# THE ATTORNEY GENERAL OFTEXAS

JOHN IA. BILL 

### AI~~~N.TExAR 18711 A¶-roRNIcyCSENWAI. July 31, 1973

The Honorable Marie Hudson Winters Firemens’ Pension Commissioner 503-F Sam Houston State Office Bldg. Austin, Texas 78701 Opinion No. H- 76 Re: Whether or not, aLaredo

fireman who was killed or-disabled while performing fire fighting duty in Nuevo Laredo would qualify under the provisions 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 inand/or in consequence of, the performance of his duty

. . .” Similar language appears elsewhere inthe Act 

### as acondition precedent to benefits under the Act. The language has been construed inBoard of Firemens’ Relief and Retirement 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 itwas not the intention of the Legislature to insure afireman against all injuries that might be sustained

p. 348The Honorable Marie Hudson Winters, page 2 (H-76)

during the period ofhis employment. ”

. . . the purpose of the Act is to provide afund for aid to those who experience a disability having its origin inthe work being done as afireman

. . . I’ (242 S.W. 2d at 182) InAttorney 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. Itwas the conclusion of th.eOpinion that:

I’A city fireman engaged inassisting inthe exterminating of afire outside of the City of Texarkana. Texas. beyond the state line inthe 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 ofmunicipal corporations under our laws, confining the exercise of their,powers to their geographic areas. Article 11, $4and $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 Andy to preserve and enforce the good government, order and security of the city and its inhabitants. ” Although there is no express statuto’ry provision authorizing afire department of a city to fight afire outside of the limits ofthat city, we are of the opinion that the conclusion stated i,nAttorney General Opinion V-775 (1949) is valid. Where those eritrusted with making such ,decisibns’decide’ it is inthe 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 toweigh

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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 adecision has been made andhas been communicated to the firemen, they should be entitled to rely upon itwhile engaged intheir fire fighting duties. The phrase, “course of employment”, as used in the Workmens’ Compensation 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 recognized and established duties, will be deemed to be operating within the course ofhis employment, regardless ofwhether those duties actually are being performed for avalid purpose ofhis employment. Maryland Casualty Co. v. Levine, 67 F. 2d 816 (CCA %h, 1933); Lehers v. Federal Underwriters Exchange, 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 tobe liable to athird person for the acts ofhis **servant** ifthat servant is acting within the scope ofhis employment, even though performing the duties ina wrongful manner. Sears, Roebuck & Co v. Jones, 303 S.W. 2d432 (Tax. Civ. App. , Waco, 1957, ref., n.‘r. e. ). This is true even ifthe master’s orders constitute anunlawful 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 amaster tobe 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, 217S.W. 253 (Tex. Civ. App., San Antonio, 1920). Therefore, to answer your question, it is our opinion that afireman 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 ordinarily served by the fire departmelt, who, while inMexico, receives injuries as a result of his activities infighting the fire, receives those injurces “in and/or inconsequence of the performance of his duty‘I, and is entitled to apension if all other requirements are met.

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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 department upon orders of a superior officer inthe department or inthe city government, has the right to assume that the decision to send him is rightfully made andwill be entitled to the benefits of the Firemens’ Relief and Retirement Law ifhe sustains injury while so engaged. Very truly yours,

Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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