Texas Supreme Court holds deputies travel home from approved extra-duty work at football game was within “course and scope” of employment for worker’s compensation purposes


Mary Orozco v County of El Paso, 17-0381(Tex. March 20, 2020)

This is a worker’s compensation case, but the key issue is whether the deputy who died in a vehicular accident while driving his assigned patrol car, was in the course and scope of his employment.  The  Texas Supreme Court held he was within the course and scope.

Orozco was killed instantly when a wheel from another vehicle came loose and crashed through his patrol car’s windshield on the expressway. At the time of his death, Orozco was a sergeant with the El Paso County Sheriff’s Department. However, Sergeant Orozco was not scheduled to work for the department that night. He instead worked an extra-duty assignment at a University of Texas El Paso (UTEP) football game.  Because the work at UTEP was extra-duty employment (and not considered off-duty) and might entail the use of an officer’s law-enforcement powers under the policy manual, 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, which is when the accident occurred. His surviving spouse filed a claim under the Worker’s Compensation Act.  The County asserts the claim should be denied.  All procedural administrative steps were taken and suit was filed. The Court of Appeals ruled in favor of the County and the widow appealed.

The Texas Supreme Court recently held the question of whether an officer is on or off duty does not determine whether the officer’s conduct falls within the scope of his employment. “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.” 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. While the parties made arguments regarding his status at the football game, the Court held that was not the focus. It is Sergeant Orozco’s use of his patrol car for travel from that approved employment to his home that is at issue.

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.  While exceptions may have previously existed for travel that is an integral or required part of the employee’s work, the Legislature has since codified its definition of course-and-scope which controls.  The Court analyzed a lot of the record and testimony and determined that Orozco’s “use” of the vehicle was authorized and not purely for personal use. Further, the statutory test asks whether the activity producing injury relates to, originates in, and furthers the employer’s business affairs. 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.

The statutory definition of the term “course and scope of employment” excludes two types of travel- the coming-and-going rule and the dual-purpose rule.  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. Here  it appears undisputed that Orozco “contacted the Sheriff’s dispatch as he left the extra-duty assignment that he was in route to his home and available for calls.”  After analyzing numerous parts of the record which made clear he was subject to call while driving home and was required to respond to emergencies if observed, the Court concluded that the authorized operation of Orozco’s patrol car to and from the approved extra-duty assignment was a law-enforcement activity similar to his on-duty work for the county.  As a result, his death occurred during the course and scope of his employment.

If you would like to read this opinion click here. The docket page can be found here.

Recovery of workers’ compensation benefits is a legal beneficiary’s exclusive remedy against City for the death of a covered employee


Joslyn M. Johnson, Individually and as Executrix for the Estate of Rodney Johnson, Deceased v. City of Houston, 14-15-00176-CV (Tex. App. – Houston [14th Dist.] March 29, 2016)

This is a wrongful death action for an officer killed in the line of duty where the 14th Court of Appeals affirmed the granting of a plea to the jurisdiction.

This is the second opinion in this case with the factual background being explained in the first opinion. Essentially Houston police officer Rodney Johnson was patrolling alone in his patrol car when he stopped Juan Leonardo Quintero–Perez for speeding.   Quintero–Perez killed Johnson after Johnson placed him in the backseat of the patrol car. Johnson’s widow (also a HPD officer) sued for a variety of claims. The first court of appeals opinion dismissed her exemplary damages claims.  The case went up and down to federal court with multiple amendments. Upon returning to state district court the City argued, among other things, that Johnson “cannot recast her claims to avoid an immunity bar,” and that recovery of workers’ compensation benefits was Joslyn’s exclusive remedy against the City for Rodney’s death. In the same document, the City also sought traditional summary judgment on the grounds of res judicata, the law of the case, and the exclusive remedy provisions of the Texas Workers’ Compensation Act. The trial court granted the City’s plea to the jurisdiction and in the alternative, granted the City’s Motion for Summary Judgment.

Johnson argues that the Houston Police Department General Order No. 500-05 violates federal law, and that this alleged violation of federal law was a producing or proximate cause of Rodney’s death.  The general order permitted officers to contact federal immigration authorities only regarding a person arrested on a separate criminal charge other than a class C misdemeanor, and only if the officer knew that the person was in the country illegally.  Since Quintero–Perez was illegally in the country but stopped for a class C misdemeanor, Johnson would not have known of his immigration status.   However, that does not state a cause of action for which immunity is waived. Further, Joslyn admits that she received workers’ compensation benefits. Under the Texas Workers’ Compensation Act, recovery of workers’ compensation benefits is a legal beneficiary’s exclusive remedy against a governmental employer for the death of a covered employee on the job.  Nothing in Joslyn Johnson’s pleadings state a claim against the City.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. Panel: Justice Christopher, Justice McCally and Justice Busby. Memorandum Opinion by Justice Christopher.  The attorneys listed for Johnson are Ben Dominguez II and David Medina.  The attorney listed for the City is John B. Wallace.

Injured worker’s claims get partially revived by 4th Court of Appeals.


Jose Luis Pena v. County of Starr, 04-12-00462-CV (Tex. App. – San Antonio, December 18, 2013).

This is an appeal from the granting of a summary judgment in an employment case involving disability, discrimination, retaliation, and FMLA claims which the 4th Court of Appeals affirmed in part and reversed in part.

Pena was hired as an animal control officer by Starr County who was injured on the job. While undergoing treatment it was discovered he had a life-threatening condition and would miss additional work to undergo surgery. Complications arose, and while hospitalized the County terminated his position. At the time of termination he was 58 years old. Pena sued, however, the trial court granted the County’s summary judgment motion. Pena appealed.

As to the FMLA and ADA claims, the County argued Pena did not file a request for FMLA leave before his surgery.  However, the San Antonio Court of Appeals pointed out that that procedure is required for “foreseeable” leave. Pena was only supposed to be gone a week, but complications during the surgery kept him away from work much longer. Pena, through is daughter, informed the County as soon as he felt practical under the circumstances. Pena raised a fact issue as to the timeliness of the notice.  The court also analyzed the relation-back doctrine as to the statute of limitations defense under the FMLA and determined it applied.

As to the other claims, Pena did not point to any evidence he was replaced by a younger employee or that there is a connection to his age. His testimony established he believes he was terminated because of his injury and condition. So, summary judgment was proper for the age discrimination claims.  As far as the disability discrimination claims under Texas law are concerned, the court noted that while the County may have established the back injury was not a disability, the life-threatening cardio disease could have been.  The County did not address this issue, which makes summary judgment improper. Finally, the court agreed with the County that the trial court lacked subject matter jurisdiction for the Worker’s Comp. retaliation claim since sovereign immunity has not been waived for such claims.

If you would like to read this opinion click here.

Texas Supreme Court says exhaustion of administrative remedies required in order to sue on settlement


This is a Texas Supreme Court opinion which centers on the lack of jurisdiction for failure to exhaust administrative remedies.  The underlying facts are related to a worker’s compensation claim, but the case does not really affect current claims since the Court was interpreting the statute as it existed in 1988.   However, the significant premise of this case is that even though the City entered into a settlement agreement in 1988, in order to bring suit for its breach, Plaintiff Rhule was still required to exhaust his administrative remedies as he should have done at the time of the settlement (i.e. submit his claim to the Industrial Accident Board [now the Texas Workforce Commission] prior to filing suit).  This holding can affect any claim which has an exhaustion of administrative remedies component.

Rhule was an injured City of Houston firefighter injured on the job. The City entered into a settlement agreement for a sum plus “lifetime open reasonable and necessary medical [expenses]”.  The City paid until 2004 when it determined his current medications and treatment were not related to the 1988 injury.  Rhule sued for breach of the settlement agreement, won at the trial court, which the court of appeals affirmed.

The Court’s analysis turns on whether the Commission has exclusive jurisdiction over Rhule’s claim. The Worker’s Compensation Act at the time had a provision noting that any dispute over a settlement or judgment to pay must be submitted to the Board (i.e. now the Commission).  The Court held this language granted the Commission exclusive jurisdiction over the claim and since Rhule did not submit the breach to the current Commission, the trial court was without jurisdiction to hear the case.  The judgment is reversed and rendered.

If you would like to read this opinion click here.

Substantial evidence exists to support unemployment benefits despite counter-evidence


McCrory  v. Henderson and Texas Workforce Commission, 14-12-00752-CV (Tex. App. – Houston [14th Dist.], September 19, 2013).

This is an appeal from the Texas Workforce Commission’s awarding of unemployment benefits.  Henderson (a female temporary employee) quit due to the alleged sexual harassment by her supervisor.  McCory asserted she did not give it the opportunity to remedy the situations and she too engaged in sexually suggestive conduct.  The Houston Court of Appeals held it did not disagree (double-negative) that evidence supported Henderson was suggestive, but evidence also supported sexually suggestive and harassing activity by her supervisor. Additionally, Henderson informed management of the problem but no action was taken and she felt compelled to resign. The court would not substitute its own judgment for the TWCs.  Substantial evidence supported the awarding of benefits so the judgment is affirmed.

If you would like to read this opinion click here.

Hospital immune from Worker’s Comp retaliation claims.


Burt v. Andrews County Hospital District d/b/a Permian Regional Medical Center, 08-11-00109-CV (Tex. App. – El Paso, July 24, 2013).

This is a worker’s compensation retaliation case where the court recognized the applicability of the Texas Supreme Court’s opinion in Travis Central Appraisal District v. Norman, 342 S.W.3d 54 (Tex. 2011) noting the Worker’s Compensation Act amendments no longer waiver sovereign immunity for governmental entities for retaliation claims.

Plaintiff Burt filed suit against her former employer, Andrews County Hospital District d/b/a Permian Regional Medical Center, alleging retaliatory discharge under Chapter 451 of the Texas Labor Code and intentional infliction of emotional distress.  Not a lot of factual background is given regarding the case, since none was relevant to the holding. The trial court granted the Hospital’s summary judgment and Burt appealed.

Twenty-five days after Burt filed her notice of appeal, the Texas Supreme Court issued its opinion in Norman.  The Eighth Court of Appeals noted that when applicable law changes during the pendency of an appeal, it must render its decision in light of the change.  And since the Hospital retains immunity from suit, which is jurisdictional, the Hospital’s argument based on the Norman decision can be raised for the first time on appeal.

If you would like to read this opinion click here.

Temporary Employee barred by Worker’s Compensation Act from negligence claims even though paid through staffing agency.

The City of Dallas v. Frederick Salyer, 05-12-00701-CV (Tex. App. – Dallas, July 1, 2013)

This is an interlocutory appeal where the City argued Salyer was a city employee not an independent contractor and the Worker’s Compensation laws precluded her negligence action for an on-the-job injury. The Dallas Court of Appeals agreed and dismissed the lawsuit.

Salyer was a temporary employee assigned to work for the City by a staffing agency.  She was assigned to the Bachman Transfer Station where dump trucks deposited refuse. While working, a City dump truck backed into him causing injuries. Salyer filed suit under the Texas Tort Claims Act asserting the City had waived immunity for negligent actions arising out of the operation or use of a motor vehicle. Tex. Civ. Prac. & Rem. Code §101.021(1) (West 2011). He also argued that he was an independent contractor so the Worker’s Compensation Act exclusion did not apply. Additionally, he asserted the exclusion clause is an affirmative defense which does not affect jurisdiction. The City filed a plea to the jurisdiction which was denied. The City appealed.

The Dallas Court of Appeals first noted that pursuant to the recent Texas Supreme Court case of City of Bellaire v. Johnson, No. 11–0933, 2013 WL 2450151 (Tex. June 7, 2013), the Worker’s Compensation Act is a jurisdictional bar, not an affirmative defense. Second, the court noted recognized the key issue was whether or not Salyer was an employee or not and analyzed the type of control the City had over him. Salyer was undisputedly paid by the City through the staffing company based on hours worked, assigned his work schedule and tasks, and provided equipment for work. Based on the evidence in this case, the court determined Salyer was an employee, not an independent contractor.  Interestingly enough, the court noted the City’s response to interrogatories stating Salyer was not a “borrowed servant” (and were Salyer’s counter to the City’s plea) were not factual admissions but legal conclusions non-binding on the court. Therefore no fact issue existed precluding the granting of the plea. The court reversed and rendered dismissing Salyer’s case.

If you would like to read this opinion click here.

Tex. Supreme Court holds borrowed employee from contractor barred from negligence under Worker’s Comp. exclusivity

City of Bellaire v Johnson, no. 11-0933, slip op. (Tex. June 7, 2013)

This is a Texas Supreme Court case in which the Court determined the definition of “employee” for purposes of the Worker’s Compensation Act bar includes “borrowed” employees from independent contractors.

The City paid Magnum Staffing Services for its services of providing temporary employees.  Mangum, in turn paid Plaintiff Johnson, based on the hours he reported to the City. The City set Johnson’s work schedule, gave him his assignments, and supervised his work. Magnum had no role in overseeing Johnson’s work.  While at work, Johnson was injured and lost an arm due to an encounter with a garbage truck driven by Larsen, a City employee. Johnson sued Larsen and the City for tort and both Defendants filed a plea to the jurisdiction asserting the Worker’s Compensation Act is the exclusive remedy available.  The trial court granted the plea, the court of appeals reversed, and the Supreme Court granted the petition for review.

The Court, for comparative purposes, reiterated the court of appeals reasoning that the exclusive remedy bar did not apply unless Johnson was actually covered, as distinct from being legally required to be covered.  Additionally, the court of appeals held a fact question existed as to whether Johnson was a City employee.

Without much analysis or explanation, the Supreme Court simply stated NO and since the City controlled Johnson’s activities he was a “paid employee” whose exclusive remedy was under the Worker’s Compensation Act.  Additionally, the City and Larsen retained sovereign immunity.  The City’s immunity from Johnson’s suit would be waived by the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A) (waiving immunity from suit for injury from the operation of a motor-driven vehicle), but for the exclusive-remedy bar provided by the Texas Workers’ Compensation Act, id. § 101.021(1)(B) (motor vehicle waiver applies only if the government employee operating the vehicle could be personally liable to the claimant according to Texas law). Thus, if the bar applies, immunity was not waived. And since the bar does apply, the trial court properly dismissed Johnson’s claims.  The Court reversed and rendered.

If you would like to read this opinion click here.