Untitled Texas Attorney General Opinion

QBffice of tfy !Zlttornep @enera iMate of &exaii DAN MORALES . ATTORSEY GESERAL March 16, 1993 MsMarysapP . Opiion No. DM-206 Executive Director Texas Department on Aging Re: Whether the Human Resources P.O. Box 12786 Code section 101.063 provides immunity Austin, Texas 78711 to vohmteer ombudsmen in the Texas Department on Aging long term care o~-program w-w Dedr Ms. sapp: You seek clariftcation of Attorney General Opiion DM-173 (1992) which addresses the immunby of vohmteer ombudsmen in the Texas Department on Aging long term care ombudsmanprogram. In that opinion we concluded that volunteer ombudsmen pardcipating in the program are immune from suit while in the good faith performance of their official duties. Hum. Res. Code 5 101.063. You have informed us that prior to becoming a certhkd volunteer ombudsman individuals routinely serve a three month internshipunder the supervision of a professional staff person or an experienced cutifkd voluatecr. You further state that the ombudsman progmn wntains a class ofvohmteers referred to as &iendlyvisitotn. Their tin&m is to visit residents in nursing fkcikies on an inddlnite basis. Friendly visitors do not perform complaint investigations and receive little or no supervision You ask if individuals aervingineitherofthesecategoriesare hnrnune6omauitasdkussedinAttomeyGeneral OphdonDM-173. Weamchrdethatthevohmteerssavingintheimem&ipprogmtnare hnnnmefiomaubforcivildamagesorcrhmnalpro~ontieinthecourseofgood full peIfolmancc of their official duties. Human Resomces Code chapter 101. subchapter C. created the State of Texas Long Term Care Ombudsman O&e. Hum. Res. Code glOl.052. Chapter 101, plkbrptac,ansrdoptsdtocontormtheLwrofthis~etathe~ofthe federal Older Americans Act of 1965 (“the act”). Id. 5 101.053(a). The act rquires that states participating in plans to monitor the provision of health and social s&ces for the daiyestablishastatelongtermcuro~ progmn. 42 USC. 5 3021 et sq. In pursuit of its responsibiities, the office of the ombudsman is authorized to recruit volunteers and citizens’organizations to participate in the ombudsman program. Hum. p. 1084 Ms.MarySapp-Page2 @M-2063 Rcs. Code $101.056(a); 40 T.&C. 5 299.9(b)(S) - (6); (c)(l); (8).’ Section 101.056 of theHuman- code provides: (a) The office shall recruit vohmteers and citkun organidons toparticipateintkombudsmanprogram. Aprddsta!Tmembmofrn areaagencyonagingnetworkoranonprofitsocialserviceagency mrybemombudmm. Anomh&manisampr~~the o#ce. (b) The oaice shall provide training to ombudsmenas required by this subchaptw and fedml law.’ @Zmpbasis added.] The fedual Older heri- Act of 1965 liuther provided that “[t]he Stste will ensure that no repwentutive [of the office of the State Long Term Que Ombudsman]wiIl be liable under State law for the good faith perfomance of official duties.” 42 U.S.C. 5 3027(a)(12)0 (emphasis added). A repmmative is d&cd as standing or acting for another espedly through delegated authority. wIEB!mR~~NEw~GIA~ DIIXIONARY1000 (1983). The tmn is interchangeable with agent. BLACK’~LAW DI~ONARY 1170 (5th ed. 1979). We conclude that as reprwtives of the of&c of the ombudsman, the interns are immune from suit while in the good faith performance of their duties. Furthemmre, House Bill 541 of the 71st Legihture enacted Human Resow= Code chapter 101, subchapter C and section 101.062. The bill an&h states in part: ThefsdenIiawrcquiwesch~toprovidetba- pogmmaceeastoresidentsofmusinghontmmdtopmvi& immunt~jbr whmteer andstqf. @mphasis added.] House Comrn. on Rethmqt and Aging, Bill Anaiyb,‘ C.S.HB. 541, 7lst Leg. (1989) (byReps.llichdmandRobnett). whikitisdartbtintemspPticiprtiaeinthe prognm= imauneframsui&waareunclearwlmtlwtksameistnteforindividuels Ms.MarySapp - Page 3 (DH-206) participating in the program as friendly visitors. You have not provided us with su5cient iahmation to address your question with regard to this group, therefon we shall reserve our response. You also ask whether the 05ce of the Attorney General would be responsible for representation of the state ombudsman volunteer ombudsmen,interns and flkndly visitors “in the event of legal action taken against them in their official or individwl capachy.” Section 101.055 of the Human Resources Code provides that the Depatttnent on Aging shall ensure that the office of the ombudsman receives adequate legal advice and mmntation. Ftuthemtore, as an employee of the state, the ombudsman is entitled to iii legal counsel of the attorney general. Cii. Prac. & Rem. Code 05 104.001,104.004. The Human Resources Code and the Civil Pmctice and Remedies Code make no mention of attorney genetal representation for volunteers. However, we are of tbe opinion that this office should provide legal counsel to designated representatives of the state ombudsman as provided for in the 1992 amendmentsto the federal Older Americans Act. Therefo~ we urge that you seek legislative claritkation of this matter by introducing amendments to chapter 101 of the Human Resources Code to reflect the 1992 amendments to the Older Americans Act. In the absence of such legislationwe are unable to provide a response to your second inquiry. SUMMARY Section 101.063 of the Human Resources Code, which provides that an ombudsman is not liable for civil damages or subject to crimind prosecution for good faith acts perfomed in the course of his or her official duties, applies to interns in the vohmteer ombudsman program. Tkstateoxhdsmmisenthledto&gal~~mthe o5ceoftheAttomeyGenerai. ThismpmsmWionwiuonlybe provided in instances where the action is being sought against the individual in his 05&l capacity. DAN MORALES Attorney General of Texas , p. 1086 Ms.MarySapp - Page 4 (DM-206) WILL PRYOR Fii Assistant Attorney Gcnd MARYKELLER Deputy Attorney Oeneral for Litigation RENEAHIcKs State Solicitor MADELEINE B. JOHNSON Chair, Opiion Committee Prepared by Toya C. Cook Assistant Attorney General p. 1087