                             Office of the Bttornep @enera
                                          &date of PCexae
DAN MORALES
 ATTORNEY
       GENERAL                               August 20,1996

     Mr. James D. Goerke                               Opinion No. DM-409
     Executive Director
     Advisoly commission                               Re: Whether Health and Safety Code
      on State Emergency Communications                section 777.007 quires    the state to in-
     333 Guadalupe Street, Suite 2-212                 demnify an individual who is not an
     Austin, Texas 78701-3942                          employee of a regionsl poison control cen-
                                                       ter and related questions (RQ-874)

     Dear Ms. Boyd:

             Section 777.007 of the Health and Safety Code requires the state to indemnity sn
     employee of a regional poison control center under Civil Bractice and Remedies Code
     chapter 104. We understand you to ask primarily whether section 777.007 requires the
     state to indemnity an individual who is not an employee of a regional poison control cen-
     ter. In our opinion, the plain language of section 777.007 limits indemnity under that
     section to employees; it does not indemnify individuals who are not employees of a poison
     control center. Thus, section 777.007 does not require the state to indw       a volunteer
     and an independent contractor, nor does it require the state to indemnity an employee of a
     state agency whose job involves performing some work for a poison control center. An-
     other statute, however, may indemnify an employee of a state agency acting within the
     scope of his or her 05&l duties.

             We believe it wig be help&l to begin by discus@ Health and Safety Code chapter
     777, which designates six health-care thcilities as regional poison control centerst Bach
     poison control center must provide a twenty-four hour, toll&e-e telephone refd      service
     that provides to the public and health-care professionals information on ingested poisons
     and exposure to poisonss Moreover, a poison control center must attempt to educate the
     public about poison prevention and health-care professionals about the treatment of poi-




             zId. 0 777.@02(a). Indeed, each @mal    poison amtml center must meet the crita’ia of the
     Anurican Associationof Poison ControlCenters,and that asocibn rfxpk a regional poison control
     wntcr to provideinformationto heallhcarc professionalsand the public 24 hours each day, 365 days pa
     year. See American Ass% of Poiin control Centers,Cxitaia for btifscation as a Regional Poison
     cmter pt. II.A (Jan. 19%).
MsMarykBoyd             - Page 2             (DM-409)




son and overdose victims, provide toxocologid assistance to state agencies, and be avail-
able to consult on medical toxicology.4 To carry out its functions, a poison control center
is required to “use” physicians, pharmacists, nurses, other professionals, and support staff
trained in various aspects of toxicology and poison control and prevention.J

        Section 777.007, about which you specifically ask, requires the state to indemnity
“a poison control center and an employee of a poison control center under” Civil Practice
and Remedies Code chapter 104.6 In your letter to this office, you have described various
individuals and organixations that are involved with a poison control center: the Advisory
Commission on State Emergency Communications and its personnel; the Texas Depart-
ment of Health and its personnel; personnel of the General Services Commission; the
members of the coordinatmg committee on poison control; health-care professionals who
vohmteer their time to the poison control center; and specialty consultants who provide, as
you state, “sophisticated toxicology or patient care information in their areas of expertise,”
e.g., herpetology, botany, and forensic toxicology.7 As we understand your question, you
wish to know which, if any, of these persons section 777.007 requires the state to in-
demnity, to the extent they serve a poison control center.

         Aside from volunteer health-care professionals and specialty consultants, the enti-
ties you list require some explanation. The first entity, the Advisory Commission on State
Emergency Communications, is created by Health and Safety Code chapter 771. Twelve
of its sixteen members are appointed by various public officials; the remaining four mem-
bers sit on the advisory commission because of another public 05ce they hold.* With


     ~oxieology is a science that deals with poisons and their effects. WEBSTER’
                                                                               NINTTI
                                                                                S   NEW
COUMIA~DIC~ONARY    1248 (1990).

        ‘Health   & safely code 5 777.003.

         51d. p 777.004(a). To be certified by the American Association of Poison ControlCentersas a
mgiooal poison center,a eentcrmust have at least one specialistia poison ioformationin the ccoterat all
timea, softicientadditionalstaff promptlyto handle the center’sincoming calls, sod the medical dhector
or qoalified desigaee available,at least oncall by telephoae, at all times. Criteriafor Cutitication as a
RegionalPoison Centersupro pt. EA.

       %a-awe yoo do not ask abouta poison controlcenter’scorporateliiility, we mnsider only the
indemnityto which an employeeis entitled.

        ‘To    be ecrtiftedby the AmericanAssociationof P&on Ccntrcl Centcn, a regional potson ccn-
tml emotermust maintaina list of sqecialtyeoosoltantswho are availableon ao on-call basis. Criteriafor
Chiitieation as a Regional Poison Centersupro, pt. ll.C.4. A specialtywnsoltant most be qoaliied to
pvidc sophisticatedtoxicologyor patient-careinformationin tbe consultant’sama of expertise. Id. pt.
ll.E.5. A specialtymnsoltaot should be availableon-call, as needed. Id. Finally, the amas of expertise
rdeued by the eat&s list of eonsoltantsshould mirrorthe @pmof poisonings ewnmtemd io the m-
pion. Id.

            Qealth & Safetycode $771.031(a).
MsMarykBoyd            - Page 3             @M-409




reference to the poison control center network, the advisory commission is to administer
the centers’ telecommunications requirements. 9 The advisory commission funds poison
control center services by collecting a surcharge on local exchange and intrastate long-
distance telephone charges.r”

         The Texas Department of Health is established generally to protect and promote
public health.11 The department is governed by a six-member board, each member of
which is appointed by the governor.12 With respect to the regional poison control centers,
the Department of Health shares r&-making authority with the Advisory Commission on
State Emergency Communications;~3      it also shares with the advisory wmmission respon-
sibiity to award grants to fund the regional poison control centers.t4

         The General Services Commission, whose six members are gubernatorial appoint-
ments,rr is generally responsible for procuring all of a state agency’s goods and service~.~~
Sign&ant to your question, the General Services Commission must manage the operation
of a telecommunications system for all state agencies.*7 The General Services Commis-
sion also must, to the extent possible, satisfy each state agency’s telecommunications
needs.t* For purposes of the State Purchasing and General Services Act,lg a “state
agency” includes an agency in the executive branch of state government created by a state
statute.20 The Advisory Commission on State Emergency Communications, which admitt-
isters the poison control centers’ telecommunications needs, qualiies as a state agency
under the State Purchasing and General Services Act.


       gId. p 771.051(a)(l).

        ‘Old. 08 771.071(a), .072(a), (d), (e), ,075.

        “Id. 8 11.002.

        121d. § 11.005(a). ‘lb board employs a ammissionu to admUter the dcpartmcnf but tbc
cOrnmiSSiOneris always subject to the bed’s mpervision Id. $8 11.012(a), .013(a), @I.

        ‘)Id. 0 777.001(b).

        “1d. 5 777.009.

        ‘%ov’t   Chic $2152.051.

        9d.   8 2155.061(a).

        “Id. 0 2170.051(a).

        ‘*Id. 8 2170.051(b).

        %ov’t Codetit. 10, s&tit. D; see id. 8 2151.001.

        3”Id. 8 2151.002(2)(A)~
Ms. Mary A. Boyd - Page 4                 @M-4@)




        The coordinating committee on poison control, the last entity you specitically
mention, advises the Texas Board of Health and the Advisory Commission on State
Emergency Communications.sl Six of the committee’s members are appointed by each of
the health-care institutions that serve as regional poison control centers; the remaining
nine members are appointed by other public health-care institutions and state agencies,
including the Advisory Commission on State Emergency Communications and the De-
partment of Health.

         To resolve whether these entities, as well aa volunteers and specialty wnsultants,
are entitled to indemnity under Health and Safety Code section 777.007, we must interpret
the section. On its face, section 777.007 rewires the state to indemnify only an employee
of the center under Civil Practice and Remedies Code chapter 104. Consequently, anyone
who is not employed by a poison control center is not entitled to indemnity under section
777.007.

         Chapter 777 of the Health and Safety Code does not, however, define the term
“employee.” Incidentally, when the legislature enacted Health and Safety Code section
777.007 in 1993,n chapter 104 of the Civil Practice and Remedies Code also did not de-
tine the term.u We must, therefore, define the term in context and wnsistent with
wmmon usage.14 In Attorney General Opinion lM-525 this o5ce de&ted the term
“employee” for purposes of Civil Practice and Remedies Code chapter 104 in light of the
statute’s purpose to indemnify an employee of the state.25 Because chapter 104 generally
renders the state liable for damages caused by an employee’s conduct, the opinion exam-


        21Hcalth& SafetyCcdc p 777.008(a).

       %ee Act of May 27, 1993, 73d Leg., RS., ch 670, sec. 1, § 777.007, 1993 Tex. Gen Laws
2495.2497.

         “Prior to 1995, Civil Practiceand RemediesCode chapter 104 indemnified,among others, an
employeeor &cer of a stateagency. See Civ. Rx. & Rem. Code 5 104.001(l), amended by Act of May
9, 1995,74th Leg., RS., ch. 139.8 2, 1995 Tex. Sees. Law Serv. 982,982. The Seventy-fomtbLegisla-
turnamended s&on 104.001 to indemn@ the same people but regard1es.s of whether t%?y pe#md
their servtces for compensation. See Act of May 9, 1995, 74th Leg., R.S., ch. 139, 5 2, 1995 Tex. SesF.
Law Serv. 982,982. To the extent that the 1995 amembentdefinestheterm”employee”toinc1edea
vohmccr, we eaonot importthe deJinitioninto Healthend SafetyCode section 777.007; we may importa
statutoryddlnition only into a Iater-enaUedstatute. See &v&Me v. HoustonIndep. Sch. Dist., 508
S.W.2d 675.677-78 (Tea. Civ. App.-Houston 114thDist.] 1974, no tit) (citing Brown v. Lkden, 50
S.W.2d 261 (Tex. 1932)). Becausethe “detinition”cannot be imported,for puqnxs of this opinion we
diseomCivil Fvacticcand RemediesCodechapter 104 as though the 1995 amendmentto section 104.001
had not oaxmd. Of cootse, if an individualperformingservicesfor a regionalpoison controlcenteris
doiog KIas a volunteerfor a state agency to which Civil Pm&es and RemediesCode chapter 104 ap-
plies, the individualis indannified m~derchapter104.

        24SeeAttorneyGeneralOpinionJh4-525(1986) at 4 (citing Gw’t Code8 311.011).

        25~
Ms.MaryABoyd            - Page 5           @M-4@9




ined analogous private-sector tort cases in which an employer’s liability depends on the
tortfeasor’s being an employee, not an independent contractor.26 In these cases, an indi-
vidual’s status as an employee depends upon whether the employer has the right to control
the details of the wok2’ Whether the employer actually exercises the right is inwnse-
quentiaL2*

        In our opinion, because the context of Health and Safety Code section 777.007 is
similar to that of Civil Practice and Remedies Code chapter 104, we may define
“employee” in the same way. The detlnition articulate-d by Attorney General Opinion
Jh4-525 is designed to distinguish an employee from an independent contractor, however;
it does not necessarily distinguish an employee from a volunteer. Nevertheless, a federal
wurt in Maryland has noted that the nature of a volunteer’s service is such that an
%mployer” has little control over the volunteer. 29 For instance, although an employer
may instruct a volunteer as to the services the employer wishes the volunteer to perform,
the employer has little control over the volunteer’s hours of work, dress, absenteeism, or
whether the volunteer satisfactorily completes the assigned tasks.30

        Furthermore, we believe an express or implied contract for compensation is an
additional characteristic of the employee-employer relationship that distinguishes an em-
ployee from a volunteer. Section 101.001 of the Civil Practice and Remedies Code
d&es ‘kmployee” for purposes of the Texas Tort Claims Act31 as “a person . . . who is in
the paid service of a governmental unit     .“32 A volunteer is not an employee for whose
conduct a governmental unit may be liable under the Tort Claims Act.33 Because the pur-

        “Id.

        nId. (citing Newqxzpers Inc. v. Low, 380 S.W.Zd582,591 (-k.x. 1964)).

        IsId. (citing Great Western Killing Co. v. Simmms,302 S.W.2d 400,403 (Tex 1957)).

        %ee      Haavistola v. Cmnmunity Fin Co., 812 F. Supp. 1379, 1386 (D.C. Md.), mv’d on other
gram& 6 F.3d 211 (4th Cu. 1993).

        %ee id.

        31Cii.   Fmc. &Rcm. Cde ch. 101;see id. 8 101.002.

        32h An0rneyGeneralO@iOODM-346this Offia SIatCd    that mOMiSSiOtlcrs of the Taras wok-
cm’ Compensation Commission am io the paid ervia of a govmlmentalcnutyandtbemfore
“employees”for pmpom of Civil Practia and RemediesCcdc chapter101 becausethey am ktitkd to
rcimburscmcntfor actual nectasaryexpcmesmdactuallc4twagesductoatkndaxeatmmmission
matings.” AttorneyGeneralOpinion DM-346 (1995) at 1 n.1. Although a vohmteerfor a regional pi-
sonwn~lcentermayrcaivenimburscmcntforhisorhncxpenses,wcfiodmstatutccntitlinga
volunteertc reimbursement.CJ Gov’tCode 5 2109.004(b)(l) (authorizinggwcmmm talemilytbatpm-
vidcs human servicesto reimbursevolunteersfor actualand necesaty expenses). In addition,a volunteer
is not compensatedin any wayfor lost wagesdueto the voluntar work.

        “‘See Harris Cmmry v. Dihrd,    883 S.W.Zd166, 167 (lb.   1994),
MsMaryABoyd          - Page 6           K’M-9




poses of the Tort Claims Act and section 777.007 of the Health and Safety Code pertain
to the state’s liability in tort cases, we believe we must construe the term “employee”
wnsistently in both statutes, especially since the legislature has not provided to the wn-
trary.

        In addition, for purposes of the Workers’ Compensation Act, the Texas Court of
Civil Appeals has held that an individual who performs a service of his or her own free will
without any promise of remuneration is a volunteer, not an employee.” While the court
based its conclusion on the detlnition of the term “employee” in the Workers’ Compensa-
tion Act, we believe the court’s definition comports with the wmmon understanding of
the term. For example, BLrck ‘r Low LXwonmy defines employee generally as “a person
in the service of another under [a] contract of hire”     . a person working for salary or
wages.“% A volunteer, by contrast, is an individual who serves with no promise of remu-
neration.f7

         We therefore conclude that, unless defined otherwise by statute, an individual’s
status as an employee is determined not only by whether the putative employer has a right
to wntrol the employee, but also by whether the putative employer has wntracted, ex-
plicitly or implicitly, to compensate the employee for the employee’s services. We note
that Civil Practices and Remedies Code section 102.001( 1) explicitly detines “employee”
for purposes of determining a local government’s tort-claim liability to include a volunteer.
We think, though, that this inclusion of volunteer is an exception to the genera) rule.
Moreover, we believe the detinition of employee in the Texas Tort Claims Actss more
closely fits the legislature’s intended usage of the term in Health and Safety Code section
777.007, given that both statutes involve the state’s liability for its employees’ conduct.

        Consequently, in answer to your specific questions, Health and Safety Code sec-
tion 777.007 requires the state to indemnify only those individuals with whom a poison
control center contracts, explicitly or implicitly, to compensate and whose services the
poison control center has a right to control. Both of these requirements must be met. An


        34See Texas Employers Ins. Au’n v. BurrelI, 564 S.W.2d 133, 134 (Tcx. Civ. App.-Beamnont
1978, writ refd nr.e.) (citing Nobles v. Texas bdem. Ins. Co., 24 S.W.Zd367.369 (Xx. Comm’u&.
1930,judgm’tadopted)and othercases).

       35Black’s cites, for tbis dehitiou of “employa,” Rtverbend Country Club v. Patterson, 399
S.W.Zd382,383 (Tex. Civ. App.-E&and 1965, tit r&d n.r.e.). BUCK’SLAW        DICTIONARY   471 (5th
cd. 1979).

        NId. (fwtnok add@; see also Graves v. Women’s professional Rodeo Au’n, 907 F.2d 71.73
(8th Cu. 1990) (stating that essential prerequisiteof employer+mployeerelationshipis that employer
mmPcu.m= anployec).

        “BLACK’S LAW DICTIONARY
                              at     1413.

        3*&e supra text accompanyingnotes 31-32.
MsMaryABoyd            -Page   7         @M-409)




individual employed by a state agency who, in accordance with statutory duties bestowed
upon that agency, works with a regional poison control center is not an employee of the
center, although the individual is an employee of the state agency. A volunteer who serves
a regional poison control center is not an employee of the center because the volunteer has
no expectation of remuneration for his or her services. Likewise, an individual who is
wntractually entitled to payment from a poison control center, but who is not subject to
the center’s right to control the details of the work, is an independent contractor, not an
employee of the center.

        Accordingly, section 777.007 does not require the state to indemnify many of the
individuals you list. The state need not indemnity under that section individuals who serve
a regional poison control center because they are employed by a state agency that has
some responsibility with respect to the center. Thus, 05cers and employees of the Advi-
sory Commission on State Emergency Communications, the Texas Department of Health,
the General Services Commission, or the coordinating committee are not employees of a
regional poison control center, and section 777.007 does not require the state to indemnify
them.

          Other statutes may provide these individuals with indemnity or exempt them from
liability, however. Health and Safety Code section 771.053(b), for example, may exempt
from liabii members of the Advisory Commission on State Emergency Communications.
Furthermore, chapter 104 of the Civil Practice and Remedies Code requires the state to
indemnity an employee or officer of a state agency.39 Although chapter 104 does not de-
fme state agency, we believe the term includes entities created by statute, that have
state-wide jurisdiction, and the members of which are appointed by state 05cials.~ Ac-
wrdingly, we conclude that employees and officers of the Advisory Commission on State
Emergency Communications (to the extent they are not exempt from liabiity), the Texas
Department of Health, and the General Services Commission are within the indemnity
Civil Practice and Remedies Code chapter 104 provides. Of course, chapter 104 requires
the state to indemnify an employee or officer only if the damages are predicated on the
employee’s or officer’s act or omission performed in the course and scope of the employ-
ment or ~ffice.~r Additionally, chapter 104 requires the state to indemnify an employee or
 officer only ifthe damages arise out of a cause of action for negligence; the damages arise
 out of a cause of action for deprivation of a federal wnstitutional or statutory right, priti-
 lege or immunity; or the attorney general determines that the state’s best interest warrants
 indemnifying the employee or o5cer.”

        ‘viv. Rat. &Run. c!dc 8 104.001(1).

         %ee AttorneyGateral Opinion JM-1005(1989) at 4 (citing Attotmy’ Gzncd Opinion H-297
(1974)) (defining “stateagency”).

        41Cii.   Pmt. &Rem. Cadc 8 104.002(a).

        42Health   & say   CcJde8 777.007.
Ms. Mary A Boyd - Page 8                 @‘M-4@‘)




        Section 777.007 of the Health and Safety Code does not require the state to in-
demnify a volunteer of a regional poison control center:3 We camtot determine whether
section 777.007 requires the state to indemnify a specialty consultant because you do not
indicate the circumstances of a specialty wnsultant’s service to a regional poison control
center. If the specialty wnsultant is an employee of a regional poison control center, he or
she is entitled to indemnity under section 777.007. If on the other hand, the specialty
wnsultant is not a poison control center employee, he or she is not entitled to indemniti-
cation under section 777.007, although the consultant may be entitled to indemniftcation,
under another statute, as an employee of another agency.




        “Govcmmat Code chapter2109 tquires a gwcnuncntal entity that providesfor basic human
mental or physical ueeds to um volt,      if feasible. Gov’t Code 0 2109.002; se also id. 0 2109.001
@dining ‘gowmmed entity,” “humau services”). A govmuacatal entity’s vohnltar pmgram may,
amougotherthiugs,%tubliiauinsumuce programtoprotectvol~teersintheperformance ofvuluntccr
mrvias.” Id. p 2109.004@~2). You do uot ask, uud we do uot, therefore,determinewhethera regioual
poison controlcenteris a goverummtal entity that provide6human services,to which Gwemmcut Code
zcrFg         is applicable. We also do not consider whether the insuraua programchapter 2109
             overmueutalentityto establishincludesliabilityinsurance.
Ms. Mary A Boyd - Page 9            @M-409)




                                 SUMMARY

               Health and Safety Code section 777.007 requires the state to in-
         demnity only an employee of a regional poison control center. An
         individual’s status as an employee is determined by whether the pu-
         tative employer has a right to control the details of the individual’s
         work. In addition, an employee is distinguished from a volunteer by
         an employee’s wntractual (express or implied) right to wmpensa-
         tion.

              An employee of a state agency, not a regional poison control
         center, is not entitkd to indemnikation under Health and Safety
         Code section 777.007. Thus, an 05cer or employee of the Advisory
         Commission on State Emergency Communications, the Texas De-
         partment of Health, the General Services Commission, or the
         wordiiting     wmmittee established by Health and Safety Code sac-
         tion 777.008 who are not employees of a regional poison control
         center are not entitled to indemnification under section 777.007. Of
         course, other statutes may provide these individuals with indemnity
         or exempt them 6om liability. Furthermore., section 777.007 does
         not require the state to indemnify vohmteers or independent wntrac-
         tars of a regional poison control center.




                                                   DAN MORALES
                                                   Attorney General of Texas

JORGE VEGA
Fht Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
