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.

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