                                 ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT


                                                     April 1,2004



The Honorable Joe Nixon                                       Opinion No. GA-0172
Chair, Committee on Civil Practices
Texas House of Representatives                                Re: Whether an ad hoc committee organized for
Post Office Box 29 10                                         designing an emergency reroute plan is immune
Austin, Texas 78768-2910                                      from civil liability under chapter 79 of the Civil
                                                              Practice and Remedies Code (RQ-0 11 g-GA)

Dear Representative       Nixon:

       You ask whether an ad hoc committee organized for designing an emergency reroute plan
is immune from civil liability under chapter 79 of the Civil Practice and Remedies Code.’

         You ask about the “Ad-hoc Committee of the III- 10 Incident Management Plan.” Request
Letter, supru note 1, at 1. We understand that the committee was formed through the El Paso
Metropolitan Planning Organization at the request of a state representative and that it is working on
a plan “that will allow coordination of the movement of traffic around a major incident site on
[Interstate Highway] I-l 0,” which is a hazardous cargo route.2 You inform us that the committee is
composed of city, county, and state officials representing police and fire departments, the City of El
Paso, the El Paso County sheriffs office, the Texas Department of Public Safety, and the Texas
Department of Transportation. See Request Letter, supra note 1, at 1. The committee is particularly
concerned about “rerout[ing] hazardous material cargo off hazmat3 routes onto city streets in case
an emergency would force the freeway to be closed.” Id. (footnote added).


         ‘See Letter from Honorable Joe Nixon, Chair, Committee on Civil Practices, Texas House of Representatives,
to Honorable Greg Abbott, Texas Attorney General, at 1 (Oct. 152003) (on file with Opinion Committee) [hereinafter
Request Letter].

           ‘Brief from Teresa Garcia, Assistant City Attorney, Office of the City Attorney, El Paso, Texas, to Nancy S.
Fuller, Chair, Opinion Committee, Office of Attorney General, at 1 (Dec. 1,2003) (on file with Opinion Committee);
see also 23 U.S.C. 5 134 (2000) (p roviding for metropolitan planning organizations); TEX. ADMIN. CODE $5 5.5 l-.57
(2003) (Office of the Governor, Federal and Intergovernmental  Coordination) (state designation of metropolitan planning
organizations).

           3Chapter 79 of the Civil Practice and Remedies Code defines the term “hazardous material” to mean “a
substance classified as a hazardous material under state or federal law or under a rule adopted pursuant to state or federal
law” or “a chemical, petroleum product, gas, or other substance that, if discharged or released, is likely to create an
imminent danger to individuals, property, or the environment.”        TEX. 0-v. PRAC. & REM. CODE ANN. $ 79.001(l)
(Vernon 1997). Federal regulations provide that “HAZMAT is a substance or material the Secretary of Transportation
determines to be an unreasonable risk to health, safety and property when transported in commerce. Therefore, there
are restrictions on transporting HAZMAT.” 4 1 C.F.R. 5 102-l 17.200 (2003); see also 49 U.S.C. $0 5102,5103-5127
(2000) (federal restrictions on transporting HAZMAT); id. 9 5 112 (highway routing of hazardous material).
The Honorable Joe Nixon - Page 2               (GA-0172)




        You believe that the committee may be immune from liability under section 79.003 of the
Civil Practice and Remedies Code, which the legislature recently added to chapter 79 in Senate Bill
5 13. See id.; see also Act of May 1,2003,78th Leg., R.S., ch. 58,§ 1,2003 Tex. Gen. Laws 90,91
(Senate Bill 5 13). Section 79.003 provides:

                       (a) Except in a case of reckless conduct or intentional, wilful,
               or wanton misconduct, a person is immune from civil liability for an
               act or omission that occurs in giving care, assistance, or advice with
               respect to the management of an incident:

                             (1) that is a man-made or natural disaster that
               endangers or threatens to endanger individuals, property, or the
               environment; and

                              (2) in which the care, assistance, or advice is provided
               at the request of an authorized representative of a local, state, or
               federal agency, including a fire department, police department, an
               emergency management agency, and a disaster response agency.

                        (b) This section does not apply to a person giving care,
               assistance, or advice for or in expectation of compensation from or on
               behalf of the recipient of the care, assistance, or advice in excess of
               reimbursement for expenses incurred.

TEX. CIV. PRAC. & REM. CODE ANN. 0 79.003 (Vernon              Supp. 2004). You suggest that the
committee falls within the scope of this provision because “[t]he type of emergency that would shut
down the freeway would be either a man made or natural disaster” and “[tlhe authorized government
official is the El Paso City/County Emergency Management Team asking the ad-hoc committee for
assistance, in this case, to design an emergency operations plan.” Request Letter, supra note 1,
at 1.

         In addition to section 79.003, chapter 79 contains a definitional provision, section 79.001,
and another substantive section that provides immunity from civil liability for certain acts or
omissions involving hazardous-material incident management, section 79.002. See TEX. CIV. PRAC.
& REM. CODE ANN. $8 79.001, .002 (Vernon 1997 & Supp. 2004). Both substantive sections
provide immunity to “a person.” Id. $0 79.002-,003 (Vernon Supp. 2004). Significantly, section
79.001 defines the term “person” for purposes of chapter 79 of the Civil Practice and Remedies
Code, including section 79.003. See id. $79.001 (Vernon 1997). Pursuant to section 79.001(2), the
term “person” means “an individual, association, corporation, or other private ZegaZ entity.” Id.
8 79.001(2) (emphasis added). The last item in the list, “other private legal entity,” indicates that
the legislature intended to limit chapter 79 immunity to private individuals, associations and
corporations. See id.; see also Gulf Ins. Co. v. James, 185 S.W.2d 966,969 (Tex. 1945) (“words of
general import in a statute are limited by words of restricted import imrnediately following and
relating to the same subject”). CJ: City of San Antonio v. City of Boeme, 111 S.W.3d 22,29 (Tex.
2003) (“When general words. . . follow specific and particularized enumerations of powers . . . , we
treat the general words as limited and apply them only to the same kind or class of powers as those
expressly mentioned.“).
The Honorable Joe Nixon - Page 3                 (GA-0172)




         In contrast to section 79.00 l(2), the Code Construction Act provides a general definition of
the term “person” that includes governmental and other nonprivate legal entities. See TEX. GOV’T
CODE ANN. 8 3 11.005(2) (Vernon 1998) (“‘Person’ includes corporation, organization, government
or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any
other legal entity.“). By specially defining person for purposes of chapter 79, the legislature has
expressly replaced the Code Construction Act’s definition, clearly indicating its intent to more
narrowly delineate the entities provided immunity. See id. (“The following definitions apply unless
the statute or context in which the word or phrase is used requires a different definition.“); see also
TEX. CIV. PRAC. & REM. CODE ANN. 0 1.002 (Vernon 2002) (Code Construction Act applies to the
Civil Practice and Remedies Code’s construction “except as otherwise expressly provided”).

         Our conclusion is supported by section 79.003’s legislative history, which indicates that the
legislature intended chapter 79 to apply to private individuals and entities as opposed to
governmental agencies and their officers and employees. Presenting Senate Bill 5 13 in committee,
the bill’s author described section 79.003 as extending liability protection to private entities.4 In
addition, a bill analysis states that “[tlhis liability limitation provision would apply only if a
governmental agency requested the help of a private person or company for disaster assistance.”
HOUSE RESEARCHORG., BILL ANALYSIS, Tex. S.B. 513,78th Leg., R.S. (2003) at 2. According to
the bill analysis, the law’s purpose is to encourage private companies to participate in disaster
assistance to help save government resources. See id.

        In sum, the legislature has narrowly defined the term “person” in chapter 79 to embrace only
private entities. Based on the information you have provided, the ad hoc committee appears to be
an informal working group with no formal legal status composed of individuals representing various
governmental agencies. See Request Letter, supra note 1, at 1. The ad hoc committee does not
appear to be an “association, corporation, or other private legal entity” provided immunity under
chapter 79. See TEX. CIV. PRAC. &REM. CODE ANN. 8 79.001(2) (Vernon 1997).

        You are also interested in whether section 79.003 provides immunity to members of the ad
hoc committee as individuals.’ We gather from your letter that the ad hoc committee’s members are
employees or officers of state or local agencies, such as police and fire departments, the City of El
Paso, the county sheriffs office, the Texas Department of Public Safety, and the Texas Department
of Transportation, who serve on the committee as representatives of their respective employers
within the scope of their official duties. See Request Letter, supra note 1, at 1. The liability of state
and local agencies and their officers and employees is generally governed by the Texas Tort Claims
Act and related provisions.      See TEX. CIV. PRAC. & I&M. CODE ANN. chs. 101, 102, 104, 108
(Vernon 1997 & Supp. 2004); see also TEX. GOV’T CODEANIN.0 418.174 (Vernon 1998) (providing
a member of the emergency management council or a local emergency planning committee with
immunity from liability for civil damages for an action arising from the performance of the person’s
duties on the council or committee).



        4Hearings on Tex. S.B. 513 Before the Senate Comm. on State Afairs,   78th Leg., R.S. (Mar. 20, 2003)
(testimony of Senator Jon Lindsay).

        Telephone Conversation with Teri Avery in RepresentativeJoeNixon’s of&e (Nov. 19,2003).
The Honorable Joe Nixon - Page 4                (GA-0172)




     Although the term “person” in chapter 79 includes an individual, see TEX. CIV. PRAC.&REM.
CODEANN. 9 79.001(2) (Vernon 1997), section 79.003 does not provide immunity to public officers
and employees for actions taken within the scope of their official duties. The statute provides
immunity for an act or omission “in which . . . care, assistance, or advice is provided at the request
of an authorized representative of a local, state, or federal agency, including a fire department, police
department, an emergency management agency, and a disaster response agency.” Id. 8 79.003(a)(2)
(Vernon Supp. 2004). By its terms, section 79.003 provides immunity to third persons who act at
the request of an authorized representative of a local, state, or federal agency, not to governmental
agencies or their authorized representatives. Section 79.003 is not intended to provide immunity for
governmental agencies or for individuals who act within the scope of their official duties as officers
and employees of governmental agencies and whose immunity is governed by other law. Moreover,
section 79.003’s legislative history clearly indicates that the legislature intended the provision
to provide immunity only to private persons. See HOUSERESEARCHORG., BILL ANALYSIS, Tex.
S.B. 5 13,78th Leg., R.S. (2003) at 2.
The Honorable Joe Nixon - Page 5              (GA-0172)




                                       SUMMARY

                        Chapter 79 of the Civil Practice and Remedies Code, which
               provides immunity from civil liability for certain acts or omissions
               involving management ofhazardous-material      incidents and disasters,
               applies only to individuals, associations, corporations, and other
               private legal entities. Chapter 79 does not apply to the “Ad-hoc
               Committee of the IH-10 Incident Management Plan,” a committee
               composed of city, county, and state officials representing police and
               fire departments, the City of El Paso, the El Paso County sheriffs
               office, the Texas Department of Public Safety, and the Texas
               Department of Transportation.    In addition, section 79.003 does not
               provide immunity to committee members, who serve on the
               committee    as representatives   of their respective governmental
               employers within the scope of their official duties, for acts or
               omissions within the scope of their official governmental duties.
               Their immunity for such acts or omissions is governed by the Texas
               Tort Claims Act and other related laws.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WTLLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
