Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 6,2003

The Honorable Harold Dutton Opinion No. GA-0029
Chair, Juvenile Justice and Family Issues
Committee Re: Meaning of “civil liability’ in section
Texas House of Representatives 791.006(a) of the Government Code, which
P.O. Box 2910 permits inter-local cooperation contracts for fire
Austin, Texas 78768-2910 department services (RQ-0593-JC)

Dear Representative Dutton:

On behalf of the City of Bedford, your predecessor as Chair of the House Juvenile Justice and
Family Issues Committee asked about the meaning of the term “civil liability” as used in section
791.006(a) of the Government Code.’

A disagreement between the cities of Fort Worth and Bedford regarding the meaning of “civil
liability” in section 791.006(a) prompts this request. See Request Letter, supra note 1, at l-2. Fort
Worth contracts with several cities, including Bedford, to furnish fire department services and has
recently distributed a letter that requires such contracts to include the following language:

Liabilitv

Pursuant to the terms of [section] 791.006(a), any civil liability arising
from the furnishing of fire protection services under this agreement,
including thatforpersonal injury, personnel and/or retirement benefits
of the personnel of the responding city, and/or damage to any equipment
furnished by the responding city, shall be borne by the requesting city.’

‘See Letter from Honorable Toby Goodman, Chair, Juvenile Justice and Family Issues Committee, Texas House
of Representatives, to Honorable John Comyn, Texas Attorney General (Aug. 21, 2002) (on file with Opinion
Committee) [hereinafter Request Letter].

2See Letter from H.L. McMillen, Fire Chief, Fort Worth Fire Department, to Steve Bass, Fire Chief, Bedford
Fire Department (Nov. 29,200l) (on file with Opinion Committee) (emphasis added); see also Request Letter, supra
note 1, at 1.
 The Honorable Harold Dutton - Page 2 (GA-0029)

Bedford disagrees with Fort Worth’s view that section 791.006 mandates this broad interpretation of
the term “civil liability,” and construes the term to exclude “personnel and/or retirement benefits.“3

Chapter 79 1, the Interlocal Cooperation Act, authorizes local governments, including cities, to
contract with each other, in accordance with the act’s requirements, to perform governmental functions
and services. See TEX. GOV’T CODE ANN. 8s 791.001, 791.01 l(a) (Vernon 1994 & Supp. 2003).
“Governmental functions and services” here include fire protection. See id. 5 791.003(3)(B) (Vernon
Supp. 2003). Section 79 1.006 imposes on a governmental unit that obtains or requests fire department
services “any civil liability” that may arise from providing those services:

(a) If governmental units contract under this chapter to furnish or obtain
the services of a fire department, the governmental unit that would have
been responsible for furnishing the services in the absence of the contract
is responsible for any civil liability that arises from the furnishing of
those services.

(b) In the absence of a contract, if a municipality or county furnishes law
enforcement services to another municipality or county, the
governmental unit that requests and obtains the services is responsible
for any civil ZiabiZity that arises from the furnishing of those services.

(c) Nothing in this section adds to or changes the liability limits and
immunities for a governmental unit provided by the Texas Tort Claims
Act, Chapter 101, Civil Practice and Remedies Code, or other law.

Id. 0 791.006 (emphasis added).

Neither section 791.006 nor another provision in chapter 791 defines “civil liability.” On the
other hand, neither does that statute restrict the term to a particular kind of damages. The statute
provides that the governmental unit that obtains fire department services shall be “responsible
for any civil liability that arises from the furnishing of those services.” See id. 5 791.006(a).
Furthermore, we have not found any Texas case that construes the term as used in section 79 1.006.

The Code Construction Act directs that a word or phrase must “be read in context and construed
according to the rules of grammar and common usage” unless it has acquired a technical meaning. Id.
$3 11 .Ol 1 (Vernon 1998). “Civil liability” has a technical or legal meaning. Black’s Law Dictionary
defines “civil liability” as follows: “1. Liability imposed under the civil, as opposed to the criminal,
law. 2. The state of being legally obligated for civil damages.” BLACK’S LAW DICTIONARY926 (7th
ed. 1999); accord Port of Longview v. Int’Z Raw Materials, LTD., 979 P.2d 917,92526 (Wash. App.
1999) (“By its plain language [the statute at issue] affords immunity only from ‘civil liability,’ that is,
from the threat of a ‘civil action for damages.“‘). “An award of damages is defined as the sum of
money the law awards as pecuniary compensation, recompense, or satisfaction for an injury done or a

3See Letter from John Murphy, Mayor, City of Bedford, to Honorable Todd Smith, Texas House of
Representatives at 2 (July 1, 2002) (on file with Opinion Committee) [hereinafter Bedford Letter]; see also Request
Letter, supra note 1, at 1.
 The Honorable Harold Dutton - Page 3 (GA-0029)

wrong sustained as a consequence of a breach of a contractual obligation or a tortious act.” City of
Dallas v. Cox, 793 S.W.2d 701, 733 (Tex. App.-Dallas 1990, no writ) (citations omitted); accord
BLACK’S LAW DICTIONARY393 (7th ed. 1999) (defining “damages” as “[mloney claimed by, or ordered
to be paid to, a person as compensation for loss or injury.“).

One Texas court has construed the term “civil liability” for purposes of statutory immunity to
include injunctive relief as well as monetary damages. See Dallas County Med. So&y v. Ubinas-
Brache, 68 S.W.3d 3 1,39-40 (Tex. App.-Dallas 2001, pet. denied), cert. denied, 535 U.S. 970 (2002).
Nothing in the context of section 79 1.006 indicates that “civil liability” should be read differently from
its legal meaning. Chapter 79 1‘s stated purpose is to encourage local governments to contract with each
other to increase their “efficiency and effectiveness.” See TEX. GOV’T CODE ANN. 8 79 1.OOl (Vernon
1994). And section 79 1.006(a), on its face, promotes that purpose by protecting the governmental unit
that contracts to furnish fire department services from the consequences of legal actions arising from
the furnishing of those services. See id. 5 791.006(a) (Vernon Supp. 2003).

Nothing in section 791.006 indicates that a city cannot, as Bedford suggests, be liable for
“personnel and/or retirement benefits” in a civil action. See Bedford Letter, supra note 3, at 2.
Although the Texas Tort Claims Act does not expressly authorize benefit-type damages, it does make
a city liable to a limited degree for property damage, personal injury, and death arising
from its governmental functions, including fire protection. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 8 10 1.02 1,lO 1.02 15(a)( 1), 10 1.023 (Vernon 1997 & Supp. 2003) (pertaining to governmental liability,
city liability, and limits on liability). Furthermore, a claim against a city may be based on a statute other
than the Texas Tort Claims Act. See id. 8 101.003 (Vernon 1997) (“The remedies authorized by this
chapter are in addition to any other legal remedies.“). Section 791.006(a) does not limit “civil liability”
to liability under that statute. See TEX. GOV’T CODE ANN. 5 791.006(c) (Vernon Supp. 2003). A fire
fighter employed by a city or the fire fighter’s survivors, for instance, may sue the city for workers’
compensation benefits for injury to or death of the fire fighter. See TEX. LAB. CODE ANN. § 408.001(a)
(Vernon 1996) (stating that workers’ compensation benefit claim is covered employee’s or survivor’s
exclusive remedy for death or work-related injury); id. $5 504.002, 504.011 (Vernon 1996 & Supp.
2003) (regarding application of general workers’ compensation laws to political subdivisions); see also
City of La Porte v. Bafield, 898 S.W.2d 288,294 (Tex. 1995) (stating that Labor Code chapter 504’s
predecessor, “Political Subdivision Law,” waived immunity for general compensation claims).

“Civil liability” as used in section 791.006(a) of the Government Code is a broad term that
encompasses any damages and injunctive relief available in a civil action against a municipality.
Chapter 79 1, by authorizing governmental units to contract with each other for the furnishing of fire
department services, implies that the parties are at liberty to specify the breadth of the term “civil
liability.” Ultimately, therefore, the ambit of the term’s meaning is dependent upon the language of the
contract. The only express limitation upon its scope is that the liability must arise from the furnishing
of the services. We conclude that the term “civil liability” does not necessarily exclude personnel or
retirement benefits.
The Honorable Harold Dutton - Page 4 (GA-0029)

SUMMARY

Under section 791.006(a) of the Government Code, if
governmental units contract for fire department services, the
governmental unit that would have been responsible for furnishing
those services in the absence of the contract “is responsible for
any civil liability that arises from the furnishing of those services.”
TEX. GOV’T CODE ANN. 8 791.006(a) (Vernon Supp. 2003). “Civil
liability” in section 791.006(a) is a broad term and encompasses any
damages and injunctive relief available in a civil action against a city
under Texas law, and does not necessarily exclude personnel or
retirement benefits.

Very truly yours,

.k4rWL
REG A
Attomeweral
BOTT
of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee