Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORNEY GEXERAL
OF TEXAS
July 15, 1987
Hoaorable Barry L. Macha Opinion No. m-748
Criminal District Attorney
Wichita County Courthouse Re: Liability of a county for acts
Wichita Falls, Texas 76301 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
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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. We note that in Attorney General Opinion H-279 we compared
article 2351a-1 with section 4(g) of the Interlocal Cooperation Act,
article 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 govern-
mental 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). --.
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Honorable Barry L. Kacha - Page 3 (J&748)
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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 neces-
sarily will always be the case.'
Instead, we believe that the question of assigning liability when
fire services are provided by an incorporated volunteer fire depart-
ment 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 depart-
ment 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, Torts of an Independent Contractor, Yale L. J. 861
:1916). 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.
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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
No city, town or village within a county
and or adjoining counties shall be held liable for
v-
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:
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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, notwith-
standing 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 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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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 inten-
tional 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.
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Honorable Barry L. Macha - Page 7 (JM-748)
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 re-
sponding to an emergency call or reacting to an
emergency situation if the action is in compliance
with the laws and ordinances applicable to emer-
gency action; or
(3) from the failure to provide, or the method of
providing police or fire protection. (Emphasis
added).
P
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.
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Honorable Barry L. Macha - Page 8 (JM-748)
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'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
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