### THE ATTORNEY GEXERAL OF TEXAS
July 15, 1987

HoaorableBarry L. Macha CriminalDistrictAttorney Wichita County Courthouse Wichita Falls, Texas 76301 OpinionNo. m-748

Re: Liabilityof a county for acts committedbymembers of a volunteer firedepartment

DearMr. Macha:

You ask several questions touching on the liability of a county for the acts of others furnishing fire fighting and fire protection services in the county. Your request encompasses the following issues:

1. Who can be considered to be 'an agent of

the county' when furnishing fire services in the county?

2. When is a county liable for the acts of volunteer fire fighting departments furnishing fire service in the county?

3. What is the extent of a county's liability for the intentional acts of its agents furnishing fire service in the county?

Counties are permitted to undertake only those activities expressly permitted by the constitution or by statute, or which necessarily can be supportedby an implied grant of authority. Tex. Const. art. V, 118; Canales V. Laughlin, 214 S.W.Zd 451, 453 (Tex. 1948);Anderson V. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941);Attorney GeneralOpinionNos. JM-697 (1987);JM-350 (1985).

Counties specifically are authorized by statute to provide fire servicesdirectly. V.T.C.S. art. 2351a-1. This statute also permits counties to contractwith cities, towns,andvillages in the county or in adjoining counties, for the use of fire trucks and other fire fighting equipment to furnish fire service in areas of the county outside the limits of any municipality. Id. By implication, this specific grant of authority to contract forequipment also includes the power to contract for the personnel necessary to operate the

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equipment. Attorney General Opinion Nos. V-1275 (1951); O-4326 (1942).

Counties are also permitted to contract with incorporated volunteer fire departments located within the county to furnish fire service for areas not within the corporate limits of a city or town. Article 2351a-5,V.T.C.S. The terms of such contracts are determined by negotiation between the volunteer fire department and the county, and the volunteer fire fightersmay be paid from the general fund of the county. Id.

- If a county contracts with a city, town, or village for the provision of fire service, then article 2351a-1provides that the acts of the employeesof the city, town,or village furnishingfire service pursuant to such a contract "shall be considered the acts of the count[y] in all respects." In a previous opinion, we stated that article 2351a-1 fixes the potential for the liability of the parties to a contract between a county and alcity permitted by the statute. Attorney General Opinion E-279 (1974). There,.we held that a county would be liable for the acts of a city employee committedwhile the city was fulfilling a contractual obligation to the county to fight fires.

Article 2351a-5, on the other hand, does not create an explicit principal-and-agent relationship between the county contracting for fire serviceand thevolunteer firedepartment furnishingthe service. Although a casual reading of article 2351a-5may create the impression

1. article article We note that in Attorney General Opinion H-279 we compared

2351a-1with section 4(g) of the Interlocal Cooperation Act, 4413(32c),V.T.C.S.,which provides:
(g) When governmental units enter a contract or agreement for the furnishing of fire protection services,any civil liabilityrelated to the furnishing of those services is the responsibilityof the governmental unit which would be responsible for furnishing the servicesabsent the contractor agreement.

As this office said in Attorney General Opinion E-279, the two statutes must be construed together. Article 2351a-1 is the more specific statute and must prevail over the general provisions of the InterlocalCooperationAct. City of Baytown v. Angel, 469 S.W.Zd 923 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.); Commercial Standard Fire and Marine Co. v. Commissioner of Insurance, 429 S.W.Zd 930 (Tex.Civ. App. - Austin 1968, no writ); 53 Tex. Jur. 2d, Statutes 4161 (1964). ,

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that such a volunteer fire department contractin.:with a county always will be an independent contractor, and thusbear the sole responsibility for its acts, we are unable to say that such necessarilywill alwaysbe the case.'
Instead,we believe that the questionof assigning liabilitywhen fire services are provided by an incorporatedvolunteer fire department pursuant to a contractwith a countywill alwaysbe one of fact. Whether liabilitywill be fixed on thevolunteer fire departmentalone
as an independent contractor or placed on the county as a principal responsible for the acts of its agent volunteer fire departmentwill depend30nan applicationof theprinciplesof the law of agency to the facts. As a general rule, of course, the precise legal impact of a relationshiparising out of a contractwill be construedaccording to the realities of a situation, and not simply by reference to the formal recitalsused in the contract (i.e., "X volunteer fire department is an independent contractor.") We do not decide questions of fact,.norarewe suited to adviseparties to potential contracts negotiatedpursuant to article 2351a-5how to structuretheirbargains to reach a desired result in the law.

You express concern that certain language in the provisions of article 2351a-1 may create unlimited liability on the part of the county for the acts of anyonewho provides 3 fire service,whether pursuant to a contract authorized by statute, as an officious intermeddler or as a volunteer. Your concern is engendered by the somewhatawkwarddraftingof article 2351a-1. Specifically,the exact

2. We do not consider those cases where a contractingvolunteer fire departmentis truly an independentcontractorwith sole liability for its acts,butwhere an injuredparty seeks tohold the contracting county liable on the theory that it is responsible for the negligent selection of an independent contractor who causes an injury. See enerally Note, :1916). Torts of an Independent Contractor, Yale L. J. 861

Nor dowe address the applicabilityof a rule of agencywhich provides that contracting parties are responsible for acts of independent contractors when the work to be performed pursuant to contract can be classified as inherently dangerous. Restatement (Second),of Agency 0416.

3. We note thatvolunteer fire fightersand fire departmentsare not liable for "damage toproperty resulting from

. . .reasonableand necessaryaction in fightingor extinguishinga fire on theproperty." Civ. Prac. and Rem. Code 578.001.

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meaning of the fourth sentenceof the article, as emphasizedbelow, is problematical:

The Commissioners Court of any county of this State shall also have the authority to enter into contracts with any city, town or village within the county and/or adjoining counties, upon such terms and conditions as shall be agreed upon between the Commissioners Court and the governing body of such city, town orvillage, for the use of the fire trucks and other fire-fightingequipment of the city, town or village. It is specifically Provided that the acts of any person or persons while fighting fires, traveling to or from fires,
or in anymanner furnishing fireprotection to the citizens of a county outside the city limits of any city, town or village, shallbe considered as the acts of agents of the county in all respects, notwithstanding such person or persons may be regular employees or firemen of a city, town or

vNo city, town orvillagewithin a county and or adjoiningcounties shallbe held liable for the acts of any of its employeeswhile engaged in fighting fires outside the city limitspursuant to any contract theretofore entered into between the Commissioners Court of the county and the governing body of the city, town or village. (Emphasisadded).

V.T.C.S. art. 2351s-1, 01.

At first blush, the fourth sentence of article 2351a-1 seems to depart from the tenor of the rest of the provision: the questioned language appears to create a liability on the part of the county to thewholeworld for 5 act in any way connectedwith furnishing fire service, includingacts donewhile travelingto and from fires.

Reference to the canons of statutory construction provides several ruleswhich help to resolve the problem posed by the somewhat confusing sentence. First, legislation is to be interpretedso as to fairly meet the intent of the legislature, Calvert v. Kadane, 427 S.W.Zd 605 (Tex. 1968). and statutesmust be given a fair, rational, and sensible construction. Empire Gas and Fuel Co. v. State, 47 S.W.2d 265 (Tex. 1932). The precise intent of the legislature in drafting article 2351a-1 is not difficult to divine: to permit counties to furnish fire service directly or pursuant to a contract with certain city, town, or village. We note that the caption to article 2351a-1as originallyenactedread:

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An Act authorizing the Commissioners Court in all counties of this State to provide fireprotection and fire fighting equipment for the citizens of the county outside of any city, town, or village therein,eitherby thepurchase andmaintenanceby the county of the necessary equipment, or by entering into contractswith the governingbody of cities, towns, or villages located within the county and/or adjoining counties for the use of the fire fighting equipment of the city, town, or village;providing that the operation of any fire fighting equipment outside the city limits of any city, town, orvillage,pursuant to contractswith the CosanissionersCourt of the county, shall be considered as operations of the countyi and all persons engaged in such operations, notwithstanding theymay be employeesof a city, town, or village, shall be considered as agents for the county in all respects;providingpurchase of fire fightingequipmentmust be authorizedby election; and declaring an emergency. (Emphasisadded).

Acts 1941, 47th Leg., ch. 360, at 567. The caption of a legislative act may be considered as a guide to the purpose of the legislation. Anderson v. Penix, 161 S.W.Zd 455, 459 (Tex. 1942). The caption to article 2351a-1 as originally enacted gives a clear view of the ultimate meaning of the section. It convincingly demonstrates that ~the legislature intended for the fourth sentence to relate to the parties to a contract executedpursuant to the statute.
Second, if the legislature intended to subject a county to the very real possibility of unlimited liability for the acts of anyone providing fire service, then surely the statute would do so plainly and forcefully. To say that the language of the fourth sentence of article 2351a-1 imposes such liability would be to abolish the county'sdefense of sovereign immunity in a large number of instances and in a strikinglycasual fashion. Legislation in derogationof the doctrine of sovereign immunity should be strictly construed, and legislative intent towaive the doctrine shouldbe clear. and applied only to cases clearlywithin the legislature'sintent. Cf. Dobbinsv. Texas Turnpike Authority, 496 S.W.Zd 744, 748 (Tex.Tv. App. - Texarkana 1973,writ ref'dn.r.e.).
Finally, to say that the troublesome language in the provision here imposesalmostunlimited liability-- in derogationof coxanonlaw rules such as those relating to sovereign immunity -- would be to ascribe to the legislation an unreasonable, unjust, and absurd purpose, something contrary to the acceptable rules for divining

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legislative intent. State Highway Department v. Go=, 162 S.W.Zd 934, 936 (Tex. 1942).
Thus,we believe that the seeminglyunlimitedphrase "the acts of any person" in the fourth sentence of article 235a-1 can only be understood to refer to acts done pursuant to the kind of contracts authorized between a county and named entities in the first part of the provision. Our conclusion is buttressed by additional language found elsewhere in the same sentence for the final clause of the fourth sentencereads "notwithstandingsuchpersons [the "anypersons" referenced in the firstpart of the sentence]may be regular employees
or firemen of a city, town, or village." Our interpretation of the sentence is all the more forcefully supported by the language of the last sentence in article 2351s-1,which clearly appears to have been written to rewove even the slightest possibility for the implication of liability to cities, towns, and villages furnishing fire services to a county pursuant to a statutorily authorized contract. Article 2351a-1must be construedas a whole, and all of the language employed is to be viewed together. Attorney General Opinion Nos. JM-670 (1987);M-650 (1970);53 Tex. Jur.Zd Statutes 0160 (1964). When taken together, the consecutive sentencesof article 2351a-1 limit andmake most certain the key ramificationof the explicit agency relationship createdby the statute: countiespotentially are liable for the acts of city, town. or village furnishingfire servicepursuant to contract under the statute. A county is not liable for the acts of anyone else, includingvolunteerswho furnish fireprotection service.

You also ask whether a county may be held liable for the intentional acts40f others permittedby statute to furnish fire service to the county. A county's liability for the acts of its agentsmust be established by reference to the common law and to statute. The doctrine of sovereign immunitybars suits against counties for the

4. Our consideration of this issue is limited to intentional tortiousbehavior governed by state comaon law or statutory law. We express no view on the possible application of certain federal civil rights laws to intentionalconductby government employeesor agents. See Frels and Homer, The Interrelationship of Tort Liability, Governmental Immunity, and the Civil Rights Statutes, 16 St. Wary's L.J. 851 (1985). We also disclaim any intent to address the issue of whether a countymay be held liable for the negligent selectionof an agent or contractorwho commits intentionaltorts. See note 2. supra. -

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P acts of its agents except in the circumstancesspecified in theTexas

Tort Claims Act [TTCA]. Clv. Prac. & Rem. Code §lc‘:et seq.: see, &&S Davis v. Lubbock County, 486 S.W.Zd 109 (Tex. Civ. App. - Amarillo 1972, no writ); Townsend v. Memorial Medical Center, 529 S.W.Zd 264 (Tex.Civ. App. - Corpus Christ1 1975,writ ref'dn.r.e.). Consequently,acts donewithin the confines of a relationshipbetween
a county and its duly authorizedagent will be imaune from suit, save for the limitedwaivers of sovereign immunity found in theTTCA. Civ. Prac. 6 Rem. Code 5§101.001(1);101.021.

The Tort ClaimsAct specificallypreserves sovereign immunityfor claims arising:

(2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action; or
(3) from the failure to provide, or themethod of providing police or fire protection. (Emphasis added).

Civ. Prac. & Rem. Code 5101.055 (2). (3).

The predecessor provision to these provisions, V.T.C.S. art. 6252-19, re-enactedwithout substantive change in the Civil Practice and Remedies Code, has been the subject of substantial judicial exposition,and we submit that those cases can be studiedwith profit for guidance concerning preventative planning by county officials chargedwith theprovision and supervisionof emergency services. See V.T.C.S. art. 6259-19, §14(5). (8), (9). We only note that the particular provisions quoted in some circumstances comparing fire service can be navigated only with great care by a governmentalunit seeking to retain the protection offeredby sovereign immunity. See. s, Blackv. Nueces CountyRural Fire PreventionDistrictNo. 2, 695 S.W.Zd 562 (Tex. 1985) (immunityfor action taken to provide emergency service, only if the action is in compliance with any laws and ordinancesapplicable to emergencyservice; if thereare no ordinances governing the provision of emergency service then there can be no reliance in the immunity granted by this section); State v. Terrell, 588 S.W.Zd 784, 788 (Tex. 1979) (methodof providing emergencyservice refers to the general division or plan about how service is to be provided; and not to case-by-case actions undertaken pursuant to a plan, if any).

Moreover, as you correctly note, the Tort Claims Act preserves sovereign immunity in cases "arising out of assault, battery. false imprisonment,or any other intentionaltort.

. . .u Civ. Prac. 6 Rem.

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Code 5101.057(Z). Sovereign iaasunityclearly is an absolute bar to liability in the case of all common law intentionai torts. Once a claim is characterized as belonging to the class of common law intentional torts, suit on that claim is barred by the sovereign isalunity. Townsend v. Memorial Medical Center, 529 S.W.Zd 264, 266 (Tex.Civ.App. - Corpus Christ1 1975.writ ref'dn.r.e.).

SUMMARY

Counties are liable for the negligent acts of agents furnishing fire services pursuant to a contract authorized by articles 2351a-1 or 2351a-5,V.T.C.S.. to the extent specified in the Texas Tort ClaimsAct. Incorporatedvolunteer fire departments furnishing such services pursuant to contract may be agents of the county in some circumstances. Counties are not liable for the intentional comon law torts of agents furnishing fireprotection service.

%?Jzh

JIM MATTOX AttorneyGeneral of Texas

WARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STBAKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Don Bustion AssistantAttorney General

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