Understanding Legal Provisions for Texas Volunteer Fire Departments

Texas Volunteer Fire Departments Explained

Texas is unique in that more than 80% of the fire departments in the State operate on a volunteer basis. Many of these departments are organized as nonprofit organizations and serve as the primary responder for most communities. According to a report by the Volunteer Firefighter Alliance, in 2011 there were 25,352 certified volunteer firefighters and 174,274 emergency medical technicians in the State. Most of these volunteers are central to the emergency response of their communities, providing medical care, fire suppression, and responding to all types of other emergencies .
These dedicated individuals spend many hours preparing and training, but often are not protected from lawsuits based on their actions while responding. The laws protecting courageous volunteers also vary. Volunteer fire departments are often structured as a private charitable organization, a nonprofit corporation, a municipal organization, or a combination thereof, but Texas law provides limited protections for their members and officers in certain circumstances. Additionally, there are limited protections available to the fire departments in accordance with the Texas Tort Claims Act.

Creating a Texas Volunteer Fire Department

In Texas, forming a volunteer fire department is no simple matter. At the outset, a group of 10 people must meet in order to organize the group and adopt general governing rules to be a registered volunteer fire department under Texas state law. It may also be necessary to obtain federal tax-exempt status depending on the tax-exempt status of the county or entity that is creating the volunteer fire department.
If the entity creating the volunteer fire department is an emergency service district, then the fire department can apply for a loan program administered by the Texas Water Development Board. Such a district must issue unlimited tax bonds secured by property tax assessments paid by property owners within the district to fund construction of facilities for the volunteer fire department. If a volunteer fire department is formed outside of an emergency service district, then there are several other options available to finance the department.
For example, both a nonprofit corporation and a foreign corporation that is authorized to transact business in Texas can form a volunteer fire department. The foreign corporation may not need to be organized for profit and may fulfill all the requirements of state law if it is organized as a nonprofit in another state and is authorized to do business in Texas.
In Texas, charitable trusts and other organizations are permitted to furnish funds to a volunteer fire department that has received a letter of determination from the Internal Revenue Service (IRS) certifying the organization as a public charity. Alternatively, an organization that has been approved by the IRS for donation of machinery and equipment to a volunteer fire department in Texas may be given a letter of determination that certifies the organization as a public charity.
The board of a charitable organization may provide a letter of determination to a volunteer fire department that meets any of the following criteria:
The above organizations may provide funding to a volunteer fire department in an amount as much as two hundred fifty thousand dollars.

Key Operational Guidelines

The operation of Texas volunteer fire departments is supervised by a core set of state regulations that dictate minimum standards across several areas:

1. Equipment and Vehicle Standards

Under state law, volunteer fire departments are subject to the same standards imposed on municipal emergency response organizations. This means that department vehicles must be modified and equipped for emergency response. For example, departments must fully comply with the international standards adopted by the National Fire Protection Association.
All vehicles used for emergency response purposes must incorporate lights that are visible from at least 500 feet away. In addition, any vehicle with a roll-cage or a crew-cab pickup that appears on the roadways is required to have stabilizers/restraining straps for its roll-cage, designated equipment to adjust the height of the vehicle, and other equipment to properly carry and secure all types of firefighting equipment.
In addition to equipment standards, fire department vehicles must comply with state and federal emission standards and maintenance requirements.

2. Medical Training Requirements

Every fire department must have at least one officer who is trained as a certified emergency medical technician. Personnel with basic cardiac and trauma care training are also required on each fire engine and rescue unit, whereas each ambulance must have a certified emergency paramedic.

3. Emergency Response Protocols

Texas volunteer fire departments are required to provide 24-hour emergency response coverage, four hours per day, seven days per week. These requirements translate into frequently tight schedules that can have a negative impact on administrative tasks, such as maintaining necessary documentation.

Required Training and Certification

The Texas Government Code Section 419.032 has established the Office of the State Fire Marshal ("OSFM") as having oversight authority with respect to the training programs and certification of state certified volunteer firefighters. The OSFM publishes guidelines for achieving the numerous levels of volunteer firefighter certification, which must be completed prior to being eligible to serve as a certified municipal firefighter. There are currently 11 different levels of firefighter certification available through the OSFM, ranging from Basic Firefighter Certification to Fire Service Chief Executive officer Certification.
Volunteer fire fighters must be trained and certified prior to responding to calls for service. The Texas Government Code Section 419.032 specifically states: " A municipality may not allow a person to: (1) serve as a volunteer firefighter unless the person is certified under Chapter 419; or (2) perform any firefighting duties unless the person meets minimum standards, including standards of physical and mental fitness, established by the commission."
Local volunteer fire departments (and their suppression and control apparatus) ensure that their members have successfully completed the required training and certification program(s) prior to becoming eligible to respond to emergency situations.

Legal and Liability Protections

The protection of volunteers from liability may take many forms, ranging from statutes which provide immunity from suit for negligence, to provisions in a membership agreement or the organization’s constitution extending personal liability insurance coverage while on duty. Texas has several provisions which extend to volunteers immunity from suit for negligence, although there is some conflict among them as to who qualifies for immunity and who may assert certain defenses. The Texas Volunteer Fire Department Relief Fund Law set forth in Chapter 775 of the Local Government Code provides in Section 775.004: (c) A person who serves in an exempt, noncompensatory capacity for a volunteer fire department is not liable in civil damages for an act performed in the course and scope of the person’s service or duties, including responding to or returning from a fire, unless the act is willfully or wantonly negligent. (Emphasis added.) The second statute providing for immunity is the Texas Civil Practice and Remedies Code Section 84.003, the Local Governmental Liability Act, which applies to "employees" of a governmental entity, which includes unpaid volunteers. This statute is a little more complex and was the subject of a recent Supreme Court case, Texas v. Hardy, which held in April 2007 that a volunteer firefighter asserting immunity under this statute did not have to establish his subjective awareness of the amount of force he used in order to be entitled to immunity under "objectively unreasonable" standard of care test. However, Hardy did not address the definition of "employee" and whether a volunteer retaining other defenses (e.g., vicarious immunity of the governmental unit employing him) had to prove that he met the definition of "employee". The Hardy case is still unpublished and has yet to be cited as precedent by a court of appeals, although it no doubt will be. The third provision affording some liability protection for volunteers is Article 3.01 of the Texas Worker’s Compensation Act, codified as section 418.001 of the Labor Code, which states that a volunteer who suffers a compensable injury is considered an employee of the local governmental unit for the purpose of determining compensation benefits. Although this seems to imply the existence of statutory immunity for such volunteers, the question which remains unanswered is whether in the case of negligent injury of another by a volunteer, his immunity as "employee" would prevail over vicarious liability of the entity for his negligence. The Good Samaritan doctrine also provides some liability protection for acts of negligence. Under Chapter 74 of the Civil Practice and Remedies Code , an individual does not breach an applicable standard of care for emergency medical services if he acts in good faith (with an intent to render emergency medical advice/treatment) and does not receive or expect compensation for his acts. This section of the Civil Practice and Remedies Code has been interpreted to apply to volunteers responding to most emergencies, whether they are medical or structural in nature. Additionally, the federal Volunteer Protection Act extends protection from suit to individuals who render emergency assistance in a state or local disaster, provided that he does not receive compensation for it. Various statutes, unfortunately, have not extended immunity to volunteers particularly in the area of land and premises liability, which has accumulated to a significant body of case law declaring volunteers to be open to liability for ordinary negligence on the part of a volunteer entity. In the case of Perry v. Cohen, FortWorth Court of Appeals reversed the trial court’s summary judgment for a volunteer fire department based on the theory that fire departments are immune from suit for breaches of contract. Perry sued Port Lavaca Volunteer Fire Department for loss of his house and business property which was destroyed in an electrical fire that occurred shortly after the Lavaca Fire Department responded to a fire call at an adjacent business. Some of the Lavaca volunteers reportedly entered the premises of Perry’s business house and shifted shelves, bookcasies and other movable objects causing additional damage to the unoccupied structure from which he claims to have to moved his personal property. The plaintiffs asserted that the VFD had a contractual obligation to protect their property from fire and water, which was a benefit for which they paid, and that the VFD breached that contract by destroying the shelving, cabinetry and exhaust duct work. The VFD filed its plea to the jurisdiction claiming immunity under the Texas Tort Claims Act, however, the appellate court held that where the fire department has contracted to perform a specific act (providing fire protection for money), the contract controls whether it possesses immunity. Perry defeated the fire department’s immunity claim. Additionally, the VFD challenged the application of Good Samaritan doctrine to Perry’s claim, but again, the appellate court found that since the VFD was not a professional EMS entity, the Good Samaritan doctrine did not apply to Perry’s claim. The Perry court made references to the VFD’s status as a volunteer fire department and the liability of professional EMS entities, suggesting that the plaintiffs’ remedies would have been limited if it had been a "professional" fire protection service. A similar decision was reached in Matera v. County of Nueces; in which Nueces County volunteer fire department members were not granted immunity from ordinary negligence.

Funding and Financial Guidelines

The financial management of a Texas Volunteer Fire Department (VFD) is a vital component of its sustainability and effectiveness. VFDs may receive funding from a variety of sources, including both public and private, while also being eligible for various grants and funding programs. It is essential for VFDs to manage these resources prudently and to understand the legal framework within which they operate, such as the requirements set forth in the Texas Local Government Code.
Public funding for VFDs can come from local or state sources. For instance, many VFDs receive funding from their local government, such as a county or municipality. This funding often comes in the form of property taxes or other budgetary allocations. Some VFDs are part of emergency service districts (ESDs) that are funded by the district’s ad valorem sales and use tax. The funds raised by the ESD are capped at 10 cents per $100 of the assessed valuation of the duty of the district. VFDs may use these funds to defray the costs of personnel and operations, but most importantly, they make up the bulk of capital fund to be used for the purchase of equipment, supplies, and vehicles, as well as the construction of facilities.
In addition to public funding, VFDs may also receive private funding. Some businesses and individuals contribute to fact local fundraising efforts, while others may enter into long-term agreements to support the VFD. These funding sources can be critical in helping VFDs maintain their operational capabilities and meet the growing needs of their communities.
VFDs may also be eligible for various grants and funding programs through the state and federal governments. However, applying for and receiving grants require careful attention to detail, as well as a thorough understanding of the eligibility requirements. Grant funding can be instrumental in helping VFDs acquire necessary equipment and training programs, allowing them to better serve their communities.
When it comes to financial management, VFDs must adhere to several important principles. To ensure the sustainability of their operations, they must be able to adequately plan for the future, setting aside sufficient resources to account for both short-term and long-term expenses. Furthermore, they must be willing to track and manage these resources carefully, making adjustments to their budgets as necessary. Above all, financial management must be undertaken with an eye towards transparency and accountability, ensuring that the VFD is able to account for all of its revenues and expenditures, which will bolster the community’s ability to support, and thus increase the VFD’s ability to be effective.

Changes and Amendments to the Laws

In recent years, there have been several changes or updates to the regulations and guidelines to which fire departments are subject, as well as additions particularly affecting those that are primarily manned by volunteers. The Texas Commission on Fire Protection ("TCFP") has been working to revise the Administrative Code as it applies to fire departments. This is a time-intensive process, as the revisions will affect not only the career staff, but the volunteer personnel as well. The latest draft is available, but will not become final until published. Once completed, the final rules will be incorporated into the Texas local Government Code and the Chapter 438 Rules of the Texas Administrative Code. Significant changes include updates to CDL requirements, recommencement of "Flight and Transfer" issues for transport of patients, and changes to reporting requirements , including incident reports, certification and enforcement and other formal procedures to address issues related to their decisions. Also, in the last few years, additional units and entities within the State of Texas became recognized as a "fire department." These include fire departments based in state-funded industrial facilities and commercial service centers with at least fifty percent of the intrastate response area within tightly defined geographical boundaries. These changes affect the requirements of the TCFP Manual and its requirements for initial and continuing education of firefighters, officers and managers, such as regard to a Level I Fire Department. These changes have not yet gone into effect, but they may well have a direct impact on Altus, as some aspects of the in-state commercial service center offer safety and rescue training or certifications.