Court of Appeals of Texas, Beaumont.

Charlotte YATES, et al, Appellant,

v.

HARRIS COUNTY, TEXAS-SELF INSURED, Appellee.

No. 09-96-249 CV.

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Dec. 11, 1997.

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Rehearing Overruled Dec. 31, 1997.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

RONALD L. WALKER, Chief Justice.

*1 Charlotte Yates, appellant, individually and on behalf of her two minor children, Amy and Jameson, sued appellee, Harris County, Texas, for the death of her husband, Deputy Ricky Yates. Persuaded that Deputy Yates was not in the course and scope of his employment at the time of his death, the 359th Judicial District Court in and for Montgomery County, Texas, granted summary judgment favoring Harris County. Appellants now appeal that judgment urging this Court to reverse the trial court’s decision and remand this case for trial.

Factually, on the morning of January 25, 1994, Deputy Yates was en route to a special duty assignment at Hargrave High School in Huffman, Texas, when, at approximately 6:15 a.m., Deputy Yates’ life ended in a violent head-on crash with a speeding pickup truck on Highway 2090 in Montgomery County, Texas.

On the day of the accident, Deputy Yates left his home in Montgomery County at approximately 5:45 a.m. to proceed to a traffic assignment at Hargrave High School in Harris County, Texas. According to affidavit in response to appellee’s Motion to Summary Judgment, appellants proffered the sworn statement of one James C. Roper, a wrecker driver for North Houston Motors, Inc., in Houston, Texas. By affidavit, Mr. Roper states that his wrecker truck was equipped with a Harris County Sheriff’s Department radio which affiant listens to constantly while in his truck. Roper states that he was personally acquainted with decedent, Deputy Yates, for approximately ten years before his death and was familiar with his voice and often heard him on the Harris County Sheriff’s Department radio. Mr. Roper states, “At approximately 5:45 a.m. on January 25, 1994, I left home in my wrecker to go to work. As was my custom, I was monitoring the Harris County Sheriff’s Department radio. Between 6:15 and 6:30 a.m. I heard Ricky Yates sign on with the Harris County Sheriff’s Department. I also heard the dispatcher acknowledge Officer Yates sign on period.”

Interestingly, Deputy Yates drove an official black and white motorcycle emblazoned with the Harris County Sheriff Department’s insignia and equipped with police lights, a police radio and other required equipment. Harris County paid for the use by Deputy Yates of this motorcycle in monthly checks separate from his regular salary. Harris County controlled Deputy Yates’ motorcycle by prohibiting personal use of said motorcycle, retaining the exclusive right to order Deputy Yates to any location, and requiring that he be in full uniform whenever he rode the patrol motorcycle.

The night preceding Deputy Yates death, he was given a special assignment by the Harris County Sheriff’s Department which was to begin prior to the beginning of his regular shift the following morning. Deputy Yates was ordered to patrol a school zone located outside his assigned district.

Appellee Harris County, moved for summary judgment primarily contending that Officer Yates was not in the course and scope of his employment when he was killed. Harris County sets forth a litany of reasons why Deputy Yates was not in the course and scope of his employment, however, our responsibility is that of determining whether a fact issue was raised as to the course and scope of Deputy Yates’ employment at the time he was killed.

*2 The standard for reviewing a motion for summary judgment are as follows:

1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Francis v. Marshall, 841 S.W.2d 51, 53 (Tex.App.-Houston [14th Dist.] 1992, no writ).

In order for an activity to fall within the definition of “course and scope of employment” a two prong test must be satisfied. This test requires that the activity be:

1. [A]n activity of any kind or character that has to do with and originates in the work, business, trade or profession of the employer; and

2. that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.

Tex. Lab.Code Ann. § 401.011(12) (Vernon 1996).

To obtain summary judgment, Harris County would have to have proven as a matter of law that Deputy Yates did not satisfy at least one of the two prongs of the test.

Regarding the stated test, the record reflects the uncontradicted sworn deposition testimony of former Harris County Sheriff Johnny Klevenhagen establishing that “sign on” means the deputy has actually gone into service and is standing by for calls and assignment. Sheriff Klevenhagen’s testimony confirmed that once Deputy Yates “signed on” he was considered as being “on duty.” Sheriff Klevenhagen further testified through deposition that Deputy Yates’ job duties as a patrol officer was to monitor his radio for calls from the Sheriff’s Department. The sheriff stated that a deputy has absolutely no discretion to refuse a call once he signs on. According to Sheriff Klevenhagen’s deposition, made a part of the summary judgment record, we reproduce the following litany:

Q Once again I’d like to ask you: Based on your review of the statutory definition of “course and scope of employment” within the Texas Workers’ Compensation statute and your knowledge of the facts, do you have an opinion in this case as to whether or not Deputy Yates was in the course and scope of his employment at the time of his death?

A Yes, sir.

MR. CROWTHER: Objection. Calls for a legal conclusion. This Witness has not been qualified as an expert on the law on course and scope of employment.

Q Would you please tell the ladies and gentlemen of the jury what your opinion is.

A My opinion is that he was certainly in cope [sic] and scope and was on the job at the time that he was killed.

Q Sheriff Klevenhagen, I’d like to ask you to assume for me, if you would, that there will be some evidence that Deputy Yates had signed on over the radio the morning of his death shortly before the accident.

*3 A Yes, sir.

Q Can you tell me if there is any significance to a deputy signing on?

A Yes, sir. When a unit signs on duty, at that time the dispatcher does log that unit on duty that he’s in service to accept calls or any other assignment they may be needed for at that time. Yet, again-That’s fine. That’s …

Q When we say a deputy signs on, can you just tell us in layman’s terms: What does that mean?

A That means a deputy would use his radio to notify the dispatcher that he’s in service, reporting to work for that day or that shift.

Q Once a deputy signs on, are you saying that he, by doing that, makes himself available for calls?

A That is correct.

Q How much discretion does a deputy have to refuse to take a call that comes to him?

A None, unless that he’s on another call; and he may notify the dispatcher. The dispatcher or a supervisor can either modify or anything else a call. In other words, if a patrolman would say that he’s en route to a minor accident on the corner of “X” and “Y” and the dispatcher says, “Disregard on that assignment; make this one,” which could be of a more important nature, then that deputy would, of course, make the one that he was assigned to with the code that was necessary.

….

Though appellee, Harris County, raises many interesting legal points, we choose to reverse and remand the trial court’s granting of summary judgment by concluding that Sheriff Klevenhagen’s testimony, standing alone, creates a fact issue.

REVERSED AND REMANDED.