THE ATTORNEY GEXERAL 

OF TEXAS 

July 15, 1987 

Hoaorable Barry L. Macha 

Criminal District Attorney 

Wichita County Courthouse 

Wichita Falls, Texas 76301 

Opinion No. m-748 

Re: Liability of a county for acts 

committed by members of a volunteer 

fire department 

Dear Mr. 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 supported by 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 

General Opinion Nos. JM-697 (1987); JM-350 (1985). 

Counties specifically are authorized by statute to provide fire 

services directly. V.T.C.S. art. 2351a-1. This statute also permits 

counties to contract with cities, towns, and villages 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 

p. 3479 
Honorable Barry L. Macha - Page 2 (JM-748) 

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 fighters may 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-1 provides that the acts 

of the employees of the city , town, or village furnishing fire 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 committed while 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 service and the volunteer fire department furnishing the service. 

Although a casual reading of article 2351a-5 may create the impression 

1. 

article 

article 

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

2351a-1 with 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 liability related to the furnishing 

of those services is the responsibility of the governmental unit which would be responsible for furnishing 

the services absent the contract or 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 

Interlocal Cooperation Act. 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). 

, 

--. 

p. 3480 
P 

Honorable Barry L. Kacha - Page 3 (J&748) 

that such a volunteer fire department contractin.: with a county 

always will be an independent contractor, and thus bear the sole 

responsibility for its acts, we are unable to say that such necessarily will always be the case.' 

Instead, we believe that the question of assigning liability when 

fire services are provided by an incorporated volunteer fire department pursuant to a contract with a county will always be one of fact. 

Whether liability will be fixed on the volunteer fire department alone 

as an independent contractor or placed on the county as a principal 

responsible for the acts of its agent volunteer fire department will 

depend30n an application of the principles of the law of agency to the 

facts. As a general rule, of course, the precise legal impact of a 

relationship arising out of a contract will be construed according to 

the realities of a situation, and not simply by reference to the 

formal recitals used in the contract (i.e., "X volunteer fire department is an independent contractor.") We do not decide questions 

of fact,.nor are we suited to advise parties to potential contracts 

negotiated pursuant to article 2351a-5 how to structure their bargains 

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 anyone who 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 

somewhat awkward drafting of article 2351a-1. Specifically, the exact 

2. We do not consider those cases where a contracting volunteer 

fire department is truly an independent contractor with sole liability 

for its acts, but where an injured party seeks to hold 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 do we address the applicability of a rule of agency which 

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 that volunteer fire fighters and fire departments are 

not liable for "damage to property resulting from . . . reasonable and 

necessary action in fighting or extinguishing a fire on the property." 

Civ. Prac. and Rem. Code 578.001. 

p. 3481 
Ronorable Barry L. Macha - Page 4 (m-748) 

meaning of the fourth sentence of the article, as emphasized below, 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 or village, for the use of 

the fire trucks and other fire-fighting equipment 

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 any manner furnishing fire protection to the 

citizens of a county outside the city limits of 

any city, town or village, shall be 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 or village within a county 

and or adjoining counties shall be held liable for 

the acts of any of its employees while engaged in 

fighting fires outside the city limits pursuant to 

any contract theretofore entered into between 

the Commissioners Court of the county and the 

governing body of the city, town or village. 

(Emphasis added). 

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 

the whole world for 5 act in any way connected with furnishing fire 

service, including acts done while traveling to and from fires. 

Reference to the canons of statutory construction provides 

several rules which help to resolve the problem posed by the somewhat 

confusing sentence. First, legislation is to be interpreted so as to 

fairly meet the intent of the legislature, Calvert v. Kadane, 427 

S.W.Zd 605 (Tex. 1968). and statutes must 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-1 as originally enacted read: 

p. 3482 
Eonorable Barry L. Macha - Page 5 (JM-748) 

An Act authorizing the Commissioners Court in all 

counties of this State to provide fire protection 

and fire fighting equipment for the citizens of 

the county outside of any city, town, or village 

therein, either by the purchase and maintenance by 

the county of the necessary equipment, or by 

entering into contracts with the governing body 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, or village, pursuant to contracts with 

the Cosanissioners Court of the county, shall be 

considered as operations of the countyi and all 

persons engaged in such operations, notwithstanding they may be employees of a city, town, or 

village, shall be considered as agents for the 

county in all respects; providing purchase of fire 

fighting equipment must be authorized by election; 

and declaring an emergency. (Emphasis added). 

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 executed pursuant 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's defense of sovereign immunity in a large number of instances 

and in a strikingly casual fashion. Legislation in derogation of the 

doctrine of sovereign immunity should be strictly construed, and 

legislative intent to waive the doctrine should be clear. and applied 

only to cases clearly within the legislature's intent. Cf. Dobbins v. 

Texas Turnpike Authority, 496 S.W.Zd 744, 748 (Tex.Tv. App. - 

Texarkana 1973, writ ref'd n.r.e.). 

Finally, to say that the troublesome language in the provision 

here imposes almost unlimited liability -- in derogation of coxanon law 

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 

p. 3483 
Honorable Barry L. Macha - Page 6 (JM-748) 

legislative intent. State Highway Department v. Go=, 162 S.W.Zd 

934, 936 (Tex. 1942). 

Thus, we believe that the seemingly unlimited phrase "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 sentence reads "notwithstanding such persons [the "any persons" 

referenced in the first part 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-1 must be construed as 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 sentences of article 2351a-1 limit and make 

most certain the key ramification of the explicit agency relationship 

created by the statute: counties potentially are liable for the acts 

of city, town. or village furnishing fire service pursuant to contract 

under the statute. A county is not liable for the acts of anyone 

else, including volunteers who furnish fire protection service. 

You also ask whether a county may be held liable for the intentional acts40f others permitted by statute to furnish fire service to 

the county. A county's liability for the acts of its agents must be 

established by reference to the common law and to statute. The 

doctrine of sovereign immunity bars suits against counties for the 

4. Our consideration of this issue is limited to intentional 

tortious behavior governed by state comaon law or statutory law. We 

express no view on the possible application of certain federal civil 

rights laws to intentional conduct by government employees or 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 county may be held liable for the negligent selection of an 

agent or contractor who commits intentional torts. See note 2. supra. - 

p. 3484 
Honorable Barry L. Macha - Page 7 (JM-748) 

P 

acts of its agents except in the circumstances specified in the Texas 

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'd n.r.e.). 

Consequently, acts done within the confines of a relationship between 

a county and its duly authorized agent will be imaune from suit, save 

for the limited waivers of sovereign immunity found in the TTCA. Civ. 

Prac. 6 Rem. Code 5§101.001(1); 101.021. 

The Tort Claims Act specifically preserves sovereign immunity for 

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 the method 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-enacted without 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 studied with profit 

for guidance concerning preventative planning by county officials 

charged with the provision and supervision of 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 governmental unit 

seeking to retain the protection offered by sovereign immunity. See. 

s, Black v. Nueces County Rural Fire Prevention District No. 2, 695 

S.W.Zd 562 (Tex. 1985) (immunity for action taken to provide emergency 

service, only if the action is in compliance with any laws and 

ordinances applicable to emergency service; if there are 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) (method of providing emergency service 

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 intentional tort. . . .u Civ. Prac. 6 Rem. 

p. 3485 
Honorable Barry L. Macha - Page 8 (JM-748) 

Code 5101.057(Z). Sovereign iaasunity clearly 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'd n.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 Claims Act. Incorporated volunteer 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 fire protection service. 

%?Jzh 

JIM MATTOX 

Attorney General of Texas 

WARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STBAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

p. 3406