Travel Case Poised for High Court Oral Argument on November 5th
On November 5, 2019, the Texas Supreme Court will hear arguments in a course and scope case involving a fatal motor vehicle accident incurred by a deputy sheriff. The underlying decision, which the Court has agreed to review, is County of El Paso v. Orozco, No. 08-15-00079-CV, decided December 21, 2016.
Procedurally, the path the case took to the supreme court is unique. Last year, the court denied a petition for review filed by the deputy sheriff’s widow which claimed that he had died in the course and scope of his employment for the County. The court of appeals had held that the employee had not been acting in the course and scope of his employment when he died in an automobile accident while traveling home from an “extra-duty” assignment in a marked patrol unit.
The Supreme Court later decided to hear the appeal. The case is Orozco v. County of El Paso, No. 17-0381. The oral argument can be viewed online via live streaming or later on a delayed stream. The live stream will take place at 9:00 a.m. on November 5th.
In response to the denial of the petition, the beneficiary filed a motion for rehearing, arguing that the “course and scope: arguments were “interwoven” with the arguments that had been made in Garza v. Harrison, No. 17-0724, a case in which the Supreme Court, at the time, had granted a petition and ordered oral argument. Subsequently, on May 24, 2019, the court reversed the judgment in favor of Garza and held that a licensed peace officer employed by a city’s police department and acting under the warrantless-arrest provision in article 14.03(g)(2) of the Code of Criminal Procedure is within the general scope of the officer’s employment for purposes of section 101.106(f) of the Tort Claims Act. We further hold that Garza was sued in his official capacity and is therefore entitled to be dismissed from the lawsuit because the record conclusively establishes he was acting under a valid grant of authority conferred by virtue of his status as a peace officer and activated by the commission of a crime in his presence.
It is difficult to draw a strong parallel between the facts in Garza and the facts in Orozco. Reuben Orozco was a sergeant with the El Paso County Sheriff’s Office. He was both a member of the patrol division and the team leader of the crisis negotiation team. Members of the patrol division are responsible for patrolling the county, enforcing traffic laws, and answering calls. Members of the crisis negotiation team are specifically trained to deal with hostage negotiation and are on-call twenty-four hours a day.
On September 17, 2005, Orozco was working an extra-duty security assignment for the University of Texas at El Paso. An extra-duty assignment, as defined by Chapter 5.5 of the El Paso County Sheriff’s Manual, includes secondary employment in which the actual or potential use of law enforcement powers is anticipated. Because Orozco was the team leader of the crisis negotiation team, he was permitted to drive a marked patrol vehicle to and from work and to wear his official uniform.
Around 1:30 a.m., when Orozco had completed his assignment at UTEP, he contacted dispatch to inform them that he was en route to his “1042”, which is code for heading home. He was traveling eastbound on Interstate-10 when a vehicle traveling in the opposite direction lost a wheel which bounced over the center divider and struck Orozco’s windshield, tragically resulting in his death.
Mary Orozco, as wife and beneficiary, filed a claim for death benefits from El Paso County, a self-insured carrier. The County denied the claim and Mary presented the matter to the Texas Department of Insurance, Division of Workers’ Compensation for a contested case hearing. The relevant issue concerned whether Orozco suffered a compensable injury resulting in his death. Chief Deputy Dolores Messick testified regarding Ruben’s duties and responsibilities as both a member of the patrol division and as the leader of the crisis negotiation team. It was customary practice for an officer to contact dispatch to advise that he had completed his extra-duty assignment in the event the officer was needed for a later call. According to policy, while Orozco was driving home he was required to take any action necessary, and to respond to “anything that he observed on the way.” The sheriff and his chief deputy agreed that Orozco was in the course and scope of his employment at the time of his accident because he was enforcing Texas traffic laws.
On cross-examination, Messick was asked whether the County compensated Orozco for the 20 or 30 minutes it took him to drive home and to explain the difference between on- and off-duty status. Messick related that the drive home would not be recorded on his time sheet and when asked about the difference between on-duty and off-duty, the following exchange occurred:
[Messick]: Well, on duty is when you’re actually–it’s a fine line. When–when you are, I guess–what–what you’re getting at as on duty is when they go 10-8 and report that they are–are ready to take the call. [County Attorney]: What–what does 10-8 mean? [Messick]: That they’re in service. They’re in the car and ready to go. [County Attorney]: And what is off duty? [Messick]: That would be when they check out of the car.
[County Attorney]: And that means they’re no longer—
[Messick]: Available for calls.
[County Attorney]: Okay. And they’re not getting paid for services rendered to El Paso County?
[Messick]: Not after they–they check 10-7 out of the car.
[County Attorney]: In fact, on the night of [Ruben’s] accident, it was his night off, correct?
[Messick]: Correct.
Messick testified that, in his opinin, the visible presence of Orozco’s uniform and marked patrol car on the Interstate amounted to enforcing traffic laws, thereby bringing him within the course and scope of his employment.
At the administrative level, the Benefit Contested Case Hearing Officer concluded that the claimant was killed in the course and scope of his employment. The appeals panel reversed the hearing officer’s decision and rendered a decision that the claimant was not in the course and scope of his employment when he died.
The beneficiary filed suit for judicial review. The parties filed competing motions for summary judgment and the trial court granted Mary’s motion. On appeal, the County raised the sole issue of whether the trial court erred in finding that the employee suffered a compensable injury resulting in his death while in the course and scope of his employment for the County.
The court of appeals agreed with the County and reversed the trial court’s judgment.
Mary’s position, and essentially the position adopted by the hearing officer, is that anytime a uniformed patrol officer is driving a marked patrol vehicle on public roads, he or she is in the course and scope of employment. At the time of the accident, Ruben was returning home from his private security assignment. UTEP paid him for his services and directed his duties. He had not been contacted by the police dispatcher to respond to a call or to engage in police duties, he was not responding to an emergency such as a citizen in need of assistance, and he was not engaged in a law enforcement duty of preserving the peace. We disagree that at the time of the accident, Ruben was performing a task of crime deterrence and enforcement of traffic laws simply because he was driving down the Interstate in a marked patrol vehicle. See Mansfield v. C.F. Bent Tree 10 Apartment Ltd. Partnership, 37 S.W.3d 145, 150-51 (Tex.App.–Austin 2001, no pet.)(police officer resident of apartments where he performed off-duty security patrols was acting in capacity as police officer by arresting trespasser); Blackwell, 909 S.W.2d at 139; see, e.g., Brown v. Dillard’s, Inc., 289 S.W.3d 340, 344 (Tex.App.–Eastland 2009, no pet.)(off-duty police officer working part-time for store as security was acting as on-duty officer when responding to crime information that suspect was engaged in burglary of vehicle in parking lot); Saenz, 2006 WL 286006, at *4-5 (off-duty officer driving city-issued truck not in scope of employment with city at time of accident where more than six hours had passed since officer completed his assignment, he was not responding to any calls at time of accident and had not observed criminal activity); Gibbons, 150 S.W.3d at 882 (because police officer is in a patrol car does not necessarily mean officer is on-duty; and actions of off-duty officer driving patrol car were in capacity as peace officer when at time of accident, deputy was using on-board computer for results of license plate check performed based on suspicion of a stolen vehicle).
We see nothing which would distinguish Ruben, at the moment of the accident, from any number of other commuters. At the time of the accident, Ruben was not actively responding or engaging in any type of law enforcement. Had he been in pursuit of the disabled vehicle, or any other vehicle for that matter, we may perceive the result differently.
Because we have determined that Ruben’s activity was not in the course and scope of his employment, we need not consider the remaining two steps — whether one of the two exclusions of Section 401.011(12) applies or whether an exception to the exclusion applies under Section 401.011(12)(A) or (B). See TEX.LAB.CODE ANN. § 401.011(12)(A), (B). We sustain the County’s sole issue and reverse and render judgment in favor of El Paso County.
The case has drawn attention from the broader workers’ compensation community, including a pair of Amicus Curiae briefs from the Combine Law Enforcement Associations of Texas and the Texas Association of Counties.
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