THE ATTORNEY GENERAL 

OFTEXAS 

JOHN IA. BILL 

AI~~~N.TExAR 18711 

A¶-roRNIcy CSENWAI. 

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, a Laredo 

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 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 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 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 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 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’ 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 

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 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 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 ordinarily 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 department upon orders of a superior officer in the department 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