Untitled Texas Attorney General Opinion

@ffice of tfje Rlttornep QBeneraI Qtate of ZEexae DAN MORALES ATTORNEY CENERAL November 26,199l Mr. William Treaty Opinion No. DM-457 Executive Director Texas State Board of Public Accountancy Re: Whether state indemnification and defense 333 Guadalupe, Tower III, Suite 900 in certain legal actions pursuant to chapter 104 Austin, Texas 78701-3900 of the Civil Practice and Remedies Code is available to a volunteer performing services for Mr. Wayne Scott a state agency (RQ-905) Executive Director Texas Department of Criminal Justice P.O. Box 99 Huntsville, Texas 77342-0099 Dear Gentlemen: Civil Practice and Remedies Code section 104.001 requires the state to indemnify those individuals listed in that section for damages, court costs, and attorney fees if the damages are premised on an act or omission that occurred during the individual’s service to the state. Section 104.004 requires the state to defend those same individuals. Section 104.001 does not list volunteers. You both ask whether the state must indemnify and defend a volunteer’ who provides services for your agency if a civil action is brought against him or her for an action performed in the course and scope of the voluntary services? The Department of criminal Justice inquires generally about volunteers who provide services for it,3 while the Board of Public Accountancy asks about its constructive enforcement volunteers, who assist the board with investigations. Because vohmteers are not among those individuals listed in section 104.001, we conclude that they are not entitled to indemnification from and legal representation by the state. ‘SeeGov’tCode5 2109.004(a)(listingreqtdmments to which stateagenciesthatwish to establisha volunteer progl-anlmustadhere). ‘AttorneyGeneralOpinionDM-173 (1992) concludesthatsection 101.063 of the HumanResourcesCode accorded inummity from liability to volunteerombudsmen in the Texas Depqent of Aging long-term care ombudsmanprogramfor the good-faithperformanceof theirfi~~c.tions as volunteers,and AttorneyGeneralOpinion DM-206 (1993) concludesthatthis statutealso appliedto internsin the volunteerombudsmanprognun ‘Il~esetwo opinionsaddressa specificpmvisii of the HumanResourcesCodeadoptedto complywith a federalrequirement,and they do not addresstbe questionof immunityfor volunteersin general. ‘See Gov’tCode.5 501.009 (requiringDepartmentof CriminalJusticeto encouragevolunteerorganizations to providevariousprogramsfor inmates). Mr. William Treaty - Page 2 (DM-457) Mr. Wayne Scott The executive diitor of the State Board of Public Accountsncy also asks whether a constructive enforcement vohmteer may claim an absolute or quahtied privilege if the volunteer is sued for defamation for his or her official work. We conclude that, in appropriate circumstances, the volunteer may claim one or the other. We will consider first your questions about the extent of Civil Practice and Remedies Code chapter 104. Section 104.001 of that chapter requires the state to indemnify certain individuals for damages, court costs, and attorney fees: In a cause of action based on conduct described in Section 104.002, the state shall indemnify the following persons, without regard to whether the persons perfoned their services for compensation, for actual damages, court costs, and attorney’s fees adjudged against: (1) an employee, a member of the goveming board, or any other officer of a state agency, institution, or department; (2) a former employee, former member of the governing board, or any other former officer of a state agency, institution, or department who was an employee or officer when the act or omission, . . occurred, (3) a physician or psychiatrist . . . who was performing services under a contract with any state agency, institution, or department or a racing official performing services under a contract with the Texas Pacing Commission when the act or omission. . . occurred; (4) a person serving on the governing board of a foundation, corporation, or association at the request and on behalf of an institution of higher education, . . . , not including a public junior college; (5) a state contractor who signed a waste manifest as required by a state contract; or (6) the estate of a person listed in this section. [Emphasis added.] Section 104.002 limits indemnification to damages based on sn action or omission committed in the course of the individual’s service to the state, with certain qualifications irrelevant here4 Any public ‘An appropriationto pay a claim underCivil Practiceand RemediesCode chapter 104 is to be made hm otherwiseunappropriatedamountsin a specialfundor an accountthatmaybe appropriated to the aff&ed stateagency, totheextentIhattends Id.$5109.002(b),,003, ,007 (exceptingcertainclaimshm chapter109). If funds areavailable. areunavailable,the appropriation may be made fromthe generalrevenuefund. Id.$109.003. Thecomptrollerwill (continued...) p. 2557 Mr. William Treaty - Page 3 (DM-457) Mr. Wayne Scott s-t who is entitled to indemnification under sections 104.001 and 104.002 similarly is entitled to be defended by the attorney general? To conclude that a volunteer is entitled to indemnification under section 104.001, we must interpret the section in one of two ways: either the list of positions numbered (1) through (6) is exemplary and not exclusive, or one of the listed positions includes volunteers. Because you ask about vohmteers whose service fits under none of the listed categories except perhaps employee, we will consider only whether the term “employee” in section 104.001( 1) enwmpasses volunteers6 We believe the section’s plain language precludes either conclusion. Because we find the language clear, we need not rely on legislative history to determine what the legislature intended the section to mean.’ We first conclude that section 104.001 provides indemnification to only those individuals explicitly listed. A statute that creates an entitlement and designates the individuals who may claim the entitlement should be wnstrued restrictively to infer that any individual not expressly described is excluded* unless the statute clearly states the wntrary.9 Section 104.001 contains no language clearly stating the contrary, nor does it imply that the class of positions entitled to indemnification is broader than those positions specifically listed. The section does not, for example, require the state to indemnity those public servants including those listed. Similarly, the section does not suggest that the listed positions are described as an example. Nor does the list establish a seventh, open-ended category indemnifying, for example, any otherpublic servant. Second, we do not believe the term %mployee” includes volunteers, even though the section refers to individuals who are not compensated for their service to the state. This office refused in ‘(...wtltiilued) reducethe appmpdion forthe stateagencyin s.nsmountnot to exwed $S,ooOperclaii or five percentof the agency’s appmpriationfor thatf=cal yearfor all claims. Id 5 109.004. 'Id. 5 104.004(a). 6Wedo not considerin this opinionwhethers stateemployeeis entitledto indemnificationand representstion for an act 01 omission committedin the courseof volunteerwork. ‘SeeBoykinv. St&e,818 S.W.Zd782,785-86 a.4 (Tex. Grim.App. 1991)(explainingthat,despiteGovemmnt Code’sinvitationto extie legislativehistoryregardlessof statute’sclarity,courtgenerallyshoulddecline to do so wherelanguageof statutein questionis unambiguous);Lumbermen's Undenwiterr Bd ofIns., 502S.W.Zd217, v.State 219 (Tex. Civ. App.--Austin1973, writ refd n&e.) (citing 53 TEX.JUR.2~ Statutes$ 125, at 182 11.17)(statingthat, when leg&law plainlyhas expressedits intentin statute’slanguage,intentmustbe effectuatedwithoutattemptingto conshue or interpretlaw). 'SeeBidelspach v.State,840S.W.2d516,518 (Tex. App.-Dallas 1992). writdism'd, 850S.W.Zd183 (Tex. Grim.App. 1993) @a cwiam); ~ANORMAN J. SINGER, STATUTES ANDSTATUTORY CONSTRUCTION5 47.23 (5th ed. 1992). ?k 2A SINGER, supra note 8, g 41.23. p. 2558 Mr. William Treaty - Page 4 (DM-457) Mr. Wayne Scott Attorney General Opinion DM-409 to construe Health and Safety Code section 777.007, which requires the state to indemnify under Civil Practice and Remedies Code chapter 104 %n employee” of a regional poison control center, to require the state to indemnity a regional-poison-control-center vohmteer.“’ In that opinion, we distinguished an employee from a vohmteer on two bases: employer control and an express or implied contract for compensation.” An employer has control over an employee, but little over a volunteer. I2 In addition, an employee has an express or implied wntract for wmpensation with the employer, while a volunteer has no such contraw” We believe the same rationale applies here. Our wnstruction of section 104.001 does not render the phrase “without regard to whether the persons performed their services for compensation” meaningless, although our conclusion necessitates a finding that an employee cannot be uncompensated. In our opinion, the phrase refers, at the least, to board members, officers, and former board members whom the state must indemnify. We understand from one of the briefs we received on this issue that individuals serving as board members and officers generally are not compensated for their services, and evidently this fact caused confusion as to whether an individual must be compensated to be entitled to indemnification and defense. The smendment thus rectifies this incongruity and “clearly indicates that board members and former board members sre entitled to indemnification, . . . whether or not they perform their services for monetary wmpensation.“r4 Finally, with respect to your joint question, because a volunteer is not entitled to indemnification from the state under section 104.001, a volunteer is likewise not entitled to the attorney general’s defense under section 104.004. We turn now to the additional questions posed by the executive director of the State Board of Public Accountancy regarding the board’s constructive enforcement vohmteers. Under the board’s direction, wnstructive enforcement volunteers are asked to do various investigative tasks including: (1) on-site investigations; “‘Attorney GeneralOpinionDM-409(1996) at 6-7. at 4-6. “Seeid. ‘*Seeid at 5 (citiag Haavzktola v.Community 812F. Supp. 1379, 1386(D.C. Md.), rev’don FireCo., other ground.~,6 F.3d 211 (4th Ci. 1993)). at 5-6. “Id. “Letterfrom DelmarCaii GeneralCounsel,The Texas A&h4UniversitySystem,to SarakShirley,Chair, AttorneyGerteralOpinionCommittee(Oct. 23, 1996) (on tile with the OpinionCommittee,Of&x of the Attorney General). p. 2559 Mr. William Treaty - Page 5 (DM-457) Mr. Wayne Scott (a) taking photographs, (b) obtaining statements; (c) gathering evidence such as letterhead or business cards; (2) locating witnesses; (3) making telephone calls to verify compliance with the Act, the Rules and Board Orders; (4) testifying at administrative hearings; (5) reviewing contimting professional education sponsors’ courses; and (6) carrying out other investigative tasks, as needed. The executive director inquires whether sn absolute privilege against a suit for defamation would apply to its constructive enforcement volunteers. Chapter 73 of the Civil Practice and Remedies Code defines defamation as follows: A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the de& or that tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or fmsncial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. [Footnote added.] There is an absolute privilege for communications in the due course of a judicial proceeding made by the judge, jurors, counsel, parties, or witnesses.t6 Such communications will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made.” The privilege attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the ‘sRecoverymay be had for defamationof the dead only uponproof of irju$ to the reputationof the person by or for whom the actionis brought. Renfio DrugCo.v.Lawson, 160S.W.Zd246,250 (Tex. 1942). ‘4/ames 631S.W.Zd914,916-17 (Tex. v.Brown, 1982); Reaganv.Guardian Life Co.,166 S.W.Zd909, Ins. 912 (Tex. 1942). “Jamq 631S.W.Zdat 916-17; Reagan, 166 S.W.Zdat 912. p. 2560 Mr. William Treaty - Page 6 (DM-457) Mr. Wayne Scott case.” The privilege barring defamation suits applies to proceedings before executive officers and boards and commissions that exercise quasi-judicial powersJ9 Also subject to the absolute privilege are out-of-court communications made by attorneys preliminary to a judicial pmceeding or in connection therewith, if the statements relate to a judicial proceeding in which the attorney is employed and are in lktherance of the representation?o In a suit for damages instituted by a woman who was involuntarily hospitalized upon the application of her son and daughter, the Texas Supreme Court held that reports by three psychiatrists to the probate judge in the mental health proceedings were absolutely privileged?’ A letter by one of the psychiatrists to the attorney for the plaintiffs children was also within the privilege because it was written in contemplation of a judicial proceeding.‘2 Accordingly, we believe that the constructive enforcement volunteers would have an absolute privilege against a civil action for libel or slander for statements made as witnesses in a quasi- judicial proceeding before the State Board of Public Accountancy and for communications preliminary to a proposed proceeding in which the volunteer will testify, if the communication has some relation to the hearing.” Whether a preliminary communication is related to the proceeding is a question of law, to be determined by considering the entire communication in its context.” 637S.W.2dat 916-17. ‘sJames, ‘9Reagan, 166 S.W.Zdat 912 (Boardof InsuranceCommissioners); Putter v. Anderson,601 S.W.Zd73.76 (Tex. Civ. App.-Dallas 1980, writnf d n.r.e.)(internalaffairsdivisionof city police deparhnentwheninvestigating citizen’scomplaintabout policeofficer);see also Odenealv. Woffoni,668 S.W.Zd819,820 (Tex. App.-Dallas 1984, wit ref d n.r.e.)(St&zBarGrievanceCommittee). ~Rtmell v. Clark,620 S.W.M865,869 (Tex. Civ. App.-Dallas 1981,wit refd me.); see also Odeneal, 668 S.W.2dat 820 (privilegeappliesto letterwrittenby attorneywho is subjectto grievanceproceeding).The questionof the relationshipof the defamatorymatterto a judicialproceedingis a questionof law,to be determkd by the COIUI by consideringthe entireemmum‘cationin itscontextandextendingtheprivilegeto any statementthatbearssomerelation to a judicial pmceediag. Russell,620S.W.Zdat 870. 637S.W.Zdat 91617. “James, at 917. The Jamescourtdescribedthe scopeof the privilegefor matterswrittenin contemplationof a 221d. judicial proceeding: A wi!nessis absolutelyprivilegedto publishdefanmbxymatterconcerninganotherin communicationspreliminaryto a proposedjudicial proceedingor as a:part of a judicial proc&iig in whichhe is testifying,if it has somerelationto the proceeding. Id.(quotingfrom THERESTATEMENT 2~ OFTORTS $!588 (1981)). “Id. 620S.W.2dat 870. uRwsell, p. 2561 Mr. William Treaty - Page 7 (DM-457) Mr. Wayne Scott You also ask whether a conditional or qualified privilege might be available to constructive enforcement volunteers in defamation suits. This privilege applies to bona fide communications, oral or written, made in good faith on any subject matter in which the author has an interest or with reference to which he has a duty to perform, to another person having a corresponding interest or duty.rr It does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege and makes a showing of falsity and actual malice essential to the right of recovery.26 The communication of alleged wrongful acts to an official authorized to protect the public from such acts is protected by a qualified privilege.27 In our opinion, a constructive enforcement volunteer acting at the direction of the State Board of Public Accountancy or of paid employees who supervise volunteers would have a sufficient interest in the work of the board to invoke this privilege for communications to the board or to employees that have a corresponding interest or duty with respect to the substance of the communication. Whether this privilege would apply in a particular situation must be decided in light of all the facts and circumstances. We wish to emphasize that the privileges we have discussed apply only to utterances that are made the basis of a subsequent suit for libel or slander. zs An action taken by a witness may be the basis of a civil suit on other grounds, even though it is the subject of the witness’s testimony fin a judicial or quasi-judicial proceeding. 29 Communicating investigative fmdings to the board and testifying at hearings are only two of many tasks that constructive enforcement volunteers might perform for the board. Causes of action other than an action for defamation might arise out of a volunteer’s other activities on behalf of the board?” %ay@ld v. Gleichert, 484 S.W.Zd619,625 (Tex. Civ. App.-Tyler 1972, no wit). ‘6rd. at626, 27.Zzrafe v.Corfinm, 553S.W.Zd652,655 (Tex. Civ. App.--CorpusChristi1977, no wit) (accusationfiled with sheriffs office accusingdeputycountyclerkof unauthorizedloan of countyequipment). Med.Corp.v. Miller, “Charter 605 S.W.Zd943,953 (Tex. Civ. App.--Dallas1980, wit ref d n.r.e.). *9James, 637S.W.Zdat 917-18 (defamationactioncannotbe basedon do&s communicationto ccnui of diagmsesof plaintiffs mentalcondition,butdiagnosesthemselvesmaybe actionableon othergrounds,suchas medical malpractice). ‘We. do not lmowthe Fidel extentof the servicesperformedby constructiveenfonxment volunteers,because, as the.executive directorof the Boardof Public Accountancyinformsus, theirservice includes “carryingout other investigativetasks,as needed.” p. 2562 Mr. William Treaty - Page 8 (DM-457) Mr. Wayne Scott SUMMARY A person who serves a state agency as an unwmpensated volunteer is not entitled to indemnification against actual damages, court costs, and attorney fees adjudged against him or her under the circumstances described in section 104.002 of the Civil Practice and Remedies Code. Likewise, a volunteer is not entitled to be defended by the attorney general in suits subject to chapter 104 of the same code. Constructive enforcement volunteers who assist in investigations for the State Board of Public Accountancy would have an absolute privilege against a civil action for defamation for statements made as witnesses in a quasi-judicial proceeding before the board. They would have a conditional or qualified privilege against a defamation suit under appropriate circumstances. The conditional or qualified privilege applies to bona fide wmmunications, oral or written, made in good faith on any subject matter in which the author has an interest or with reference to which he has a duty to perform, to another person having a corresponding interest or duty. The absolute and conditional privileges apply only to a defamation suit and not to other causes of action that might arise Out of a volunteer’s activities on behalf of the Board of Public Acwuntancy. DAN MORALES Attorney General of Texas JORGE VEGA Fit Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Susan Garrison and Kymberly K. Ohrogge Assistant Attorneys General ps 2563