SRC-SEW C.S.S.B. 1167 77(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 1167
77R8857 MXM-FBy: Madla
Intergovernmental Relations
3/28/2001
Committee Report (Substituted)


DIGEST AND PURPOSE 

Under current law, an emergency services district (ESD) is a special
district, established under Article III, Section 48-e (Emergency Services
Districts), Texas Constitution, and Chapter 775 (Emergency Services
Districts), Health and Safety Code, to provide health and safety related
services to persons and property within its boundaries.  C.S.S.B. 1167 sets
forth certain provisions relating to emergency services districts, such as
eliminating ambiguity regarding qualification of a district board member;
allowing for a district fire marshal and providing for the designation of
such a position as a peace officer; expanding and clarifying the right of a
district to charge for a hazardous material spill; and clarifying various
other ambiguous or conflicting provisions existing in the statutes.   

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 775.031(c), Health and Safety Code, to prohibit
an emergency services district, except as provided by Subchapter F, from
commissioning a peace officer or employing a person as a peace officer. 

SECTION 2.  Amends Section 775.034, Health and Safety Code, to set forth
guidelines regarding board member's eligibility. 

SECTION 3.  Amends Section 775.035, Health and Safety Code, by adding
Subsection (i), as follows: 

(i) Provides that Chapter 146C (Write-In Candidate in City Election),
Election Code, applies to a write-in candidate for emergency services
commissioner under this section in the same manner it applies to a write-in
candidate for a city office under that subchapter. 

SECTION 4.  Amends Section 775.036(b), Health and Safety Code, to authorize
the board to adopt and enforce a fire code that does not conflict with a
fire code adopted by any county, rather than another political subdivision,
that also contains within its boundaries any portion of the land contained
in the district.  Prohibits the board of a district located wholly within a
county with a population of three (rather than 2.4) million or more from
adopting a fire code or a fine for a violation of the district's fire code
unless the commissioners court of the county consents to the adoption of
the code or fine. 

SECTION 5.  Amends Chapter 775, Health and Safety Code, by adding
Subchapter F, as follows: 

SUBCHAPTER F.  FIRE MARSHAL

Sec.  775.101.  CREATION.  Authorizes a district to create the office of
district fire marshal if  a county in which the district is located does
not have a county fire marshal.  Requires the district to appoint an
individual to serve in the office of fire marshal. 

 Sec.  775.102.  TERM.  Provides that the fire marshal serves a two-year
term. 

Sec.  775.103.  BOND.  Requires the fire marshal to post a bond in the
amount required by the district and conditioned on the faithful and strict
performance of the fire marshal's duties under this chapter. 

Sec.  775.104.  CONFLICT OF INTEREST.  Prohibits the fire marshal from
having a direct or indirect financial interest in the sale of fire-fighting
equipment or being engaged in the business of fire insurance. 

Sec.  775.105.  ADMINISTRATIVE SUPPORT.  Authorizes the district to provide
facilities, equipment, transportation, employees, and other services and
assistance to the fire marshal, including investigators. 

Sec.  775.106.  JURISDICTION.  Prohibits the fire marshal, except as
provided by Section 775.107 or 775.115, from exercising the powers granted
under this subchapter in certain territories.  Provides that this
subchapter does not change or otherwise limit the authority of any state
agency to prevent and extinguish forest and grass fires. 

Sec.  775.107.  TRANSFER OF JURISDICTION.  Provides that this section only
applies under certain conditions.  Provides that, not later than the 30th
day after the creation of the county or municipal fire marshal, the
jurisdiction of the district fire marshal in that county or municipality
ceases.  Requires the new county or municipal fire marshal to assume
control over any pending investigations, court proceedings, or other
matters being handled by the district fire marshal in the county or
municipality.   

Sec.  775.108.  GENERAL POWERS AND DUTIES.  Sets forth guidelines
concerning the powers and duties of the fire marshal. 

Sec.  775.109.  INVESTIGATIONS.  Requires the fire marshal to begin an
investigation within 24 hours after notification of a fire.  Provides that
the 24-hour period does not include Sunday. Authorizes the fire marshal to
investigate attempted fires. 

Sec.  775.110.  INSPECTION.  Authorizes the fire marshal, at any time of
day, to enter and inspect certain properties. 

Sec.  775.111.  INSPECTION FOR FIRE HAZARDS.  Defines "fire hazard."
Authorizes the fire marshal, in the interest of safety and fire prevention,
to inspect for fire hazards certain structures, appurtenances, fixtures, or
real properties.  Authorizes the fire marshal, if the fire marshal
determines the presence of a fire hazard, to order the owner or occupant of
the premises to correct the hazardous situation. 

Sec.  775.112.  RECORDS.  Requires the fire marshal to keep a record of
each fire that the fire marshal is required to investigate.  Requires the
record to include the facts, statistics, and circumstances determined by
the investigation, including the origin of the fire and the estimated
amount of the loss. 

Sec.  775.113.  ADDITIONAL INVESTIGATION POWERS.  Authorizes the fire
marshal, if the fire marshal determines that further investigation of a
fire or of an attempt to set a fire is necessary, to perform certain
functions.  Authorizes the fire marshal, as part of an investigation, to
perform certain functions. 

 Sec.  775.114.  INSURANCE.  Provides that an action taken by the fire
marshal in the investigation of a fire does not affect the rights of a
policyholder or of an insurer regarding a loss caused by the fire.
Prohibits the results of an investigation by the fire marshal of a fire
from being admitted in evidence in the trial of a civil action brought
under an insurance policy. Prohibits the results of an investigation by the
fire marshal of a fire from being admitted in evidence in the trial of a
civil action brought under an insurance policy.  Prohibits statements made
by certain persons to the fire marshal or marshal's representative
regarding the cause of a fire from being admitted in evidence or made the
basis of a civil action for damages. 

Sec.  775.115.  COOPERATION WITH OTHER FIRE MARSHALS.  Requires the
district fire marshal to cooperate with the state fire marshal to conduct
certain activities and investigations.  Requires the district fire marshal
to aid or conduct an investigation in a municipality or a county if
requested by the municipality or the county. 

Sec.  775.116.  LIMIT ON LIABILITY.  Provides that the fire marshal and any
district employees assisting the fire marshal are not liable for any acts
or omissions in the performance of their duties, except for gross
negligence or wilful malfeasance. 

Sec.  775.117.  ENFORCEMENT.  Requires the fire marshal to file in court a
complaint charging arson, attempted arson, conspiracy to defraud, or any
other related crime against a person the fire marshal believes to be
guilty.  Requires the fire marshal to file charges in court against a
witness who refuses to cooperate with the investigation. 

Sec.  775.118.  SERVICE OF PROCESS.  Authorizes a constable or sheriff to
serve process under this subchapter.  Requires the process to be signed by
the fire marshal. 

Sec.  775.119.  CRIMINAL PENALTY; CONTEMPT OF FIRE INVESTIGATION. Provides
that a person commits an offense if the person is a witness in connection
with an investigation by the fire marshal and meets certain other
requirements.  Provides that an offense under this section is a misdemeanor
punishable by a fine of not more than $25. 

Sec.  775.120.  CRIMINAL PENALTY; FAILURE TO COMPLY WITH ORDER. Provides
that the owner or occupant of real property who is subject to an order
issued by the fire marshal commits an offense that is a Class B misdemeanor
if the person fails to comply with the order and that each failure to
comply with an order is a separate offense. 

SECTION 6.  Amends Chapter 775, Health and Safety Code, by adding
Subchapter G, as follows: 

SUBCHAPTER G.  HAZARDOUS MATERIALS.  

 Sec.  775.151.  DEFINITIONS.  Defines "hazardous material" and
"responsible party." 

Sec.  775.152.  HAZARDOUS MATERIALS SERVICE.  Authorizes a district to
provide hazardous materials services, including a response to an incident
involving hazardous material that has been leaked, spilled, or otherwise
released, or abandoned. 

Sec.  775.153.  FEE FOR PROVIDING HAZARDOUS MATERIALS SERVICE; EXCEPTION.
Authorizes a district, or a person authorized by contract on the district's
behalf, to charge a reasonable fee to a responsible party for responding to
a hazardous materials service call.  Provides that an individual who is a
responsible party does not have to pay the fee under certain conditions. 

Sec.  775.154.  EXEMPTION FOR GOVERNMENTAL ENTITIES.  Provides that this
subchapter does not apply to hazardous materials owned or possessed by a
governmental entity. 
 
SECTION 7.  Amends Article 2.12, Code of Criminal Procedure, as amended by
Chapters 90, 322, 882, and 974, Acts of the 76th Legislature, Regular
Session, 1999, to redefine what constitutes a peace officer. 

SECTION 8.  Effective date: September 1, 2001.



SUMMARY OF COMMITTEE CHANGES

SECTION 1.  No change.

SECTION 2.  No change.

SECTION 3.  No change.

SECTION 4.  Amends As Filed S.B. 1167, Section 775.036(b), Health and
Safety Code, to authorize the board to adopt and enforce a fire code that
does not conflict with a fire code adopted by any county, rather than
another political subdivision, that also contains within its boundaries any
portion of the land contained in the district.   

SECTION 5.  Omits original proposed SECTION 5 amending Section 775.0741(a)
and (c), Health and Safety Code.  Redesignates text from original SECTION 6
as SECTION 5.  Amends redesignated proposed Section 775.106 to provide that
this subchapter does not change or otherwise limit the authority of any
state agency to prevent and extinguish forest and grass fires. 

SECTION 6.  Redesignates text from original SECTION 7 as SECTION 6.  No
changes in text. 

SECTION 7.  Redesignates text from original SECTION 8 as SECTION 7.  No
changes in text. 

SECTION 8.  Redesignates text from original SECTION 9 as SECTION 8.  No
changes in text.