Untitled Texas Attorney General Opinion ( 1973 )

THE ATTORNEY GENERAL
OFTEXAS
JOHN IA. BILL
AI~~~N.TExAR 18711
A¶-roRNIcy CSENWAI.
July 31, 1973
The Honorable Marie Hudson Winters Opinion No. H- 76
Firemens’ Pension Commissioner
503-F Sam Houston State Office Bldg. Re: Whether or not, a Laredo
Austin, Texas 78701 fireman who was killed or- dis-
abled while performing fire
fighting duty in Nuevo Laredo
would qualify under the pro-
visions of the Firemens’
Pension Law as set out under
Vernon’s Revised Civil
Dear Commissioner Winters: Statutes 6243e as amended.
Your request for our opinion poses a question specifically involving
the firemen of Laredo, Texas, but possibly of more general interest. You
state that from time to time officials from the City of Nuevo Laredo, in
Mexico,request that Laredo firemen and fire fighting equipment be sent
into Mexico to assist in extinguishing conflagrations.
Article 6243e, Vernon’s Texas Civil Statutes creating the Firemens’
Relief Pension Fund, provides in its $7 for the retirement with a disability
pension of firemen in certain cities who !rshall become physically or mentally
disabled while in and/or in consequence of, the performance of his duty . . . ”
Similar language appears elsewhere in the Act as a condition precedent to
benefits under the Act.
The language has been construed in Board of Firemens’ Relief and Retire-
ment Fund Trustees of Houston v. Marks, 242 S.W.2d 181 (Tex. 1951) to
require that the disability, to be pensionable, be causally connected with the
performance of the fireman’s duties and that it was not the intention of the
Legislature to insure a fireman against all injuries that might be sustained
p. 348
The Honorable Marie Hudson Winters, page 2 (H-76)
during the period of his employment. ” . . . the purpose of the Act is to
provide a fund for aid to those who experience a disability having its origin
in the work being done as a fireman . . . I’ (242 S. W. 2d at 182)
In Attorney General Opinion V-775 (1949). this office considered the
question of coverage under the Act of firemen from Texarkana, Texas,
injured while fighting fires in Texarkana, Arkansas. It was the conclusion
of th.e Opinion that:
I’A city fireman engaged in assisting in the exterminating
of a fire outside of the City of Texarkana. Texas. beyond the
state line in the City of Texarkana, Arkansas, would be covered
by the Texas Firemens’ Pension Statute for an injury received
by him if such activities were reasonably necessary for the
proper discharge of his duties as a Texarkana. Texas, fireman. ”
(Emphasis added)
The decision is based upon the limited powers of municipal corporations
under our laws, confining the exercise of their,powers to their geographic
areas. Article 11, $ 4 and $ 5. Constitution of the State of Texas. Article
1175. V. T. C. S.
Among the specific powers given to home-rule cities by the last cited
statute is the power to provide for police and fire departments and:
“To enforce all ordinances necessary to protect
health, life and property, and to prevent and summarily
zabate and remove all nuisances Andyto preserve and
enforce the good government, order and security of
the city and its inhabitants. ”
Although there is no express statuto’ry provision authorizing a fire
department of a city to fight a fire outside of the limits of that city, we are
of the opinion that the conclusion stated i,n Attorney General Opinion V-775
(1949) is valid. Where those eritrusted with making such ,decisibns’decide’
it is in the interest of good government and of necessity to protect health,
life,and property, etc., for the f!ire department of one city to travel outside
its limits into- sotie other area, firemen while so engaged are acting within
their duties. It should not be the burden of each individual fireman to weigh
p. 349
’
.
The Honorable Marie Hudson Winters, page 3 (H-76)
the decision made by his superiors and to determine whether fighting a
particular fire falls within the scope of the city’s authority. Once a decision
has been made and has been communicated to the firemen, they should be
entitled to rely upon it while engaged in their fire fighting duties.
The phrase, “course of employment”, as used in the Workmens’ Compen-
sation Act, Article 8306, et seq. V. T. C. S., presents problems similar to
that of “performance of duty” under Articl,e 62438. $ 7. The courts have
ruled that an employee who is instructed by his superior to perform recog-
nized and established duties, will be deemed to be operating within the course
of his employment, regardless of whether those duties actually are being
performed for a valid purpose of his employment. Maryland Casualty Co. v.
Levine, 67 F.2d 816 (CCA %h, 1933); Lehers v. Federal Underwriters Ex-
change, 79 S.W.2d 925 (Tex. Civ. App., Beaumont, 1935). affirmed 120 S.W.2d 791
(Tex. 1938).
Under the doctrine of respondeat superior, the master is deemed to be
liable to a third person for the acts of his servant if that servant is acting
within the scope of his employment, even though performing the duties in a
wrongful manner. Sears, Roebuck & Co v. Jones, 303 S.W. 2d432 (Tax.
Civ. App. , Waco, 1957, ref., n.‘r. e. ). This is true even if the master’s
orders constitute an unlawful or unusual authorization. Burnett v. Oechsner,
50 S.W. 562 (Tex. 1899); Heitkamp v. Krueger, 265 S.W.2d 655 (Tex. Civ. App.,
Austin, 1954, ref., n. r. e. ).
For a master to be responsible for his servant’s own injuries, his servant
must be acting within the scope of his employment, Ywhich is determined by
what he was employed to perform and what, with the knowledge and sanction
of his employer, he actually did perform. Ga1veston.H. & S. A. Ry. Co. v.
Bremer, 217 S.W. 253 (Tex. Civ. App., San Antonio, 1920).
Therefore, to answer your question, it is our opinion that a fireman of
Laredo, Texas, or of any other Texas city ordered by his superiors to go to
Nuevo Laredo or any other municipality outside the terrirorial limits ordin-
arily served by the fire departmelt, who, while in Mexico, receives injuries
as a result of his activities in fighting the fire, receives those injurces “in and/or
in consequence of the performance of his duty ‘I, and is entitled to a pension if
all other requirements are met.
p. 350
I -
_ .
The Honorable Marie Hudson Winters, page 4 (H-76)
SUMMARY
The duties of firemen are not defined by statute and
must be determined by the good faith judgment of their
superiors. A fireman injured outside the territorial
limit of the city primarily served by the fire depart-
ment upon orders of a superior officer in the depart-
ment or in the city government, has the right to assume
that the decision to send him is rightfully made and will
be entitled to the benefits of the Firemens’ Relief and
Retirement Law if he sustains injury while so engaged.
Very truly yours,
Attorney General of Texas
DAV ID M. KENDALL, Chairman
Opinion Committee
p. 351