The self-insured County of El Paso, Texas, appealed a summary judgment motion by the lower court that the evidence in this case conclusively established that a deputy sheriff was acting in the "course and scope of employment" when his marked police vehicle was involved in a collision and he was killed on the way home from an "extra-duty" assignment. This case is Cty. Of El Paso v. Orozco, No. 08-15-00079-CV, 2016 WL 7384195 (Tex. App. Dec. 21, 2016).

Ruben Orozco was a sergeant with the El Paso County Sheriff's office, who self-insure for workers compensation incidents. Orozco was a member of the patrol division and acted as leader of the crisis negotiation team. As a member of the patrol division he patrolled the county, enforced laws, and answered calls for help. As the leader of the crisis negotiation team Orozco was specifically trained to deal with hostage negotiation and was on call twenty-four hours a day. As defined by the El Paso County Sheriffs Manual, an "extra-duty" assignment is secondary employment where actual or potential use of law enforcement powers is anticipated. Because Orozco was the team leader of the crisis negotiation team, he was allowed to drive a marked patrol vehicle to and from work and wear his official uniform.

At 1:30am on September 17, 2005, Orozco was heading home after working an extra-duty security assignment for the University of Texas at El Paso. He contacted dispatch to tell them that he was en route to his 1042, which is code for heading home. Soon after, a vehicle travelling in the other direction lost a wheel, which bounced over the center divider and struck Orozco's windshield, killing him.

Orozco's wife Mary filed a claim for death benefits from El Paso County pursuant to the Texas Workers' Compensation Act. The County denied the claim. At relevant issue in this case is whether or not Orozco suffered a compensable injury that resulted in his death.

The Chief Deputy and the Sheriff of the El Paso County Sheriff department agreed that Orozco was in the course and scope of his employment at the time of the accident because he was enforcing traffic laws an deterring crime by driving the patrol car on the interstate.

The Texas Workers Compensation Act allows for employee compensation when injuries "arise out of and in the course and scope of employment for which compensation is payable under the Act." "Scope and course of employment" does not include transportation to and from the place of employment unless the travel is paid for by the employer, the means of the transportation are under the control of the employer, or the employee is directed in employment to go from one place to another. Travel is also covered if it is in the furtherance of the affairs or business of the employer.

The appellate court rendered judgment in favor of El Paso County. The appellate court found that at the time of the accident Orozco was returning home from his private security assignment which was paid for and directed by the University. Because Orozco was not responding to an emergency call or engaging in a law enforcement duty of preserving the peace, the court ruled that "simply because he was driving down the interstate in a marked patrol vehicle," he was not performing a task of crime deterrence and enforcement of traffic laws. The court also stated that there was "nothing" to distinguish Orozco "from any number of other commuters" at the time of the accident.  

Editor's Note: The Court of Appeals of Texas, El Paso made a very difficult judgment in this case. The court stated that merely driving a patrol car on the interstate while wearing the sheriff uniform does not constitute fulfilling a task of crime deterrence and enforcement of traffic laws. The court also noted that at the time of the accident had Orozco been actively responding to or engaging in any type of law enforcement, coverage would have been provided for his wife.