Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MATTOX July 17. 1986 Attorney General Supreme Court Building Mr. L. L. Bowman, III Opinion No. JM-525 P. 0. 80X 12548 COlld.SsiOIl.‘2K Austin, TX. 78711. 2548 512/475-2501 Texas Savings & Losn Department Re: Whether a person appointed as Telex 9101874-1367 2601 North Lamar, Suite 201 conservator, supervisor, or liqui- Telecopier 512,475.0266 Austin, Texas 78705 dating agent under article 852a, V.T.C.S., is a State employee for 714 Jackson, Suite 700 purposes of chapter 104, of the Dallas, TX. 75202-4506 Civil Practices and Remedies Code 2141742.8944 Dear Mr. Boman: 4824 Alberta Ave.. Suite 160 El Paso. TX. 79905.2793 You ask about ,the en;ployment status of conservators, supervisors, 9?5/533-3484 and liquidating agents appointed by the Texas Savings and Loan Comis- sioner under sec.:Ilons 8.05, 8.08, 8.09, and 8.11 of article 852a, V.T.C.S. In particular you ask whether such persons are employees of 201 Texas, Suite 700 the state for purposes of sections 104.001 and 104.008 of the Civil uston. TX. 77002.3111 Practice and Remedies Code. r3l223.5686 Chapter 8 of the Savings and Loan Act, article 852a, V.T.C.S., 806 Broadway, Suite 312 provides for the cegulation of savings and loan associations by the Lubbock, TX. 79401.3479 Texas Savings and Loan Department and the Savings and Loan Comis- 8061747-5238 SiO*Sr. The comni_ssioner has authority, under specified circum- stances, to appoint conservators, supervisors, and liquidating agents 4309 N. Tenth, Suite B to oversee the affairs of particular savings and loan associations. McAllen. TX. 78501.1685 5121682-4547 If the savings and loan commissioner has reasonable cause to believe that them: are grounds for intervention in the affairs of a 200 Main Plaza. Suite 400 savings and loan ,association, he may enter an order placing the San Antonio. TX. 78205.2797 affairs of that swings and loan association under the control of a 512f2254191 conservator. V.T.C.S. art. 852a. 98.05(a)(4). The powers and duties of a conservator are set out in section 8.08 of article 852a: An Equal Opportunity/ Affirmative Action Employer (c) The conservator and any deputy or assistant conservatn'c appointed by the commissioner, on behalf of and under the supervision and direction of the comission~zr, shall take charge of the books, records, Fzperty, assets, liabilities, and business of the association and shall conduct the business and affa::rs of the association. The conservator shall minertake the removal of the causes and conditions that necessitated the conservatorship. During the conservatorship, the conservator shall p. 2410 Mr. L. L. Bowman, III - Pa::e 2 (~~-525) make such reports, to the commissioner as the com- missioner re uiG. The conservator shall take necessary measuret?to preserve, protect. and recover the assets or propezrty-of the association, including claims or causes XE action belonging to or that may be asserted by the: association. The conservator may deal with that Iroperty in the capacity of con- servator and may e:ile, prosecute, or defend against a suit by or against the association if the con- servator considers this action necessary to protect the interested party or property affected by the suit. . . . . (e) The commi;%;ioner shall determine the cost incident to the conservatorship, and this cost shall be paid out of the: assets of the association as the comissior. directs. (Emphasis added). V.T.C.S. art. 852a, §S.OS(c), (e). Also, the board of directors of a savings and loan association may voluntarily consent tc’ being placed under supervisory control. V.T.C.S. art. 852a, 58.11. :Cn that case, the commissioner may appoint a supervisor who has the powers of a conservator under section 8.08. * Because the legislature defined a supervisor’s powers by reference to a conservator’s powers, we think that the legislature intended a supervisor’s powrs, like a conservator’s powers, to be subject to the supervision and direction of the 1 comissioner. Also, section 8.11, like section l%..OB, provides that the cost of supervisory control “shall be fixed by the commissioner and paid by the associa- tion.” 1. Before August 26, 1985, the commissioner had no authority to appoint conservators or liquidating agents, but he did have authority, with the consent of the board of directors of the savings and loan association, to appoint a supervisory agent for a particular savings and loan association. Acts 1977, 65th Leg., ch. 239, at 642 (codified as article 852a. 58.18; deleted by Acts 1985, 69th Leg., ch. 231, at 1929). A supervisory ager,t had essentially the same function as a supervisor has under the 1985 revision of chapter 8 of article 852a. The prior provision authorj.zing the appointment of supervisory agents explicitly made them subject to the instructions and supervision of the cormnissioner. Acts 1977, 65th Leg., ch. 289, at 644. p. 2411 Mr. L. L. Bowman, III - Pa$:e 3 (JM-525) If the commissioner Einds that a savings and loan association cannot be rehabilitated, he may issue an order of liquidation appointing a liquidating agent and dissolving the association. V.T.C.S. art. 852a, §8.09(11). A liquidating agent, like a conservator 05 a supervisor, exercise:; his powers under the supervision of the commissioner. V.T.C.S. art. 852a, 58.09(c). The statutes governing liquidating agents do not specify how the costs of liquidating agents are to be paid. You ask whether conservators, supervisors, and liquidating agents are "employees" for purpor,es of sections 104.001 and 104.008 of the Civil Practice and Remedies; Code. Section 104.001 provides: In a cause of s.ction based on conduct described in section 104.0(5, the state is liable for actual damages, court &ts, and attorney's fees adjudged against: (1) an em]‘l.oyee,a member of the governing board, or any (other officer institution, or department; (2) a former employee, -- former member of the governing board, or any other former officer & a state agenc'L, institution, or department who was an emplovee or officer when the act or omission on -&ich the damages are based accursed; - (3) a phyr;j.cian licensed'in this state who was performin;: services under a contract with the Disability Determination Division of the Texas Pehabilitation Conmission or the Texas Department cf Mental Health and Mental Retardation when the act or omission on which the damages ax'e based occurred; (4) a perwn serving on the governing board of a foundaticm. corporation, or association at the request and on behalf of The University of Texas System; cr (5) the e:;tate of a person listed in this section. (Elr.&sis added). Section 104.002 provicies: The state is liable under this chapter only if the damages are tzsed on an act or omission by the person in the c&se and scope of the person's p. 2412 Mr. L. L. Bownan, III - Page 4 (JM-525) office, employment, or contractual performance for or service on behalf of the agency, institution, or department and if: (1) the damages arise out of a cause of action for n,+igence, except a wilful or wrongful act o'c an act of gross negligence; or (2) the dz.u.ages arise out of a cause of action for de:,rivation of a right, privilege, or immunity sesxred 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 acted in bad faith. (Empha:3:ls added). Section 104.008 provid#zs: This chapter does not waive a defense, immunity, or jurizdictional bar available to the state or its offi,cers, employees, or cont+actors. (Emphasis added). The legislature did no': define "employee" for purposes of section 104.002 or section 104.008 Iof the Civil Practice and Remedies Code. ? Therefore, in defining "employee" for purposes of those provisions we must rely on context and common usage. Government Code 53'11.011. Section 104.001 is an indemnity statute, and the consequence of determining that a person is an employee of the state is that the state becomes liable for damages based on certain conduct by the employee. See Civil Practice and Remedies Code §104.OC2. Therefore, it is usefumn determining the definition of "employee" for purposes of section 104.001 to look to definitions of "employee" in tort cases in which employer liabiliey depends on the tortfeasor's being an employee rather than an independent contractor. See also Civil Practice and Remedies Code 4101.001(l) (definition of "employee" for purposes of Tort Claims Act excludes "independent contractor"). In such cases the crucial test in determining whether someone is an employee is whether th2 employer has the right to control the details of the work. Newspapers Inc. v. Love, 380 S.W.2d 582, 591 (Tex. 1964). See alsoAtt~:rney General Cpinions H-160 (1973); ti-94 (1973). Also, it is the eight to control the details of the work rather than the exercise ;Er that right that governs the issue of whether someone is an enployee. Great Western Drilling Co. v. Simmons, 302 S.W.2d 400, 403 (Tex. 1957). As we pointed out above, the savings and loan commir;sioner, who is an employee of the finance commission, has the right to control the work of conservators, supervisors, and liquidatirg agents. V.T.C.S. art. 852n, 558.08(c), p. 2413 ,- Mr. L. L. Bowman, III - Page 5 (JM-525) 8.09(c): and 8.11; see also art. 342-205(a) (savings and loan commissioner is employee~?inance commission and subject to its orders and directions). 'Therefore, we think that conservators, supervisors and liquidating agents are "employees" for purposes of section 104.001. Since se':tion 104.008 uses the term "employees" in reference to the other provisions of chapter 104 of the Civil Practice and Remedies Code, it fo:llows that conservators, supervisors, and liquidating agents are "employees" for purposes of section 104.008 as well. You are apparently concerned about the employment status of conservators and superviso~~s because conservators and supervisors are paid out of the assets of a particular savings and loan association. (The statutes do not speciEy how liquidating agents are to be paid.) We do not think that the soc.rce of payment determines the question of whether conservators and supervisors are state employees. This office has noted before that, under some circumstances, "a person may bear the relationship of employlze to another even though the other is not paying his salary or wages." Attorney General Opinion H-94 (1973), citing J. A. Robinson Sons:-Inc. v. Wigart, 431 S.W.2d 327, 330 (Tex. 1968) (discussing matter of "borrowed servauts"). In Riverbend Country Club v. Patterson, 399 S.W.2d 382, 384 (Tex. Civ. App. - Eastland 1965, writ ref'd n.r.e.), the court upheld a finding that caddies were employees of a golf club even though the caddies were paid directly by the players. In Magnolia Petroleum Co. v. Francis, 169 S.W.2d 286, 288 (Tex. Civ. App. - Beaumont 1943, writ ref'd), the court held that the fact that a shipowner paid employees during the time they worked for anotler did not establish that they were the shipowner's employees durirg that time. Likewise, in this case we do not think that the fact that conservators and supervisors are paid out of the assets of savings and loan associations precludes a finding that they are employees of the state. We do note that article 342-205(b) contains the following language: Each Deputy Se.vings and Loan Commissioner, the Savings and Loan Examiners, each Hearing Officer, and all other officers and employees of the Savings and LoarT Department shall receive such compensation as is fixed by the Finance Commission which shall -paid from the funds of the Savings and Loan Department --* (Emphasis added). That language was added tc article 342-205 by Acts 1973, 63rd Leg., ch. 25, §l, at 37. The l.anguage in sections 8.08 and 8.11 that specifies that conservators and supervisors shall be paid out of the assets of a particular savings and loan association was added later. Acts 1985, 69th Leg., ~11.. 231, at 1929. Therefore, the later provisions that create employees who are not paid out of the funds of p. 2414 Mr. L. L. Bowman, III - Page 6 (JM-525) the Texas Savings and Loan Department should be read as exceptions to the general language of article 342-205. Stevens v. State, 159 S.W. 505, 506 (Tex. Grin?. Apr. 1913) (where statutes conflict, later statute controls); Cuellar v. State, 521 S.W.2d 277, 279 (Tex. Grim. APP. 1975) (special statu% controls over general statute). Thus, article 342-205(b) does not preclude conservators and supervisors from being employees of the state for purposes of sections 104.001 and 104.008 of the Civil Practjce and Remedies Code. Because the savings and loan commissioner has the right to control the details of the work of conservators, supervisors, aud liquidating agents, we conclude that they are employees of the state for purposes of sections lC4.001 and 104.008 of the Civil Practice and Remedies Code. SUMMARY Conservators, sy'ervisors, and liquidating agents appointed under chapter 8 of article 852a, V.T.C.S., are employees of the state for purposes of sections 104.001 and 104.00E of the Civil Practice and Remedies Code. dt?Jf.&& Attorney General of Texas JACK HIGHTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorney General RICK GILPIN Chairman, Opinion Committec~ Prepared by Sarah Woelk Assistant Attorney General p. 2415