Bill to Transfer Liability Questioned

A bill filed to shift liability for law enforcement services provided under interlocal contracts could face some rough sailing in the Senate Intergovernmental Relations Committee after a number of senators raised concerns during a hearing Jan. 23.

SB 202 by Sen. Robert Duncan of Lubbock provides that a governmental entity requesting law enforcement services from another governmental entity through an interlocal agreement would be responsible for any civil liability that arises from using those services. Sen. Duncan said the bill would create the same standard for police protection as for fire protection services requested under interlocal agreements. Under current law, if a governmental entity requests assistance from another governmental entity for fire protection services through an interlocal agreement, the requesting entity is held liable for any civil action. Sen. Duncan also said the bill only would relate to governmental entities, not private entities. And, in the event that multiple agencies are involved, only the entity that is a party to the interlocal contract would be liable.

Ty Cooke, mayor pro tem for the City of Lubbock, testified that the bill would clear up any questions about who should be liable when law enforcement services are used under another agency’s supervision. As an example, Cooke said the Texas Department of Public Safety requested the use of the Lubbock Police Department’s SWAT team and equipment for an emergency situation.

Susan Rocha, a lobbyist for the City of Lubbock, testified that under current law the entity providing the services or the employer of the employee involved in any civil action would be held liable, or in this particular case, the City of Lubbock.

Although there is currently no civil action against the City of Lubbock, Cooke told committee members he believed it was unfair to hold the city liable for any actions that occur while the city’s personnel and equipment are under the supervision of another entity.

However, senators on both sides of the aisle questioned whether the requesting agency should be held liable for officers or equipment maintained by another governmental entity. Sen. John Whitmire of Houston, said he was concerned the bill would cause some agencies, such as the DPS, to hesitate before requesting needed resources or manpower because of the liability issue.

“I’m not too sure I want the DPS or any other agency stopping and worrying about are they going to accept the liability for how you maintain your equipment when the greater good is going to be give me the firepower,” he said.
Cooke said the legislation would eliminate that liability question by clarifying who would be held responsible.
Duncan said, “If you are responsible for taxpayer dollars, you have to ask the question, “do you want to put your taxpayers’ resources at risk by allowing your officers to go and work under the supervision of a law enforcement activity that is supervised by someone else?” That’s why we did it for fire. I can’t see any difference or any reason why we would want different standards for law enforcement.”

But, Whitmire questioned whether the standard should even exist for fire protection services and used the Houston Fire Department and Harris County as an example.

“If HFD goes out to suburbs to help out with a fire and they do more damage because they didn’t bring a pumper trunk with four guys - there’s only two - are we going to place the blame on the entity that asked for it? I’m not so sure it’s a good policy for fire or police,” he said.

Duncan also argued the bill would encourage communities that have law enforcement resources to share them with other communities that don’t have resources because it would eliminate the question of liability.

However, Whitmire disagreed.

“I would suggest that it would discourage it if I have to accept full responsibility for what I don’t even know,” he said.

Whitmire said agencies might not want to accept liability for equipment or personnel when they don’t know how well it is has been maintained or trained.

As an example, he pointed out that a county that requested assistance from a police department would be held liable if a problem occurred as a result of a flaw in the police department’s training.

Sen. Todd Staples of Palestine also raised the issue of whether the entity receiving the services should be held liable if they are paying for those services.

Staples said if the City of Lubbock rendered aid to another city because that city had inadequate manpower, then the city requesting service should be held liable.

But, he said the liability issue was not as clear cut if the requesting city was being billed for those services according to the interlocal contract.

In response to the issues raised, Duncan requested the bill be left pending in committee in order to address some of the committee members’ concerns.