                              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




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