May 8, 1968
Mrs. Marie Winters Opinion No. M-231
Firemen's Pension Commissioner
1010 Sam Houston Building Re: Whether paid firemen op-
Austin, Texas 78701 erating an emergency am-
bulance service as a
regular operating por-
tion of the Fire Depart-
ment are covered for dis-
ability benefits under
Section 7 of the Firemen's
Relief.and Retirement Law
in the event of injury on
such ambulance duty,.and
Dear Mrs. Winters: related question.
you have requested an opinion of this office on the
following question:
"May we have your official.,rulingon
whether or not paid firemen operating an
emergency ambulance service as a regular
operating portion of the Fire Department
would be covered for disability benefits
under Section 7 of the Firemen's Relief
and Retirement Law in the event they were
injured.on ambulance duty - and whether or
not their widows or.beneficiaries would be
covered under Section 12."
By describing the ambulance service as "emeraency' in
nature, we presume that it is to function only when it becomes
the duty of the firemen to provide this necessary service,
-1126-
Mrs. Marie Winters, ~page 2 (M-231)
House Bill 68, Acts 55th Legislature, Regular Session,
1957, Ch. 275, p. 617, codified as Section 7 and Section 12 of
Article 6243e, Vernon's Civil Statutes, read, in part, as follows
#Sec. 7. Whenever a person servins as
an active fireman dulv enrolled in anv reo-
ularlv active fire department in anv city or
town in the State having a population of less
G, five hundred thousand (500,000) according
to the lastpreceding Federal Census, which
city or town is now within, or may hereafter
corm withinthe provisions of this Act, shall
become nhvsicallv or mentally disabled ws
in and/or in conseauence of, the performance
of his duty'.,saidBoard of Trustees shall upon
his request, or without such request if it shall
deem proper and for the good of the department,
retire .such person from active service either
upon total or partial disability as the case
inay'~warrant. . .* (Emphasis added.)
Sections 4 and 5 of Article XI of the Constitution of
Texas authorize cities and towns to be incorporated as political
subdivisions of the state, subject to such limitations as the
Legislature may prescribe and provided that the charter or or-
dinances passed under ,authorityof the charter'comply with the
Constitution of the State of Texas and all general laws enacted
by the Legislature.
Article 1011, Vernon's Civil Statutes, reads, in part,
as follows:
"The City Council, or other governing
body shall have power to pass, publish, amend
or repeal all ordinances, rules and police
regulations, not contrary to the Constitution
of this State, for the good government, peace
and order of the City . . ."
Article 1175, Vernon's Civil Statutes, reads, in part,
as follows:
-1127-
*s. Marie Winters, page 3 (M-231)
"Cities adopting the charter or amend-
ment hereunder shall have ~full power of local
self-government, and among the other powers
that may be exercised by any such city the
following are hereby enumerated for greater
certainty:
II
. . .
"27. To provide for police and fire
departments.
-28. To provide for a health depart-
ment and the establishment of rules and reg-
ulations protecting the health of the city
and the establishment of quarantine stations,
and pest houses, emergency hospitals and
hospitals, . . .
II
. . .
"34. To enforce all ordinances necessary
to protect health, life and property, and to
prevent and summarily abate and remove all
nuisances and to preserve and enforce the
good government, order and security of the
city and its inhabitants."
Cur Courts have held that under authority of Articles
1011 and 1175 that the State ,has delegated to municipalities under
the police power, the right to protect the health, safety.morals
and general welfare of their citizens by regulations that are
reasonable and necessary for that purpose, subject to limitations
imposed by the Constitution and statutes enacted by the Legislature
40 Tex.Jur.2d 12, Municipal Corporations B 321,,322: Keel v. Pulte
Comm. of Appeals, Sec. A (19281, 10 S.W.2d 694; tombardo v. Dallas,
124 Tex. 1, 73 S.W.2d 475: City of Dallas v. Smith, 130 Tex. 225,
107 S.W.2d 872 (1937); 12 Tex.Jur.2d 408 8 62, 63 and 64.
The health and safety of~the public is of primary
importance to all ordered forms of government. In the preservation
-1128-
Mrs. Marie Winters, page 4 (X-231)
and protection of the public health, every sovereign may, in
the exercise of the police power, enact laws directed to that
purpose. The Legislature may delegate powers relating to the
public health to various agencies or subdivisions of the State.
28 Tex.Jur.2d 9, Health R 1, 2; 39 C.J.S. 811, Health E!2.
The provisions of Articles 1011 and 1175 and Sections
4 and 5 of Article XI of the Constitution plainly show that
cities and towns, duly incorporated, are charged with the important
gwernmental function of the preservation and protection of the
public health within those towns and cities which is within the
police power of the state.
In Attorney General's Opinion C-772 (1966), we held
that pursuant to the general powers of the county to expend
general revenues of the county in behalf of the public health
and sanitation under Article 4418f, Vernon's Civil Statutes,
the county may operate and maintain an ambulance service within
the county. We have also held that the Tarrant County Hospital
District, under the provisions of Article 4494n and Section 4 of
Article XI of the Constitution, is charged with the preservation
and promotion of the public health within the district under the
police power of the state, and is authorized to acquire and op-
erate an ambulance service within the district. Attorney Gen-
eral's Opinion C-759 (1966).
In view of the foregoing, you are hereby advised that
the governing bodies of cities and towns, pursuant to Section 4
and 5 of Article XI of the Constitution of Texas and Articles (
1011 and 1175 have the authority under the broad police powers
granted them by the State to perform "emeroencv" ambulance serv-
ice within their city in order to protect the health, safety and
general welfare of the citizens of the city. Any paid fireman
performing "emerqencv" ambulance service as a duty of the fire
department would be entitled to disability benefits under Sec-
tion 7 of Article 6243e in the event he was injured while acting
in the scope of such emergency ambulance service. This statute
must be given a liberal construction in favor of the fireman. *
of Firemen's Relief & Retirement Fund Trustees of Houston v. Mark%
237 S.W.Zd 420 (1951), rev. on other grounds, 150 Tex. 433, 242
S.W.2d 181.
-1129-
~rs. Marie Winters, page 5 (M-231)
SUMMARY
Paid firemen performing "emerqencv" am-
bulance services as a duty of the fire depart-
ment would be eligible for the benefits of Sec-
tion 7 and Section 12 of Article 6243e. Vernon's
Civil Statutes.
“YP truly yours,
ORD C. MARTIN
General of Texas
Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINION CCMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Banks
James Quick
Dyer Moore, Jr.
Bill Allen
A. J. CARUBBI, JR.
Bxecutive Assistant
-1130-