                         THE      ATTORNEY                GENERAL
                                        OFTEXAS

  JOHN      IA.   BILL
                                    AI~~~N.TExAR          18711
A¶-roRNIcy CSENWAI.
                                               July 31, 1973


         The Honorable Marie Hudson Winters                 Opinion   No.   H-   76
         Firemens’   Pension Commissioner
         503-F Sam Houston State Office Bldg.               Re:       Whether or not, a Laredo
         Austin, Texas 78701                                          fireman who was killed or- dis-
                                                                      abled while performing   fire
                                                                      fighting duty in Nuevo Laredo
                                                                      would qualify under the pro-
                                                                      visions 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 Retire-
         ment 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    Andyto 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
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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 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’ Compen-
        sation 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        recog-
        nized 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         Ex-
        change, 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 ordin-
        arily 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
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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 depart-
               ment upon orders of a superior officer in the depart-
               ment 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




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