IN THE SUPREME COURT OF TEXAS
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NO. 17-0381
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MARY OROZCO , PETITIONER,
v.
COUNTY OF EL PASO, SELF-INSURED, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
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Argued November 5, 2019
JUSTICE DEVINE delivered the opinion of the Court.
The issue in this workers’ compensation appeal is whether a deputy sheriff, who died in a
vehicular accident while driving his assigned patrol car, was in the course and scope of his
employment. The trial court rendered summary judgment for the deputy’s widow, concluding that
the deputy was in the course and scope of his duties with the county at the time of his death. The
court of appeals disagreed. It concluded that the deputy was not in the course and scope because
the accident occurred during his travel home from an extra-duty assignment with a private employer.
545 S.W.3d 638, 644-45 (Tex. App.—El Paso 2016). The appellate court accordingly reversed and
rendered judgment for the county. Because the summary judgment evidence established that the
deputy was operating the marked patrol car with the county’s permission and under its authority at
the time of his death, we conclude the deputy was engaged in a law-enforcement activity within the
course and scope of his employment. The court of appeals’ judgment is accordingly reversed and
judgment rendered for the widow.
I
Ruben Orozco died in his patrol car on September 17, 2005, while driving on the I-10
expressway that runs through El Paso. He was killed instantly when a wheel from another vehicle
came loose and crashed through his patrol car’s windshield. At the time of his death, Orozco was
a sergeant with the El Paso County Sheriff’s Department, assigned to the patrol division, and a
leader on the department’s crisis negotiation team. The sheriff’s department assigned Sergeant
Orozco a marked patrol car as a take-home unit. Orozco was authorized to keep his patrol car at
home because of his rank in the patrol division and his work with the crisis team.
On the night of his death, Sergeant Orozco was not scheduled to work for the sheriff’s
department. He instead worked an extra-duty assignment at a University of Texas El Paso (UTEP)
football game. “Extra Duty Employment” is defined in the El Paso County Sheriff’s Policy Manual
as “secondary employment in which the actual or potential use of law enforcement powers is
anticipated.” The sheriff’s policy manual also defines and distinguishes “Outside Employment” as
another type of “secondary employment in which the use of law enforcement powers is not
anticipated.” Both types of secondary employment must be approved by the sheriff through the
chain of command. Employees working extra-duty employment are admonished that they must
“operate under all applicable policies and procedures of the Department.”
2
Department vehicles may not be used for off-duty, outside employment. They may be used
for extra-duty employment, but the employee must obtain approval from the division commander.
The sheriff’s policy manual explains that department vehicles may be used only “with the
permission of a supervisor and [then] only for official business.” Because the work at UTEP was
extra-duty employment that might entail the use of an officer’s law-enforcement powers, Sergeant
Orozco wore his uniform, badge, and gun to the football game, and he drove there in his assigned
patrol car. After completing his work at the UTEP football game, Sergeant Orozco also used the
patrol car for his return trip home. The freak accident that took his life occurred en route.
After Sergeant Orozco’s death, his surviving spouse and beneficiary, Mary Orozco, filed a
claim for workers’ compensation benefits with the County of El Paso, a self insurer under the Texas
Workers’ Compensation Act. See generally TEX. LAB. CODE §§ 407.001-.133 (regulating self-
insurers). The county denied the claim, believing that Orozco was not in the course and scope of
his employment at the time of the accident. Sergeant Orozco’s widow sought to resolve her claim
in a contested-case hearing before an administrative law judge. See id. §§ 410.151-.169 (governing
contested-case hearings). The hearing officer in that proceeding ruled in the widow’s favor,
concluding that her husband’s death was a compensable injury that occurred in the course and scope
of his employment. The county appealed. See id. §§ 410.201-.209 (governing administrative
appeals).
A three-member appeals panel reviewed the county’s administrative appeal. The panel
concluded that Sergeant Orozco was not in the course and scope of his employment at the time of
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his death and that his widow was therefore not entitled to benefits. It accordingly reversed the
hearing officer’s decision.
Having exhausted the administrative process, the widow next sought judicial review of the
appeals panel’s decision denying her benefits. See id. §§ 410.251-.308 (governing judicial review).
The parties filed competing motions for summary judgment in the trial court. Both motions focused
on whether Sergeant Orozco’s travel at the time of his death was in the course and scope of his
duties with the sheriff’s department, and both incorporated the record from the contested-case
hearing as support for their respective views.
The trial court granted the widow’s motion, denied the county’s, and rendered judgment in
the widow’s favor. The county appealed, urging again that Sergeant Orozco’s death was not
compensable because his activity at the time of death (driving home after completing his extra-duty
employment at UTEP) was not in the course and scope of his job with the sheriff’s department.
Agreeing with the county, the court of appeals reversed, rendering judgment that the widow take
nothing. 545 S.W.3d at 645.
The judicial decisions in this case thus replicate the administrative rulings that preceded
them. The trial court, agreeing with the hearing officer, has concluded that Sergeant Orozco was
performing the duties of an El Paso County Deputy Sheriff at the time of his death. The court of
appeals, agreeing with the administrative appeals panel, has concluded that Orozco was off-duty and
serving his own private interests rather than those of the El Paso County Sheriff’s Department at the
time of the accident. Since the hearing officer’s decision, each successive appeal has reversed the
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decision that preceded it. With that daunting history in mind, we turn to the arguments in this, the
fourth and final appeal in the matter.
II
The widow argues that the patrol car, operated by her husband, was in the service of the
county’s official business and that her husband was similarly performing law-enforcement duties
for the sheriff’s department and county during his travel home from the extra-duty assignment. She
submits the summary judgment evidence unequivocally establishes that her husband was therefore
in the course and scope of his official duties at the time of his death.1 The county responds that, at
the time of the accident, Orozco was off duty, not being paid by the county, and not engaged in any
specific law-enforcement activity. The county submits that Orozco was merely returning to his
home from extra-duty employment, concluding that he remained off duty because that travel was
outside the course and scope of his employment.2
We have recently observed that “whether an officer is on or off duty does not determine
whether the officer’s conduct falls within the scope of his employment.” Garza v. Harrison, 574
S.W.3d 389, 403 (Tex. 2019). “Peace officers are . . . relatively unique among governmental
employees as they may be required to spring into action at a moment’s notice, even while off duty.”
Id. Because a peace officer is always a peace officer, even during off-duty hours, the capacity in
which an officer is acting can be nebulous when the officer has undertaken private employment
1
The Combined Law Enforcement Associations of Texas (CLEAT) has filed a brief as Amicus Curiae in
support of the widow.
2
The Texas Association of Counties, joined by the Texas Association of Counties Risk Management Pool, the
Texas Municipal League, the Texas Municipal League Intergovernmental Risk Pool, the Texas Conference of Urban
Counties, and the Texas Association of City Attorneys, have filed a brief as Amici Curiae in support of the county.
5
during off-duty hours. Id. But here we are not strictly concerned with Sergeant Orozco’s activities
or conduct at the UTEP football game. His employment there had ended before the accident.3 It is
Sergeant Orozco’s use of his patrol car for travel from that approved employment to his home that
is at issue. The dispute here is whether that activity or use was in the course and scope of his
employment.
Under the Workers’ Compensation Act, “course and scope of employment” means “an
activity of any kind or character that has to do with and originates in the work, business, trade, or
profession of the employer and that is performed by an employee while engaged in or about the
furtherance of the affairs or business of the employer.” TEX. LAB. CODE § 401.011(12). There are
two components to the statutory definition. An activity within the “course and scope of
employment” must (1) relate to and originate in the employer’s business and (2) further the
employer’s affairs. State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 276 (Tex. 2017).
As a general rule, travel to and from work does not originate in the employer’s business and,
in some instances, is expressly excluded from the course and scope of employment by statute. See
TEX. LAB. CODE § 401.011(12)(A) (excluding “transportation to and from the place of employment”
with exceptions). As we have explained, “travel to and from work makes employment possible and
thus furthers the employer’s business, satisfying the second component of the definition, but such
travel cannot ordinarily be said to originate in the business, the requirement of the first component,
because ‘[t]he risks to which employees are exposed while traveling to and from work are shared
3
Sergeant Orozco’s activities during his extra-duty employment did not cause his death. We thus do not decide
here whether, or to what extent, a peace officer’s workers’ compensation benefits might apply to an injury or death
occurring during an officer’s extra-duty employment.
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by society as a whole and do not arise as a result of the work of employers.’” Leordeanu v. Am.
Protection Ins. Co., 330 S.W.3d 239, 242 (Tex. 2010) (quoting Evans v. Ill. Emp’rs Ins. of Wausau,
790 S.W.2d 302, 305 (Tex. 1990)(alteration in original)). Even so, exceptions may exist for travel
that is an integral or required part of the employee’s work. Seabright Ins. Co. v. Lopez, 465 S.W.3d
637, 644-45 (Tex. 2015). The general exclusion of travel to and from work has its origins in the
common law, but the Legislature has since codified it as part of the act’s course-and-scope
definition. See TEX. LAB. CODE § 401.011(12)(A)(i-iii) (excluding “transportation to and from the
place of employment” with exceptions); see also Leordeanu, 330 S.W.3d at 241-43 (discussing the
history of employee travel and the course-and-scope inquiry).
Although the court of appeals did not purport to apply this exclusion from course and scope
to Orozco’s trip home, it nevertheless alluded to its underlying rationale for support, stating that
Orozco was merely “returning home from his private security assignment” and “at the moment of
the accident [indistinguishable] from any number of other commuters.” 545 S.W.3d at 644-45. That
activity, the court reasoned, did not relate to or originate in the work of the El Paso County Sheriff’s
Department or further its affairs, and thus “was not in the course and scope of his employment.” Id.
at 645. The court suggested that Sergeant Orozco’s travel might have been in the course and scope
of his employment had he engaged in a separate law-enforcement activity during the trip, such as
stopping to render aid or pursuing a traffic violation. See id. (concluding that Orozco was not in the
course and scope of his job as a peace officer because he “was not actively responding or engaging
in any type of law enforcement” during travel). But because “[h]e had not been contacted by the
police dispatcher to respond to a call or to engage in police duties, [] was not responding to an
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emergency such as a citizen in need of assistance, and [] was not engaged in a law enforcement duty
of preserving the peace,” he was, in the court’s view, not in the course and scope of his employment
at the time of the accident. Id. at 644.
The widow, of course, disagrees. She argues that the summary judgment evidence
conclusively establishes that her husband’s operation of his patrol car at the time of the accident was
in the course and scope of his duties as an El Paso County Deputy Sheriff. The widow relies on the
record from the contested-case hearing. Both she and the county incorporated that record into their
competing motions for summary judgment. The focus of the contested-case hearing was, as here,
on Sergeant Orozco’s use of his marked patrol car during off-duty hours, his employer’s policies and
procedures regarding that use, and their relationship to his travel home on the night of the accident.
Dolores Messick testified at the hearing. She is the sheriff’s chief deputy, and, as her title
implies, the sheriff’s second in command. The sheriff did not testify, having passed away several
months before the contested-case hearing. The record nevertheless includes documentary evidence
reflecting the sheriff’s view of Sergeant Orozco’s use of his assigned patrol car on the night of the
accident. According to the sheriff’s affidavit and other contemporary correspondence, Sergeant
Orozco was performing a law-enforcement function as an El Paso County sheriff’s deputy at the
time of his accidental death.
The chief deputy, who testified in the sheriff’s stead, explained departmental policies and
procedures concerning patrol cars and the use of take-home units. She confirmed that the sheriff’s
department provided Sergeant Orozco a marked patrol car and authorized him to take the unit home
at work’s end. She also authenticated the sheriff’s policy manual, which was included in the record.
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Chapter 9.1 of that manual states the department’s operational view that department vehicles are not
for personal use but rather “are provided for the enforcement of laws, responding to emergencies
. . . the ultimate protection of all citizens, officers and property . . . [and] to support functions of the
Department.” Department policy thus limited the use of department vehicles to official business,
and official business could include extra-duty employment, if approved by the division commander.
Sergeant Orozco’s request to use his patrol car in connection with the UTEP job was approved by
the division commander.
Chief Deputy Messick further explained Sergeant Orozco’s duties as a member of the patrol
division. Those duties included patrolling the county, enforcing traffic laws, answering calls, and
presenting a physical law-enforcement presence on the streets. She also testified about the use of
patrol cars within that division. The chief deputy explained that department policy required officers
to notify dispatch “10-8” before commencing operation of a vehicle, meaning that the officer was
clear of other assignments, back in the patrol car, and available for calls. She further explained that
an officer with a take-home unit was also required to notify dispatch on arriving home that the car
and deputy were no longer in service or available to take calls. The chief deputy testified that the
policy applied equally to extra-duty assignments and that Sergeant Orozco would have notified
dispatch that he was back in his unit after completing the UTEP assignment. When asked by the
county’s lawyer whether Orozco had in fact followed this policy, the chief deputy reported that he
had, referring to a conversation with the chief dispatcher that Orozco checked in through the patrol
unit’s laptop before leaving UTEP. The chief deputy also agreed with the sheriff’s assessment that
Sergeant Orozco was in the course and scope of his employment with the department during the
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authorized operation of his marked patrol car between UTEP and his home and that his accidental
death during that trip was therefore in the line of duty. The policy manual defines a line-of-duty
death as “the death of an active duty sworn officer by felonious or accidental means during the
course of performing a law enforcement function while on- or off-duty.”
Contrary to the assessment of the sheriff and chief deputy, the county contends that Sergeant
Orozco’s operation of his patrol car on the night of the accident was not a law-enforcement function
and thus not an activity within the course and scope of his employment. Instead, the county
maintains that Orozco’s use of his patrol car to commute to and from the extra-duty employment was
a purely personal activity. As such, the county concludes it neither originated in nor furthered the
work of the sheriff’s department.
The court of appeals agreed with the county. See 545 S.W.3d at 645. We do not. The
county’s argument is premised on the notion that either the sheriff violated his own policy manual
by authorizing Orozco’s personal use of the patrol vehicle on the night in question or that the sheriff
properly authorized the vehicle’s use for official business that night, but not its operator. The
summary judgment evidence dispels both notions.
The summary judgment record establishes that Sergeant Orozco’s patrol car, although
authorized as a take-home unit, was not for his personal use. Per department policy, it could only
be used for official business. Travel to and from an extra-duty assignment, however, could qualify
as an official use of the patrol car, if approved. Here, it was approved for that purpose. Orozco’s
operation of his patrol car at the time of his death was thus an authorized and official use of the
government vehicle. Orozco may not have been on duty at the time of the accident, at least in the
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sense that the county was paying for his time, but the county was paying for Orozco’s patrol car and
directing its use. The question is whether that activity—Orozco’s authorized operation of a marked
patrol car on the roads of El Paso County—satisfies the statute’s basic test for course and scope.
We conclude that it does.
The statutory test asks whether the activity producing injury relates to, originates in, and
furthers the employer’s business affairs. TEX. LAB. CODE § 401.011(12). The operation of a marked
patrol car on the public streets is an activity that clearly relates to and originates in the work or
profession of the El Paso County Sheriff’s Department. Patrolling El Paso’s roads is a significant
part of the department’s work. Moreover, having uniformed deputies in marked patrol cars on El
Paso streets furthers the work of the sheriff in preserving the peace and in responding to citizens in
need of assistance. We conclude that the authorized operation of a marked patrol car on the public
streets by a uniformed deputy sheriff engaged in what the sheriff’s department considers its official
business is an activity within the course and scope of the deputy’s employment.
III
Even though we have concluded that Orozco’s travel originated in his employer’s work and
furthered its affairs under the statute’s basic definition of course and scope, the county maintains that
Orozco’s travel must still be analyzed under the statute’s two exclusions. See TEX. LAB. CODE
§ 401.011(12)(A), (B) (excluding certain travel-related activities). These exclusions pertain
specifically to travel-related injuries and further circumscribe the course-and-scope inquiry. The
court of appeals found the application of these exclusions unnecessary in accordance with its view
of the patrol car as a purely personal conveyance in this instance. 545 S.W.3d at 645. Although we
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disagree with that view, we recognize that the court of appeals’ judgment in the county’s favor may
nevertheless be correct if either exclusion were to apply.
The statutory definition of the term “course and scope of employment” excludes two types
of travel. First, the statute generally excludes “transportation to and from the place of employment.”
See TEX. LAB. CODE § 401.011(12)(A). This exclusion, commonly referred to as the coming-and-
going rule, is subject to several exceptions. Id. § 401.011(12)(A)(i-iii); see also Janak v. Tex.
Emp’rs’ Ins. Ass’n, 381 S.W.2d 176, 178 (Tex. 1964) (noting the exclusion’s colloquial name).
Second, employee travel that is for both personal and business reasons is excluded from course and
scope, absent certain conditions. See id. § 401.011(12)(B)(i-ii). This type of dual-purpose travel
is covered when the employee’s travel would have been made notwithstanding the employee’s
personal reasons and would not have been made without a business reason. See Leordeanu, 330
S.W.3d at 243 (“[A]n employee traveling for both business and personal purposes is in the course
and scope of employment only if the business purpose is both a necessary and sufficient cause for
the travel.”). The dual-purpose rule developed under common law “for the distinct situation in
which the employee is traveling between work and a place other than home.” Id. at 245. The county
has argued both the coming-and-going rule and the dual-purpose rule, albeit in different courts.
In the trial court, the county argued the coming-and-going rule in its motion for summary
judgment and in its response to the widow’s competing motion. Changing course, the county now
contends that the dual-purpose rule excludes the travel at issue from coverage, arguing further that
the coming-and-going exclusion does not apply after all. As noted, the court of appeals did not
expressly apply either exclusion, although it did rely in part on a rationale associated with the
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coming-and-going rule to support its course-and-scope analysis. 545 S.W.3d at 645 (“We see
nothing which would distinguish Ruben [Orozco], at the moment of the accident, from any number
of other commuters.”). The coming-and-going rule assumes that traveling on public roads is a risk
shared by members of the general public, and not one that is ordinarily incidental to employment.
Evans v. Ill. Emp’rs Ins. of Wausau, 790 S.W.2d 302, 305 (Tex. 1990). Exceptions exist, however.
For example, transportation to and from employment is not necessarily excluded from course and
scope when the employer pays for the transportation or exercises control over it. TEX. LAB. CODE
§ 401.011(12)(A)(i-ii). Both of these exceptions to the coming-and-going exclusion apply here: the
county provided Sergeant Orozco’s patrol car and controlled its use. The coming-and-going rule
thus does not exclude Sergeant Orozco’s travel from course and scope if, as we have determined,
the travel otherwise originated in and furthered his employer’s affairs.
The county presently argues that the dual-purpose rule applies to Sergeant Orozco’s travel
here and excludes it from being in the course and scope of his employment. The dual-purpose rule
and coming-and-going rule are distinct exclusions. We have held them to be mutually exclusive,
concluding that travel to and from work is governed solely by the coming-and-going rule, while all
other travel is subject to the dual-purpose rule. See Leordeanu, 330 S.W.3d at 248. Thus, if the
coming-and-going rule applies to the travel at issue, the dual-purpose rule does not. Id.
The county’s present argument, as distinguished from its contention in the trial court, is that
the coming-and-going rule does not apply because Sergeant Orozco’s travel was not between his
home and his place of employment with the county but rather between his home and outside
employment. We disagree that the travel here concerns “outside” employment.
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Chapter 5.5 of the sheriff’s policy manual distinguishes between “outside” and “extra-duty”
employment. Outside employment “is secondary employment in which the use of law enforcement
powers is not anticipated.” Extra-duty employment, on the other hand, anticipates the use of actual
or potential law-enforcement powers, and employees working extra-duty assignments “operate under
all applicable policies and procedures of the Department.” Approved extra-duty employment
involves law enforcement; approved outside employment does not. Department vehicles can be used
for extra-duty employment, but their use is “not [] allowed for any off-duty employment.” Nor
would a deputy sheriff be allowed to wear his uniform, gun, and badge for outside employment. The
sheriff’s policy manual thus treats extra-duty employment as a continuation of the law-enforcement
duties exercised by the department’s deputies during their normal work hours for the county.
Sergeant Orozco may have been paid by UTEP for his work during the football game, but the focus
of our analysis is his return trip home from the extra-duty employment, which was no different from
similar travel at the end of a day of work for the county. Departmental policy required that he
maintain contact with the department by checking in with dispatch on entering or exiting his patrol
car. And when traveling home at the end of his tour, Sergeant Orozco was required to inform
dispatch of his arrival there and advise that he and the vehicle were no longer in service.4 In this
instance, however, Sergeant Orozco did not make it home.
The county argues that no evidence exists that Orozco actually followed this procedure on
the night in question, suggesting that this fact’s existence should control our decision about course
4
These considerations regarding Sergeant Orozco’s return trip are unique to the law enforcement context.
Moreover, we express no view on whether they have a role to play in analyzing who his employer would be for workers’
compensation purposes had he been injured during his extra-duty employment. See n.3, supra.
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and scope. We doubt it does, but of more significance here is that this fact was not in dispute below.
The widow asserted it as an undisputed fact that her husband “contacted the Sheriff’s dispatch as
he left the extra-duty assignment that he was in route to his home and available for calls” in her
motion for summary judgment. The county appeared to agree. In response to the widow’s motion
and also in its own motion for summary judgment, the county stated that it “agrees with the
Undisputed Facts stated in Plaintiff’s Motion for Summary Judgment, and depends upon the
evidence attached to that Motion, incorporating it herein as though it were fully annexed hereto.”
That evidence included testimony elicited by the county from Chief Deputy Messick, which
confirmed that Sergeant Orozco had indeed contacted dispatch after completing his extra-duty
employment. That is what he was required to do under the sheriff’s policies and procedures, all of
which he was required to follow in connection with his extra-duty employment.
We therefore conclude that the authorized operation of his patrol car to and from the
approved extra-duty assignment was a law-enforcement activity no different from similar travel
during Sergeant Orozco’s on-duty work for the county. We further conclude that this activity
originated in the work of the El Paso County Sheriff’s Department and was performed in furtherance
of its and the county’s affairs. Finally, we conclude that the coming-and-going rule applies to the
travel at issue, but that exceptions to that rule apply as well so as not to exclude this travel from the
statute’s basic definition of course and scope. See TEX. LAB. CODE § 401.011(12)(A)(i-ii). And
because the travel here is governed by the coming-and-going rule, it is not also subject to analysis
under the dual-purpose rule. Leordeanu, 330 S.W.3d at 248.
***
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The judgment of the court of appeals is reversed and judgment rendered to reinstate the trial
court’s summary judgment in the widow’s favor.
______________________________
John P. Devine
Justice
OPINION DELIVERED: March 20, 2020
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