January 11, 1989
Mr. Steve Lilly Opinion No. JM-1005
President, Board of Directors
Angelina & Neches River Re: Whether officials and
Authority employees of a river. au-
P. 0. BOX 387 thority may be represented
Lufkin, Texas 75901 by the Attorney General in
suits under Chaoter 104 of
the Civil Practice and Re-
medies Code (RQ-1524)
Dear Mr. Lilly:
you ask about chapter 104 of the Civil Practice and
Remedies Code, section 104.001, which provides in part:
In a cause of action based on conduct
described in Section 104.UU2,1 the state
1. Section 104.002 provides:
The State is liable for indemnification
under this chapter only if the damages are
based on an act or omission by the person in
the course and scope of the person's office,
employment, or contractual performance for
or service on behalf of the agency, institu-
tion, or department and if:
(1) the damages arise out of a
cause of action for negligence, except
a wilful or wrongful act or an act of
gross negligence: or
(2) the damages arise out of a
cause of action for deprivation of a
right, privilege, or immunity secured
by the constitution or laws of this
state or the United States! except when
the court in its judgment or the jury
in its verdict finds that the person
_- - ..
(Footnote continued)
p. 5162
Mr. Steve Lilly - Page 2 (JM-1005)
shall indemnify the following persons for
actual damages, court costs, and attorney's
fees adjudged against:
(1) an employee, a member of the govern-
ing board, or any other officer of a state
aaencv. institution. or deDa*ment;
(2) a former employee, former member of
the governing board, or any other former
officer of a state aaencv. institution. 01:
denartment; who was an employee or officer
when the act or omission on which the damages
are based occurred:
. . . .
(5) the estate of a person listed in this
section. (Emphasis added.)
Subsection (a) of section 104.004 provides:
(a) The attorney general shall defend
a public servant or estate listed in Section
104.001 jn a cause of action covered by this
chapter.
As President of the Board of Directors of the Angelina
Neches River Authority (ANRA) you ask:
Will the Attorney General defend an individu-
al, or the estate of an individual who is, or
was, an employee or a member of the governing
board of ANRA for an action described in
Section 104.002 of the Code?
The focus of your inquiry, as indicated in your re-
quest, is whether ANRA is a "state agency, institution, or
department" within the meaning of section 104.001. Should
we find that ANRA is a "state agency, institution, or
department" within the meaning of section 104.001, we would
of course have to conclude not only that the attorney
(Footnote Continued)
acted in bad faith, with conscious
indifference or reckless disregard; or
(3) indemnification is in the in-
terest of the state as determined by
the attorney general or his designee.
p. 5163
Mr. Steve Lilly - Page 3 (JM-1005)
general has a duty to represent ANRA employees and officers
under section 104.004, but also that ~the state might be
liable for the indemnification of such employees and offi-
cers under section 104.001.
ANRA was created in 1935 as the "Sabine-Neches Conser-
vation and Reclamation District" under article XVI, section
59, of the Texas Constitution. Acts 1935, 44th Leg., ch.
97, at 237. The creating act was amended in 1939 and 1945.
Acts 1939, 46th Leg., ch. 8, at 1080; Acts 1945, 49th Leg.,
ch. 287, at 456. The name of the authority was changed to
Angelina and Neches~River Authority in 1977. Acts 1977,
65th Leg., ch. 394, at 1079.
you note that, while "state agency, institution, or
departmentH is not defined for purposes of chapter 104,
"state agency" is defined in the Texas Sunset Act, chapter
325 of the Government Code, to include certain river author-
ities. Govgt. Code §§ 325.002, 325.023.
River authorities have been held to be state boards or
agencies under article XVI, section 30a, of the Texas
Constitution which provides that members of certain boards
may hold office for terms of six years. The provisions of
section 30a for six year terms make an exception to the
general restriction to two year terms for public officers
under article XVI, section 30.
It had been held in fl
State, 173 S.W. 525 (Tex. Civ. App. - Saz AntonTo 1915, Wrii
ref'd) that the boards, and members thereof, referred to in
section 30a, were "state boards" and "state officers," and
did not include a board of trustees of an independent school
district. In &ower Colorado River Auth . V. ccraw, 83
S.W.2d 629 (Tex. 1935)' a mandamus proceeding against the
attorney general to compel him to approve a bond issuance of
a river authority, it was objected that the act creating the
river authority was unconstitutional because it provided for
six year terms for members of the authority's board of
directors. Finding section 30a the only possible constitu-
tional authorization for such six year terms, and following
the conclusion of San Antonj&Ql@eD. School Dist, swxar
that section 30a referred to "state boards," the' supreme
court held that the provision for the six year directors'
terms was constitutional under section 30a.
This conclusion was followed in J.awer Neches Valley
Auth. v. Mann, 167 S.W.2d 1011 (Tex. 1943), another mandamus
proceeding to compel the attorney general to appeal a bond
issuance of a conservation and reclamation district, where
the objection to the six year terms of the authority's di-
rectors was raised.
p. 5164
Mr. Steve Lilly - Page 4 (JM-1005)
Attorney General Opinion M-822 (1971) considered wheth-
er various river authorities and other water districts which
had entered into a water pollution control compact consti-
tuted a "state agency" for purposes of a federal program
wherein increased federal grants were to be made available
for pollution control projects certified by the state or an
agency of the state. The opinion concluded that the signa-
tories of the water pollution control compact constituted a
"state agency" for purposes of the requirements of the fed-
eral program.
Attorney General Opinion H-297 (1974) considered the
provisions of former V.T.C.S. article 6252-9c, now chapter
305 of the Government Code, requiring registration by cer-
tain persons who sought to influence legislative action
through lobbying activities. Those provisions exempted
mter alia a member of the "executive branch" from the
registration requirement, "member of the executive branch"
being defined for purposes of the act as "an officer,
officer-elect, candidate for, or employee of any state
agency, department, or office in the executive branch of
state government." m Acts 1985, ch. 479, 5 1, at 1652,
1666. Acknowledging that "in other contexts 'state agency'
may be limited to those agencies exercising power state-
-wide," the opinion concluded that for purposes of the lobby
law under consideration, a river authority was a state
agency, and its general manager was exempt from the regis-
tration requirement.
Other opinions'of this office have, however, concluded
that river authorities were not state agencies within the
meaning of particular statutory provisions.
Attorney General Opinion V-569 (1948) ruled that none
of various river authorities and other article XVI, section
59, conservation and reclamation districts -- including the
Sabine-Neches Conservation District, the predecessor of ANRA
-- was a "department, commission, institution or agency of
the State Government" under the Employees' Retirement Act,
and that their employees were thus ineligible for membership
in the Employees‘ Retirement System. The opinion acknowl-
edged that such districts had been held to be state agencies
and their employees state employees "for certain purposes,00
citing Lower Colorado River Auth. v. NcCraw, suora. Howev-
er, the opinion concluded:
[W]e believe that construing the Act as a
whole, this and similar agencies and their
employees were not intended to be covered by
the Retirement Act for the reasons that the
50th Legislature contemplated only those
'employees of the State' whose duties relate
P. 5165
Mr. Steve Lilly - Page 5 (JM-1005 ,)
to state-wide activities with no intervening
corporate entity or body between the State
and the employee. In the case of conserva-
tion and reclamation districts the district
is the employer much the same as counties are
the employers of its [sic] employees and have
control of their duties. The district
controls the working hours of its employees
and is responsible for the compensation due
its employees.
Attorney General Opinion V-569 (1948) at 5.
Attorney General ~Opinion W-202 (1957) addressed the
question whether river authorities were state agencies
within the meaning of section 3(b) of former article 6252-9,
V.T.C.S. which provided:.
If an officer or employee of a state
agency, legislator or legislative employee is
an officer, agent, or member of, or owns a
controlling interest in any corporation,
firm, partnership, or other business entity
which is under the jurisdiction of any state
regulatory agency he shall file a sworn
statement with the Secretary of State dis-
closing such interest.
Section 2(a) of the Act defined "state agencyH as "any
office, department, commission or board of the executive
department of government."
The opinion concluded that:
[T]he statute is intended to regulate
State officials and employees as distin-
guished from local governmental officials and
employees. This construction excludes
governmental officers and employees of
subdivisions of the State, such as counties
and cities, and other strictly municipal
corporations whose operations and jurisdic-
tion pertain only to a particular locale
within the State.
. . . .
By the express terms of Article XVI, Sec-
tion 59, such River Authorities 'shall be
governmental agencies and tidies oolitic a d
cornorate. . . .' They are all limited ?n
their area of operation to a particular
p. 5166
Mr. Steve Lilly - Page 6 (JM-1005)
locale within the State by the respective
enabling statutes. The enabling statutes
vary considerably, but it may be said that
River Authorities incorporated pursuant to
Article XVI, Section 59 of the Constitution,
are quasi municipal corporations. - *
. .
Fresh Water SUDD~V Dlstrlct No. 2 V. a?m
135 Tex. 280, 142 S.W.Zd 945 (1940). (Empha:
sis in opinion.)
. . . .
The Lower Colorado River Authority and
similar River Authorities, which are quasi
municipal corporations and political subdivi-
sions of the State, are not among those
governmental agencies which were intended to
be regulated by [the Act].
Attorney General Opinion WW-202 (1957) at 3.
In support of its conclusion, the opinion cited Willacy
Countv Water Control and Imorovement Dist. No. 1 v. Aben-
droth, 142 Tex. 320, 177 S.W.2d 936 (1944) where the Supreme
Court had stated:
Irrigation districts, navigation dis-
tricts, levee and improvement districts, and
like political subdivisions created under
Section 59a of Article XVI of the Constitu-
tion, and statutes enacted thereunder carry-
ing out the purposes of such constitutional
provision, are not classed with municipal
corporations, but art held to be. ~olw
. .
Subdivisions of the S ate. oerformina aovern-
mental functions. and standina uoon the su
f otina as counties and other nolitical
&divisions established bv law. (Emphasis
in opinion.)
See also Attorney General Opinion M-522 (1969) (stat-
ing that a&le XVI, section 59, districts "are political
subdivisions of the state . . . standing upon the same
footing as counties and other political subdivisions estab-
lished by law").
Attorney General Opinion H-10 (1973) addressed the
question whether a state employee may also serve as director
of a rivers authority in light of the provisions of article
WI' section 40, of the Texas Constitution which generally
prohibits dual office holding but which states in part:
p. 5167
Mr. Steve Lilly - Page 7 (JM-1005)
State employees . . .'who are not State
officers, shall not be barred from serving as
members of the governing bodies of school
districts, cities, towns, or other local
governmental districts . . .
The opinion concluded that the river authority was a 'local
governmental district# under the constitutional provision,
and that a state employee was thus not barred from serving
at the same time as director of the authority.
Attorney General Opinion JR-197 (1984) did not consider
river authorities or other article XVI, section 59,. dis-
tricts, but rather the question whether county attorneys
were "officers or employees of any agency, institution, or
department of state government" under former article
6252-26, V.T.C.S. (The provisions of article 6252-2.6 were
repealed in 1985 by the legislation enacting .the Civil
Practice and Remedies Code, in which the former article
6252-26 provisions were codified as chapter 104, .the
chapter under consideration herein. Acts 1905, 69th Leg.,
ch. 959, at 3242, 3300.)
The opinion concluded that "article 6252-26 was meant
to apply only to officers and employees of state agencies,
institutions and departments having state-wide jurisdiction"
and thus did not apply to county attorneys, who were covered
~rather by former article 6252-19b, now chapter 102 of the
Civil Practice and Remedies Code.
Chapter 102 of the Civil Practice and Remedies Code
makes provisions similar to those in chapter 104, but
applies to conduct of employees and officers of a "local
government," while chapter 104 applies to conduct of employ-
ees and officers of a "state agency, institution, or depart-
ment." Section 102.002 provides in part:
(a) A local government may pay actual
damages awarded against an employee of the
local government if the damages:
(1) result from an act or omission of
the employee in the course and scope of his
employment for the local government: and
(2) arise from a cause of action for
negligence.
Section 102.001 defines "local government" as "a county,
city, town, special purpose district, and any other politi-
cal subdivision of the state." Section 102.004 authorizes
the local government, not the attorney general, to provide
p. 5168
Mr. Steve Lilly - Page 8 (JM-1005)
legal counsel in suits under chapter 102. Attorney General
Opinion JR-197, m, concluded that the provisions of what
are now chapters 102 and 104 respectively, are to be read Ir!
pari materia and "are not intended to, and do not, cover the
same officers and employees.H
The provisions of chapter 101 of the Civil Practice and
Remedies Code, the Texas Tort Claims Act formerly V.T.C.S.
art. 6252-19, also appear to stand in oari materiq with
those of chapters 102 and 104. Section 101.021 provides:
A governmental unit in the state is liable
for:
(1) property damage, personal injury,
and death proximately caused by the wrongful
act or omission or the negligence of an em-
ployee acting within his scope oft employment
if:
(A) the property damage, personal
injury, or death arises from the operation or
use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personal-
ly liable to the claimant according to Texas
law: and
(2) personal injury and death * so
caused by a condition or use of tangible
personal or real property if the governmental
unit would, were it a private person, be
liable to the claimant according to Texas
law.
Section lOl.,OOl, subsection (2) defines ~lgovernmental unit"
as:
(A) this state and all the several
agencies of government that collectively
constitute the government, of this state,
including other agencies bearing different
designations, and all departments, bureaus,
boards, commissions, offices, agencies,
councils, and courts:
. (B) a oolitical subdivision of this
tate. &pcludina any city, county, school
iistrict , junior college district, levee im-
provement district, drainage district, irri-
gation district, water improvement district,
p. 5169
Mr. Steve Lilly - Page 9 (JM-1005)
water control and improvement district, water
control and preservation district, freshwater
supply district, navigation district, con-
servation and reclamation district, soil con-
servation district, communication district,
and river authority; and
('3 any other institution, agency,
or organ of government the status and author-
ity of which are derived from the Constitu-
tion of Texas or from laws passed by the
legislature under the constitution. (Em-
phasis added.)2
In the light of the authorities and statutory provi-
sions discussed above, we conclude that ANRA is not a "state
agency, institution or department" under section 104.001.
The provisions of chapters 101 and 102, standing in oari
materia with those of chapter 104, indicate that river
authorities are "political subdivisions11 of the state, or
"units of local government," and not state agencies for
purposes of chapters 101, 102, and 104. They are not "state
agencies, institutions or departments" under chapter 104.
2. Section 101.103 provides for legal representation in
suits under chapter 101 as follows:
(a) The attorney general shall defend
each action brought under this chapter
against a governmental unit that has author-
ity and jurisdiction coextensive with the
geographical limits of this state. The
attorney general may be fully assisted by
counsel provided by an insurance carrier.
(b) A governmental unit having an area of
jurisdiction smaller than the entire state
shall employ its own counsel according to the
organic act under which the unit operates,
unless the governmental unit has relinquished
to an insurance carrier the right to defend
against the claim.
You do not ask about and we do not address the scope of
these provisions with respect to their coverage of river
authorities or other governmental units.
p. 5170
Mr. Steve Lilly - Page 10 (JM-1005)
We do not think that the inclusion of river authorities
as nstate agencies" under the Sunset Act -- to which you
referred in your request -- is dispositive. Compare, for
example, section 402.042 of the Government Code which
specifies that inter alia "the head of a department of state
government," "the head of a state board,' and "the chairman
of the governing board of a river authority" may request
attorney general opinions. The statute's separate reference
to chairmen of the governing boards of river authorities
indicates that such persons were not considered by the
legislature which enacted the provision to be included in
the categories of heads of departments of state government
or heads of state boards.
We think that the ruling in Attorney General opinion
V-569 (1948)' that conservation and reclamation districts
such as river authorities are employers standing in much the
same relationship to their employees as counties to theirs,
and having responsibility for their duties, working hours
and compensations, indicates that a river authority and not
the state should be responsible for the conduct of such an
employee which is the basis for an award of damages against
the employee. Chapter 102 rather than chapter 104 of the
Civil Practice and Remedies Code thus governs a river
authority's responsibility for such conduct of the river
authority's employees and officers, including the provision
of legal representation to such persons.
The Angelina-Neches River Authority his not
a "state agency, institution, or departmentI
within the meaning of section 104.001 of the
Civil Practice and Remedies Code. Thus
section 104.004 of that code, providing for
representation by the attorney general in
causes of action for certain conduct of
officers and employees of a "state agency,
institution, or department" under chapter 104
does not apply to the Angelina-Neches River
Authority or to its officers or employees.
Very
truly Y ,
L-l /tciLc
JIM
A’,
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
p..5171
,
Mr. Steve Lilly - Page 11 (JM-1005)
.
Lou MC-Y
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5172