This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et. seq. (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on April 13, 1993, (hearing officer) presiding, to determine the sole disputed issue, namely, whether the appellant (claimant) was injured in the course and scope of his employment with the respondent (City), on (date of injury). The hearing officer concluded that claimant was not acting in the course and scope of his employment with the City on that date when he injured his shoulder. Claimant disagrees with that decision and requests our review. The City, in a concededly untimely response which we do not consider (Article 8308-6.41(a)), urges affirmance.
DECISION
Finding the evidence sufficient to support the hearing officer’s decision, we affirm.
We first note that the style of this case on the hearing officer’s Decision and Order states that the City’s police department is the self-insured governmental entity. While the parties stipulated that on (date of injury), claimant was an employee of the C (employer), the hearing officer took official notice, without objection, that on that date the City was a self-insured political subdivision for purposes of workers’ compensation coverage. The hearing officer concluded that on (date of injury), the claimant was an employee of the City and that the City was a self-insured political subdivision for purposes of workers’ compensation coverage “pursuant to Article 8309h of the Texas Workers’ Compensation Act.” TEX. REV. CIV. STAT. ANN. art. 8309h, Section 1 (Vernon 1993) is not in the 1989 Act nor does it include police departments in the definition of “political subdivision.” However, no issue was raised below or on appeal as to whether the City or the City’s police department was the self-insured governmental entity and we regard the statement in the style of the case as harmless error.
The facts in this case are not in dispute. Claimant testified that sometime after he commenced employment with the City’s police Department in January 1992, he obtained the approval of the department’s chief, (Chief B), to work at an additional job involving security duties at (the store), a store located in (city), County, Texas. The City was located in County, Texas. When performing his duties with the store claimant did not wear his City police department uniform but instead bought and wore a “generic” tan and brown uniform shirt and trousers at a store and a “Texas Peace Officer” badge at another commercial outlet. As far as he knew, purchasers of such a badge had to be licensed peace officers, as he was. Claimant’s duties at the store involved watching video camera monitors in a booth and the store paid him $100.00 per shift. On (date of injury), a day claimant had off from his police department job, he was monitoring the store’s cameras in his “generic” uniform when he was made aware of a male running out of the store being chased by two men, one being the store’s manager and the other an off-duty County deputy. The manager told him the man had tried to “pass a bad check” and claimant joined the chase. Claimant did not know why the check was “bad.” Claimant fell in a parking lot while giving chase and injured his shoulder.
Claimant introduced a written document entitled “Extra Job Policy” which contained the City’s police department policies concerning its officers obtaining permission for and performance of “off-duty” jobs and testified that Chief B had approved his request to work for the store. Claimant noted that the following statement was included in the policy and argued his reliance thereon to establish the City’s liability for workers’ compensation benefits:
All officers are expected to respond to any crime in progress or incident that occurs within your sight or hearing even if you are performing off duty employment you are still a police officer and citizens do not understand why a uniformed officer does not offer the assistance when asked to help.
Claimant contended that this clause established the City’s liability for his workers’ compensation benefits because it created a duty for him to respond at the store as he did. He felt that the attempted passing of a bad check amounted to a “crime in progress,” that the making of an arrest, anywhere in Texas, for a violation of the law was “under [his] purview” as a Texas peace officer, and that he would have been in violation of the City’s policy had he not responded to the incident. He did concede he understood he was to report any problem encountered on the job at the store to the store’s manager or to a Harris County deputy. He said the City’s policy applies to working second jobs in plain clothes as well as in uniform and does not say an officer has to be in a City police department uniform. As for the policy reference to “uniformed officer,” however, claimant agreed this statement most likely referred to officers wearing City police department uniforms. He also opined, apparently to show he was furthering the affairs or business of the City,that the City benefited from its police officers working extra jobs such as his because it enabled the City to retain good police officers who might otherwise leave the City’s employ for higher pay.
Chief B testified that while he had approved claimant’s request to work at the store, claimant’s response in joining the chase was “inappropriate.” Chief B stated that all officers are expected to respond to crimes at the “appropriate level” of response. In this instance, he maintained, rather than chasing the individual claimant should have notified a law enforcement agency with jurisdiction over the area, i.e. Houston or Harris County. Had claimant notified either the Houston or Harris County authorities, he would have been following the City’s Extra Job Policy. That policy, Chief B said, applies to police officers working additional jobs within the City even though it does not specifically so state, and he conceded he did not so advise the claimant.
In concluding that claimant was not acting within the course and scope of his employment with the City when he sustained his shoulder injury, the hearing officer made the following pertinent factual findings:
FINDINGS OF FACT
4.The [City] is located in , Texas, and [the store] where the claimant worked as a secondary endeavor was located in County, Texas.
5.Prior to taking the job at [the store], the claimant, who is a police officer for the [City], requested and obtained approval for the secondary employment from [Chief B], who is and was at that time the Chief of Police in the [City].
6.The approval that the claimant obtained from his Chief, as described in Finding of Fact No. 5 above, was required pursuant to an Extra Job Policy in effect at the [City].
7.In connection with the claimant’s position at [the store], the claimant wore a uniform and a badge that he purchased independently, and such was not issued to him by the [City].
8.The uniform and badge referred to in Finding of Fact No. 7 above was not the same uniform and badge that police officers of the [City], including the claimant, wore when on-duty as a police officer.
9.While the Extra Job Policy referred to in Finding of Fact No. 6 above states the expectation of the [City] that all of its police officers who accept off-duty employment will respond to any crime in progress or incidents occurring within their sight or hearing, there is no indication that such policy created, or was intended to create, a duty or obligation on the part of such off-duty officers to perform police functions outside their jurisdiction.
10.On (date of injury), the claimant injured his shoulder while working as an off-duty police officer at [the store] when he attempted to apprehend a person suspected of criminal activity that was not seen or heard by the claimant.
11.On (date of injury), the claimant’s attempt to apprehend the suspect while working at [the store], as described in Finding of Fact No. 10 above, was an activity that did not originate in and have to do with the business of the [City], and such activity was not performed by the claimant while he was engaged in or about the furtherance of the business or affairs of the [City].
Article 8309h, supra, extends workers’ compensation coverage to employees of political subdivisions and in Section 3(a) expressly adopts many provisions of the 1989 Act including Article 8308-1.03(12) and Article 8308-3.01. Article 8309h, Sec. 1(2) defines “employee,” in part, to mean “every person in the service of a political subdivision who has been appointed in accordance with the provisions of the article.” Accordingly, the City is liable for compensation for claimant’s injury without regard to his fault or negligence if the injury arose out of and in the course and scope of his employment. Article 8308-3.01(a). Claimant had the burden to prove by a preponderance of the evidence that he sustained a compensable injury during the course of his employment. Johnson v. Employers Reinsuranace Corporation, 351 S.W.2d 936, 939 (Tex. Civ. App.-Texarkana 1961, no writ). The 1989 Act defines “course and scope of employment” to mean “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes activities conducted on the premises of the employer or at other locations. . . . ” Article 8308-1.03(12).
The record contained no indication whether the store had workers’ compensation insurance coverage and, if it did, whether claimant was a covered employee. Article 8309h, Section 3(a)(1) expressly declines adoption of the definitions of “employer” and “employee” contained in Article 1 of the 1989 Act. As for the identity of his employer at the time of his injury, claimant presented no evidence of nor did he contend that the City had loaned him to the store, that the City had any contractual arrangement with the store for his services, or that the City was somehow liable under the “lent employee” or “joint employee” doctrines. See generally 1C Larson, Workmen’s Compensation Law Section 48.00 (1992). Rather, claimant’s theory seemed to be that of dual employment although such was not articulated. Regarding dual employment, Professor Larson’s treatise contains the following general statement:
Dual employment occurs when a single employee, under contract with two employers, and under the separate control of each, performs services for the most part for each employer separately, and when the service for each employer is largely unrelated to that for the other. In such a case, the employers may be liable for workmen’s compensation separately or jointly, depending on the severability of the employee’s activity at the time of injury.
Claimant contended that while performing duties for the store on his day off from the police department, he nonetheless remained on duty for the City as a police officer 24 hours a day and had a duty to respond as he did pursuant to the Extra Job Policy. Claimant relied on the Extra Job Policy document as the basis for his contentions and cited no statutory or case law authority to support his assertion that he functioned as a City police officer in giving chase at the store. The City contended, on the other hand, that although it had approved claimant’s additional employment with the store, he was not in the performance of his police duties at the time of his accident because not only was he not in his police uniform but more importantly he was outside the jurisdiction of the City police department. The City relied on as dispositive, both below and on appeal, the case of Vernon v. City of Dallas, 638 S.W.2d 5 (Tex. App.-Dallas 1982, writ ref’d n.r.e.), which is discussed below.
With respect to Texas peace officers performing “moonlighting jobs,” in or out of uniform, the Texas courts have tended not to view such additional employment as limiting them in the discharge of their peace officer authority. In Morris v. State, 523 S.W. 2d 417 (Tex. Crim. App. 1975), which reversed an assault conviction for insufficient evidence to show that the victim was engaged in the performance of police duties at the time he was shot, the court stated the following:
It is true that an off-duty policeman can still be engaged in the lawful discharge of his duties. In both Monroe v. State, 465 S.W.2d 757 (Tex. Cr. App. 1971) and Wood v. State, 486 S.W.2d 771 (Tex. Cr. App. 1972), the injured parties were police officers, in uniform, who were “moonlighting” as a nightclub bouncer and a parking lot attendant, respectively. But both were injured as they attempted to make lawful arrests of defendants on other grounds. And in Thompson v. State, 426 S.W.2d 242 (Tex. Cr. App. 1968), an off-duty policeman in plainclothes who was “moonlighting” as an apartment building security guard was attempting to break up a rowdy party when he was assaulted. In all three of these cases, this Court held that the particular activity in which the peace officers were engaged when they were assaulted was in the lawful discharge of their duties as policemen. Their activities were certainly tantamount or analogous to such duties.
While a peace officer may not be limited in the discharge of official duties simply because such authority is exercised while performing another job, the exercise of such authority may well be limited if the peace officer is outside his or her official jurisdiction, as was the situation in the case we here consider and in Vernon, supra. In Vernon , the court, in what it termed a case of first impression, considered whether a Texas, policeman (plaintiff) injured during his off-duty hours in an altercation outside the city which employed him was entitled to workers’ compensation benefits. The plaintiff, employed by the City of had been dining in casual clothes with his wife in a restaurant in Garland, Texas, prior to commencing his shift when another patron entered speaking in loud, profane, and abusive language. When the plaintiff displayed his badge, identified himself as a policeman, and asked the other patron to “hold his language down,” that person struck the plaintiff in the head and he was injured in the fight that followed. The trial court determined that the plaintiff was not an employee within the course and scope of his employment by the City of Dallas at the time he was injured. The plaintiff argued that as a police officer he was always on duty and had a statutory duty (citing articles 6.05 and 6.06 of the Code of Criminal Procedure) to quell disturbances. The court stated the following:
We hold that the trial court correctly determined that plaintiff had no duty to quell this disturbance outside the City and that, in any event, whether such a duty exists should not define “course of employment” for purposes of determining whether an injured worker is entitled to worker’s compensation. Vernon, supra at 8.
The Vernon court went on to observe that no facts were shown which would have imposed a duty on the plaintiff to act under the Code of Criminal Procedure provisions (article 6.05, Duty of peace officer as to threats, and article 6.06, Peace officer to prevent injury), upon which he relied, and the court rejected his contention that those articles impliedly authorized him to act anywhere in the county. It found those articles “expressly limited by article 2.13 of the Code of Criminal Procedure which states: `[i]t is the duty of every peace officer to preserve the peace within his jurisdiction‘ [emphasis added].” Noting that the plaintiff was a “peace officer” by virtue of article 2.12(3) of the Code of Criminal Procedure and that his “jurisdiction” was the City of Dallas (citing TEX. REV. CIV. STAT. ANN. arts. 998, 999 (Vernon 1963-1981)), the court said:
We believe it would be an unreasonable construction of the statutes to hold, as plaintiff urges, that while a peace officer is expressly authorized to act only in his jurisdiction, he may by implication be authorized, if not required, to act over a much larger territory. Surely where the legislature has been explicit with the limited grant of authority in article 2.13, it would not leave this much broader grant to implication. Vernon, supra at 9.
The court further stated:
Irrespective of what plaintiff’s duty might be under state law, we hold that any such duty, if it exists, does not determine whether an employee such as plaintiff received an injury in the course of his employment. That determination is made under tests settled by numerous court decisions: (1) was the injury of a kind or character originating in or having to do with the employer’s work? (2) did the injury occur while the employee was engaged in the furtherance of the employer’s business or affairs? See Biggs v. United States Fire Ins. Co., supra, at 627 [611 S.W.2d 624, 627 (Tex. 1981)]. We do not understand plaintiff to argue that he satisfied these tests, but rather that the tests should somehow be formulated differently for him, citing cases involving public employees from other jurisdictions, because of his peculiar status as a peace officer. We find no authority for rewriting the law of worker’s compensation because plaintiff perceived that state law imposed on him a duty to act outside the City of Dallas.
Neither have we found authority relaxing these tests merely because the plaintiff was on call 24-hours a day. . . . Thomas [Thomas v. Travelers Insurance Co., 423 S.W. 2d (Tex. Civ. App. – El Paso 1967, writ ref’d n.r.e.)] teaches that even if an employee is on call 24-hours a day (a fact on which plaintiff places great emphasis here), he is not relieved from making the additional showing that he was injured while engaged in or about the furtherance of his employer’s business or affairs. Vernon, supra at 9.
The Vernon court concluded with an articulation of a number of contrasting policy considerations involved in its decision including the notion that “since many employers of peace officers are self-insured under article 8309h, taxpayers in any such jurisdiction may question the fairness of using their tax funds to compensate peace officers who are injured while enforcing the law outside their jurisdiction.” Vernon, supra, at 10.
We view the evidence as sufficiently supporting the findings and conclusions in this case including the finding that claimant’s attempt to apprehend the suspect while working at the store was an activity which did not originate in or have to do with the business of the City and was not performed by him while engaged in or about the furtherance of the business or affairs of the City. The only nexus between his injury and his employment with the City which claimant advanced was that he was functioning as a City police officer at that time because he viewed the Extra Job Policy as creating a duty for him to respond to “any crime in progress or incident that occurs within [his] sight or hearing,” and because he perceived the law of this state to authorize him to exercise his police authority 24 hours a day anywhere in the state. He did not contend his injury occurred while in a “hot pursuit” originating in the City nor did he assert any specific statutory duty to exercise his police officer authority nor prove facts to bring himself within any such specific statutory duty. For example, TEX. REV. CIV. STAT. ANN. art. 8309g, Section 1(1)(c) defines “employee” to include ” a peace officer employed by a political subdivision while that peace officer is exercising authority granted under Article 14.03(c)(sic), Code of Criminal Procedure.” TEX. CODE CRIM. PROC. ANN. art. 14.03(d) (Vernon Supp. 1993) provides that a peace officer outside his jurisdiction may arrest without a warrant a person who commits within the officer’s presence or view a felony or a violation of Title 9, Chapter 42, Penal Code (disorderly conduct and related offenses). Accordingly, we agree that claimant failed to meet his burden of proof that he sustained his injury in the course and scope of his employment with the City.
The hearing officer is the sole judge of the weight and credibility of the evidence. Article 8308-6.34(e). We do not substitute our judgment for that of the hearing officer where, as here, the challenged findings are supported by sufficient evidence. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ). The challenged findings and conclusions of the hearing officer are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 751 S.W.2d 629 (Tex. 1986).
The decision of the hearing officer is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Thomas A. Knapp – Appeals Judge