May 8, 1968

Mrs. Marie Winters Opinion No. M-231 Firemen's Pension Commissioner 1010 Sam Houston Building Re: Whether paid firemen opAustin, Texas 78701 erating an emergency ambulance service as a

Dear Mrs. Winters: regular operatingportion of the Fire Department are covered for disability benefits under Section 7 of the Firemen's Relief.and Retirement Law in the event of injury on such ambulanceduty,.and related question.
you have requested an opinion of this office on the followingquestion:

"Maywe have your official.,ruling on whether or not paid firemen operating an emergency ambulance service as a regular operatingportion of the Fire Department would be covered for disabilitybenefits under Section 7 of the Firemen's Relief and RetirementLaw in the event they were injured.onambulanceduty - and whether or not theirwidows or.beneficiarieswould be covered under Section 12." By describing the ambulance service as "emeraency'in nature,we presume that it is to function onlywhen it becomes the duty of the firemen to provide this necessary service,

-1126-Mrs. Marie Winters,~page2 (M-231)

House Bill 68,Acts 55th Legislature,Regular Session, 1957, Ch. 275, p. 617, codified as Section 7 and Section 12 of Article 6243e,Vernon's Civil Statutes, read, in part, as follows

#Sec. 7. Whenever a person servins as an active firemandulv enrolled in anv reoularlv active fire department in anv city or town in the State having a population of less G, fivehundred thousand (500,000)according to the lastpreceding Federal Census,which city or town is now within, or may hereafter corm withinthe provisions of thisAct, shall become nhvsicallv or mentally disabledws in and/or in conseauence of, the performance ofhis duty'.,said Board of Trustees shall upon his request, orwithout such request if it shall deem proper and for the good of the department, retire .suchperson from active service either upon total or partial disability as the case inay'~warrant

. . .* (Emphasisadded.) Sections 4 and 5 ofArticle XI of the Constitution of Texas authorize cities and towns to be incorporatedas political subdivisions of the state, subject to such limitations as the Legislaturemay prescribe and provided that the charter or ordinances passed under ,authorityof the charter'complywith the Constitution of the State of Texas and all general laws enacted by the Legislature.

Article 1011,Vernon's Civil Statutes, reads, in part, as follows:

"TheCity Council, or other governing body shall have power to pass, publish,amend or repeal all ordinances,rules and police regulations,not contrary to the Constitution of this State, for the good government,peace and order of the City

. . ." Article 1175,Vernon's Civil Statutes, reads, in part, as follows:

-1127-***s.** Marie Winters, page 3 (M-231)

"Citiesadopting the charter or amendment hereunder shallhave ~fullpower of local self-government,and among the other powers that may be exercisedby any such city the followingarehereby enumerated for greater certainty:
II

. . . "27. To provide for police and fire departments.
-28. To provide for a health department and the establishment of rules and regulations protecting the health of the city and the establishment of quarantine stations, and pesthouses, emergencyhospitals and hospitals,

. . . II

. . . "34. To enforce all ordinances necessary to protecthealth, life and property, and to prevent and summarily abate and remove all nuisances and to preserve and enforce the good government, order and security of the city and its inhabitants."
Cur Courtshave held that under authority ofArticles 1011 and 1175 that the State ,hasdelegated to municipalitiesunder the police power, the right to protect thehealth, safety.morals and generalwelfare of their citizens by regulations that are reasonable and necessary for that purpose, subject to limitations imposedby the Constitution and statutes enactedby the Legislature 40 Tex.Jur.2d 12, Municipal Corporations B 321,,322: Keel v. Pulte Comm. of Appeals, Sec.A (19281, 10 S.W.2d 694; tombardov. Dallas, 124 Tex. 1, 73 S.W.2d 475: City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937);12 Tex.Jur.2d 408 8 62, 63 and 64.

The health and safety of~the public is of primary importance to all ordered forms of government. In the preservation

-1128-Mrs. Marie Winters, page 4 (X-231)

and protection of the publichealth, every sovereignmay, in the exercise of the police power, enact laws directed to that purpose. The Legislaturemay delegate powers relating to the publichealth to various agencies or subdivisions of the State. 28 Tex.Jur.2d 9, Health R 1, 2; 39 C.J.S. 811, Health E!2.

The provisions ofArticles 1011 and 1175 and Sections 4 and 5 ofArticle XI of the Constitution plainly show that cities and towns, duly incorporated,are chargedwith the important gwernmental function of the preservation and protection of the publichealth within those towns and cities which is within the police power of the state.

InAttorney General's OpinionC-772 (1966),we held that pursuant to the general powers of the county to expend general revenues of the county in behalf of the publichealth and sanitation under Article 4418f,Vernon's Civil Statutes, the countymay operate and maintain an ambulance service within the county. We have also held that the Tarrant County Hospital District, under the provisions of Article 4494n and Section 4 of Article XI of the Constitution, is charged with the preservation and promotion of the publichealth within the district under the police power of the state, and is authorized to acquire and operate an ambulance servicewithin the district. Attorney General's Opinion C-759 (1966).

In view of the foregoing,you are hereby advised that the governingbodies of cities and towns, pursuant to Section 4 and 5 ofArticle XI of the Constitution of Texas and Articles ( 1011 and 1175 have the authority under the broad police powers granted them by the State to perform "emeroencv"ambulance service within their city in order to protect the health, safety and generalwelfare of the citizens of the city. Any paid fireman performing "emerqencv"ambulance service as a duty of the fire departmentwould be entitled to disabilitybenefits under Section 7 ofArticle 6243e in the event he was injuredwhile acting in the scope of such emergency ambulance service. This statute must be given a liberal construction in favor of the fireman. * of Firemen'sRelief & Retirement Fund Trustees of Houston v. Mark% 237 S.W.Zd 420 (1951),rev. on other grounds, 150 Tex. 433, 242 S.W.2d 181.

-1129-~rs. Marie Winters, page 5 (M-231)

SUMMARY Paid firemen performing "emerqencv"ambulance services as a duty of the fire department would be eligible for thebenefits of Section 7 and Section 12 of Article 6243e.Vernon's Civil Statutes. 

# “YPtrulyyours,

ORD C. MARTIN General of Texas Preparedby William J. Craig Assistant Attorney General
APPROVED: OPINIONCCMMITTEE Hawthorne Phillips,Chairman Kerns Taylor, Co-Chairman John Banks James Quick Dyer Moore, Jr. Bill Allen
A. J. CARUBBI, JR. BxecutiveAssistant

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