prohibits it. Chapter 417 makes the fire marshal the chief arson investigator and gives the office the implied power reasonably necessary to research fire protection and investigate arson, so old or closed cases are not off-limits.

Is the Fire Marshal's Workgroup bound by the Forensic Science Commission's limits?
No. The AG explained that article 38.01 and GA-0866 govern only the Commission. The Commission stated it never delegated authority to the Fire Marshal's Office, which created the Workgroup under its own statute.

Does the September 1, 2005 cutoff apply to the Fire Marshal's Office?
No. The AG explained that the 2005 limit applies to the Commission under article 38.01, and because the Fire Marshal's authority under chapter 417 is independent, there is no basis to apply that cutoff to the office.

What is the Science Advisory Workgroup?
The AG described it, based on the request and the briefing, as an entity the State Fire Marshal's Office created, with the office explaining it did so under chapter 417 rather than by any delegation from the Commission.

Did the AG decide whether the Workgroup's findings can be used in court?
No. The AG said the admissibility of evidence and the weight of findings in a pending case are for the court to decide, not an attorney general opinion.

Background and statutory framework

Article 38.01 of the Code of Criminal Procedure authorizes the Texas Forensic Science Commission to investigate allegations of professional negligence or misconduct that would substantially affect the integrity of a forensic analysis conducted by a crime laboratory (Tex. Code Crim. Proc. Ann. art. 38.01, § (4)(a)(3) (West Supp. 2013)). Opinion GA-0866 construed that statute, addressing the effective date of the 2005 legislation creating the Commission and the Commission's temporal and jurisdictional limits. The AG explained that both article 38.01 and GA-0866 pertain only to the Commission. The record showed no delegation of authority to the Fire Marshal's Office: the Commission's general counsel stated it had never delegated any authority, and the Texas Department of Insurance, which oversees the office, explained that the office created the Workgroup under chapter 417 of the Government Code (Tex. Gov't Code Ann. § 417.002 (West 2012)). A 2013 amendment expanded the Commission's authority to include unaccredited crime laboratories (Act of May 20, 2013, 83d Leg., R.S., ch. 782, 2013 Tex. Gen. Laws 1994, 1996; Tex. Code Crim. Proc. Ann. art. 38.01, §§ (4)(a)(3), (b-1)).

On the office's own authority, the AG explained that chapter 417 governs the State Fire Marshal's Office (Tex. Gov't Code Ann. §§ 417.001-.010 (West 2012)), making the fire marshal the chief investigator of arson and suspected arson and assigning duties to investigate fires, report findings, and turn over evidence to prosecutors, along with research and improvement of fire protection (Tex. Gov't Code Ann. § 417.004(a)-(d); § 417.007(a), (c), (d), (e) (West 2012)). Although chapter 417 is silent about old or closed cases, the Legislature is presumed to intend an agency to have whatever power is reasonably necessary to perform its express duties (Pub. Util. Comm'n of Tex. v. GTE-Sw., Inc., 901 S.W.2d 401, 407 (Tex. 1995)). The AG concluded the office is not without authority to investigate an arson case merely because it is old or closed, and that the Commission's September 1, 2005 limit does not reach the office's independent chapter 417 authority. Questions about the admissibility or weight of the Workgroup's findings in a pending case were left to the court.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 38.01, § (4)(a)(3) (West Supp. 2013) (Forensic Science Commission investigative authority)
• Tex. Code Crim. Proc. Ann. art. 38.01, §§ (4)(a)(3), (b-1) (2013 amendment adding unaccredited laboratories)
• Tex. Gov't Code Ann. §§ 417.001-.010 (West 2012) (State Fire Marshal's Office)
• Tex. Gov't Code Ann. § 417.004(a)-(d) (West 2012) (fire marshal as chief arson investigator; duties)
• Tex. Gov't Code Ann. § 417.007(a), (c), (d), (e) (West 2012) (investigation of fires; reports; evidence to prosecutors)
• Tex. Gov't Code Ann. § 417.002 (West 2012) (office under the Texas Department of Insurance)
• Act of May 20, 2013, 83d Leg., R.S., ch. 782, 2013 Tex. Gen. Laws 1994, 1996

Cases:

• Pub. Util. Comm'n of Tex. v. GTE-Sw., Inc., 901 S.W.2d 401, 407 (Tex. 1995)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0866 (2011)
• Tex. Att'y Gen. LO-92-39 (1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1048
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1048.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 4, 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 investigation into closed arson cases and "forensic analysis [performed] before September 1, 2005."[1] 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? Id.[2]

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 CRIM. 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 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] Id. 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. Id. 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. Id. 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 SFMO.[4] See Brief from Sara Waitt, Gen. Counsel, Tex. Dep't of Ins. 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 of the 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." Id. § 417.004(a). In addition, the fire marshal "is the chief investigator in charge of the investigation 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. Id. § 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 417 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. Id. § 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. Util. 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 of that 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 sixth 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]

SUMMARY

Neither article 38.01 of the 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,

GREG ABBOTT
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

[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 findings 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.

[3] Article 38.01, section (4)(a)(3) was amended in 2013 and now expands the investigative authority of the 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).

[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. LO-92-39 (1992) at 1.