joined by Justice DOGGETT, dissenting.
The majority holds that a volunteer reserve deputy sheriff whom the county appoints to carry out law enforcement duties, who carries all the devices and emblems of a law enforcement officer, and who answers calls in the same manner as any police officer is not an “employee” for purposes of the Texas Tort Claims Act. Today’s decision means that a county is not liable for the negligent actions of a person who functions as its agent or employee but does not receive a paycheck, thereby creating a legal anomaly that holds government to a lower standard of responsibility than it has when it must pay for services. Because I believe that Texas law imposes liability in cases of such unpaid agents, I dissent.
*169The Texas Tort Claims Act imposes liability on the state for the negligent acts of an agent appointed to carry out the duties of a paid state employee. Smith v. University of Texas, 664 S.W.2d 180, 190 (Tex.App.—Austin, 1984, writ ref'd n.r.e.); see also Restatement (2d) of Agency § 225 (1956) (“One who volunteers without the agreement for or expectation of reward may be a servant of one accepting such services”). Furthermore, a volunteer has the same status as an employee under the Texas Tort Claims Act if the employer retains the right to direct the duties of the volunteer, has an interest in the work to be accomplished, accepts direct or incidental benefit from the volunteer’s work, and has the right to fire or replace a volunteer. Smith, 664 S.W.2d at 190, citing El Paso Laundry Co. v. Gonzales, 36 S.W.2d 793, 795-96 (Tex.Civ.App.—El Paso 1931, writ dismissed); see also 53 Am.Jur.2d § 413 (one of the tests for a master-servant relationship as a basis for holding the master hable for a servant’s wrongful acts is the power of the alleged master to select and discharge the servant).
The evidence is- clear that the Harris County Sheriffs Department had the right to direct Deputy Skeen’s duties, had the right to fire him, and accepted the benefit of his services. Although a volunteer, Skeen performed the same duties as paid employees and served at the direction of the Sheriffs Department. Because of these facts, the court of appeals was correct in holding that the County waived its immunity under the Texas Torts Claim Act. 841 S.W.2d at 555-56.
The majority misconstrues Smith by interpreting it as a pure negligent failure to supervise case. But the Smith opinion expressly and unequivocally states: “a claim under the [Tort Claims] Act can arise through the negligence of an agent duly appointed to carry out the duties of the paid state employee.” 664 S.W.2d at 190.
Today’s decision allows governmental entities to immunize themselves from liability by appointing volunteers to perform governmental functions. In no situation will the consequences be more grave than in circumstances involving volunteer peace officers. It is, in fact, the height of governmental irresponsibility to, with impunity, authorize unpaid agents to carry weapons, issue them badges and credentials, allow them to utilize police radios and “Kojak” lights for their private vehicles, and then turn them loose on an unsuspecting public to carry out the duties of paid police officers. It is apparent, however, that no matter how grossly these agents may abuse their accoutrements of official authority, today’s majority opinion insulates the government from liability for their actions. Because I believe that the court of appeals was correct in holding that the Tort Claims Act covers this situation, I would affirm.