dissenting.
Upon reading the majority opinion, one might conclude that the meaning of the Texas Tort Claims Act is clear; that a governmental unit can never be liable for the actions of a volunteer; and that the arguments presented by the Plaintiffs have no basis in existing law. None of these conclusions are true. In fact, until today’s opinion, the arguments presented by the Plaintiffs had a reasonably strong footing in Texas law. Because rendering judgment against the Plaintiffs under these circumstances is unfair, and because the majority opinion sweeps too broadly in foreclosing recovery, I dissent.
The Texas Tort Claims Act provides that a governmental unit may be held responsible, in certain situations, for the conduct of “an employee acting within his scope of employment.” Tex.Civ.Prac. & Rem.Code § 101.-021(1). The Act defines “employee” consistently with the term’s ordinary meaning: an employee is one who is “in the paid service of a governmental unit by competent authority.” Id., § 101.001(1). A literal reading of the statute would thus prevent a volunteer from obtaining “employee” status.
Texas courts have previously held, however, that a volunteer worker, while not technically an “employee,” has the same legal status as an employee whenever the employer has a right to direct the volunteer’s duties, has an interest in the work to be accomplished, accepts the benefits of the volunteer’s work, and has the right to fire or replace the volunteer. Smith v. University *170of Texas, 664 S.W.2d 180, 190 (Tex.App.— Austin 1984, writ ref'd n.r.e.) (citing El Paso Laundry Co. v. Gonzales, 36 S.W.2d 793, 795-96 (Tex.Civ.App.—El Paso 1931, writ dismissed)). The rationale underlying this view, as explained by the El Paso Laundry court, is straightforward: having acquiesced in and benefitted from the services of a worker, an employer should not be allowed to disclaim liability on the basis that the worker was only a volunteer. 36 S.W.2d at 795.1
The only previous case addressing a volunteer’s status under the Tort Claims Act is Smith v. University of Texas. Rather than adhering solely to the literal definition of “employee” contained in section 101.001(1), the Smith court adopted the reasoning of the El Paso Laundry court, and concluded that a claim under the Tort Claims Act can arise through the negligence of a volunteer appointed to carry out the duties of a paid employee. 664 S.W.2d at 190.
In the present case, as in Smith, a volunteer was appointed to carry out the duties of a paid employee. James Skeen served as a reserve deputy sheriff at the discretion of the Harris County Sheriffs Department. The Department had the right to direct Skeen’s duties, had the right to fire or replace him, and accepted the benefit of his services. Skeen was authorized to answer calls involving even serious crimes, and he had often patrolled in his own car. He had on occasion placed himself in the line of duty without being called to active duty by the Sheriffs Department; and he had never been reprimanded or told not to respond to problems or crises when he was off-duty.
Under Smith, Skeen would plainly have the same legal status as an employee. During oral argument of this cause, Harris County did not even attempt to reconcile its position with the reasoning of Smith; rather, it candidly asserted that the Smith court’s analysis was “incorrect.” The majority, in contrast, attempts to distinguish Smith by asserting that liability in that case was not predicated on the actions of volunteers. This argument ignores the Smith court’s discussion of “the negligence of an agent duly appointed to carry out the duties of the paid state employee.” 664 S.W.2d at 190 (emphasis in original).2 The Smith court expressly rejected the argument the majority approves today — that since the negligent actor was a volunteer, the governmental unit could not be liable because the actor was not a paid employee within section 101.001(1) of the Tort Claims Act. 7d3
The majority’s discussion of Smith implies that liability for a volunteer’s actions may be predicated on a claim of negligent supervision of the volunteer. That implication raises the possibility that the Plaintiffs in this case made a tactical error: namely, they should have brought a negligent supervision claim against Skeen’s supervisors. Prior case law, however, suggests that training and supervision may be discretionary duties for which the County cannot be held liable. See County of Brazoria v. Radtke, 566 S.W.2d 326, 330 (Tex.Civ.App.—Beaumont 1978, writ ref'd n.r.e.) (citing the statutory predecessor to Tex.Civ.Prac. & Rem.Code § 101.056). While Radtke ⅛ reasoning may be questiona*171ble,4 the Plaintiffs’ decision to steer clear of it is understandable. Until today, the case law appeared unfavorable toward a claim for negligent supervision, but favorable toward a claim for the negligent actions of a volunteer.
The Plaintiffs’ focus on Skeen, rather than his supervisors, is all the more understandable in light of chapter 102 of the Civil Practices and Remedies Code, which allows a local government to pay damages awarded against an employee. The definition of “employee” in section 102.001(1) — which the trial court submitted as an instruction — expressly includes volunteers.5
This Court has previously recognized the difficulty of understanding and applying section 101.021 of the Tort Claims Act, and has urged the legislature to clarify the extent to which this provision waives governmental immunity. See Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 (Tex.1989); Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex.1983); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 301-03 (Tex.1976) (Greenhill, C.J., concurring). The Tort Claims Act is particularly confusing in its treatment of police-related activities, which are subject to multiple exclusions and exceptions. See County of Brazoria v. Radtke, 566 S.W.2d at 330 (Keith, J., concurring).
In view of the confusion surrounding the Tort Claims Act, I believe the Plaintiffs’ reliance on existing case law was reasonable— even if that case law is erroneous, as the County contends. Under these circumstances, the Plaintiffs are entitled to a remand in the interest of justice. See Tex.R.App.P. 180; Robert W. Calvert, “... in the interest of justice.”, 4 St. Mary’s L.J. 291, 297 (1972). Remand is especially appropriate when, as here, this Court has announced a change in prevailing law. See, e.g., Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990); L.M.B. Corp. v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966).
Given the opportunity to replead, the Plaintiffs in this case could seek to establish that the death of Lila Jean Dillard, and the injuries to Stephanie Hunold, were caused by Harris County’s failure to adequately train and supervise its volunteer deputies. Because the Plaintiffs are entitled to that opportunity, I would reverse and remand this cause in the interest of justice.
. The majority appears to dispute that El Paso Laundry supports this proposition. Supra, n. 1. The employer in El Paso Laundry asserted that "under the facts, Pedro, Jr., was only a volunteer and as such could not recover.” 36 S.W.2d at 794. The court rejected this argument, holding that the employer, "after having knowledge of the facts and having acquiesced in the presence of Pedro, Jr., and having accepted the benefits of his labor, cannot now be heard to say that he was only a volunteer.” 36 S.W.2d at 795.
. The majority’s explanation of Smith is also at odds with the deposition testimony of the plaintiff in that case, as presented in the defendant’s application for writ of error, still on file with this Court:
Q: And it is your sole contention in this lawsuit that the act of John Drolla [the volunteer] just before this accident occurred is what caused you to be hurt?
A: Yes, sir.
Q: And that is the only reason you were hurt?
A: Yes, sir.
. The Smith court referred to "§ 2(3) of the Act,” which was the statutory predecessor of § 101.-001(1). See Tort Claims Act, 61st Leg., R.S., ch. 292, § 2(3), 1969 Tex.Gen.Laws 874, 875, repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9(1), 1985 Tex.Gen.Laws 3242, 3322 (enacting Texas Civil Practice and Remedies Code).
. Compare Radtke, 566 S.W.2d at 330, with Huddleston v. Maurry, 841 S.W.2d 24, 29 (Tex.App.—Dallas 1992, writ dism'd w.o.j’) (officers’ actions in pursuit did not involve matters within their discretion); see also Sem v. State, 821 S.W.2d 411, 415 (Tex.App.—Fort Worth 1991, no writ) (State may be liable for negligent exercise of control and supervision over contractor's employees).
. All of the disagreement over the definition of “employee” could have been avoided if the legislature had drafted section 101.001(1) in a manner consistent with section 102.001(1). The latter provision represents an acknowledgement that local governments should in some circumstances bear responsibility for the conduct of volunteers; and the assumption of this responsibility would not be an unreasonable burden, since the current definition in section 101.001(1) already excludes “a person who performs tasks the details of which the governmental unit does not have the legal right to control.” The inclusion of the word "paid” in section 101.001(1) only leads to arbitrary results, as this case demonstrates: until the word is removed, a governmental unit may escape liability for the conduct of workers within its control simply by assigning volunteers to carry out the duties of paid employees.