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Click here for the full text of this decision FACTS:Mark Gates and Sue Gates sued the City of Dayton, the Dayton Volunteer Fire Department Inc., Liberty County, and Emzey Joe Wisegerber, Sr., a volunteer assistant fire chief, for damages resulting from a motor vehicle accident. The trial court denied a plea to the jurisdiction filed by the City and the Fire Department. HOLDING:Reversed and rendered in part; remanded in part. Because Texas Civil Practice and Remedies Code �101.025(a) clearly waives immunity to suit to the extent liability is “created” by the Tort Claims Act, the court deciphers “the extent of liability created.” While �101.021(1) of the Tort Claims Act creates liability in specified circumstances, �101.021(1) does so only when the claims stem from the action of a paid employee of the governmental unit. Section 101.062(b) states restrictively that “[t]his chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves . . . responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.” As it is phrased, the section appears to be an effort to restrict the liability of public agencies responding to 9-1-1 calls, rather than an effort to “create” additional liability. If a governmental unit’s paid employee’s actions result in potential liability and a waiver of governmental immunity under the Tort Claims Act � and the claim against the public agency involves 9-1-1 emergency service � �101.062 requires proof of a violation of an applicable statute or ordinance before the public agency can be held liable. The “volunteer under direction of” language in �101.062(b) would make the proof requirement applicable when a negligent paid employee is alleged to be responsible for an act of a volunteer. But the language does not “modify” �101.021(1) so as to “create” liability where no paid employee is alleged to be negligent under �101.021(1). The section does not clearly and unambiguously expand liability of public agencies who are 9-1-1 responders; instead, it restricts liability to violations of applicable statutes or ordinances, when the public agencies might otherwise be liable under the Tort Claims Act. The court concludes the language in �101.062(b) does not clearly and unambiguously waive governmental immunity. The court holds �101.062 does not expand �101.021(1) liability so as to waive governmental immunity to suit for claims arising solely out of the action of an unpaid volunteer responding to a 9-1-1 call. In a case not involving �101.062, the Austin Court of Appeals has held that a governmental unit could be liable for the actions of a volunteer when the volunteer carries out the duties of a paid state employee. But the Supreme Court considered Smith v. University of Texas, 664 S.W.2d 180 (Tex. App. � Austin 1984, writ ref’d n.r.e.) in Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1994), and stated that “liability [in Smith] was predicated on the actions of a paid university employee who supervised volunteers, and not the actions of the volunteers themselves.” The Supreme Court ventured no opinion on whether Smith was rightly decided, since in Dillard the plaintiffs did not complain of the actions of any paid employee. As this court reads Dillard, tort liability here must be predicated on the actions of a paid employee and not solely on the actions of the volunteer. The court sees no facts in this record which would support a negligence claim based on the actions of any paid employee. However, in the interest of justice the court remands for the trial court to consider, consistent with this opinion, whether any jurisdictional evidence supports a claim against the city or the Fire Department, and to permit pleading amendment. OPINION:Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ.

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