                                               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
