                             September 2, 1988



     Honorable Hugh Parmer             Opinion No.   JM-951
     Chairman
     Intergovernmental Relations       Re: Whether a public tele-
       Committee                       vision station is a "char-
     Texas State Senate                itable organization"   for
     P. 0. Box 12068                   purposes of liability, in-
     Austin, Texas    78711            eluding slander and libel,
                                       and related questions
                                       (RQ-1513)

     Dear Senator Parmer:

           You ask our opinion on a number of questions concerning
     the application of the Charitable Immunity and Liability Act
     of 1987    (the Act) to suits against public television
,-   stations and volunteer members of the supervisory      boards
     responsible for the control of such.stations.   We will first
     review the Act and then answer each of your questions      in
     turn.

          We assume that‘by     "public television  stations"  YOU
     mean those broadcasting entities licensed by the Federal
     Communications Commission pursuant to section 301 of Title
     47 of the United States Code: and which are owned and
     operated by nonprofit     entities; and which provide    non-
     commercial,   educational   broadcast   programming  for  the
     public.1 --
               See also 47 U.S.C. 9 396.

          The Charitable Immunity and Liability Act of 1987 was
     adopted by the legislature to "reduce the liability exposure
     and insurance costs" of "bona-fide" and *'well-supported@'
     charitable organizations "and their employees and volunteers
     in order to encourage volunteer services and maximize    the



          1. We do not address those public television   stations
     which are licensed to public entities such as the state, its
     universities, or a political subdivision.     See aenerally
     Civ. Prac. & Rem. Code ch. 101.
h




                                   p. 4808
Honorable Hugh Panzer - Page 2     (JM-951)




resources devoted to delivering these services."      Civ. Prac.
& Rem. Code § 84.002.

     The Act provides for limited grants of immunity     for
volunteers serving charitable organizations and for limita-
tions on liability   in money damages for employees  and for
the organizations.   See Civ. Prac. & Rem. Code !j!j 84.004,
84.005, 84.006, 84.007. Both the grants of immunity and the
limitations on liability are subject to numerous provisos.
See Civ. Prac. & Rem. Code 8 84.007. In particular, it is
important to note in reviewing your questions that none of
the immunity-conferring and liability-limiting provisions in
the Act apply to

        an act or omission that is intentional,
        wilfullv or wantonlv nealiaent, or done with
        conscious indifference or reckless disregard
        for the safety of others.   (Emphasis added.)

Civ. Prac.     & Rem. Code 9 84.007(a).      Additionally,  the
limitations     on   liability   available  to       charitable
organization    and its employees    do not appl; unless    the
organization     maintains  a specified amount of liability
insurance.     Civ. Prac. & Rem. Code 5 84.007(g).

     You first ask whether a public television station is
a "charitable organization" within the meaning of section
84.003(l) of the Act.

     Such.a determination  is a question of fact: The Act
sets.out two alternative sets of criteria for determining
whether a particular entity is a "charitable  organization"
for the purposes of the Act:

           (1)     'Charitable organization' means:

            (A) any organization exempt from federal
        income tax under Section      501(a) of     the
        Internal Revenue Code of 1986 by being listed
        as an exempt organization in Section     501(c)
        (3) or 501(c)(4) of the code, if it is a
        nonprofit corporation, fcundation,    community
        chest, 'or fund organized and operated exclus-
        ively for charitable, religious,     prevention
        of cruelty to children or animals, youth
        sports and youth recreational, or educational
        purposes,   excluding   private    primary   or
        secondary schools, alumni associations      and
        related on-campus     organizations,    or    is




                                p. 4809
       Honorable Hugh Parmer - Page 3   (JM-951)




               organized  and   operated  exclusively    for
               the promotion  of social ~welfare by being
               primarily engaged in promoting    the common
               good and general welfare ,of the people in a
               community: or

                   (B) any bona fide charitable,   religious,
               prevention of cruelty ~to children or animals,
               youth sports and youth recreational,        or
               educational  organization,   excluding  alumni
               associations and related on-campus   organiza-
               tions, or other organization    organized  and
               operated exclusively  for the promotion     of
               social welfare by being primarily engaged   in
               promoting the common good and general welfare
               of the people in a community, and that:

                      (i)   is organized and operated exclu-
                  sively for one or more of the above
                  purposes:

                      (ii) does not engage in activities
                  which in themselves are not in furtherance
_--.              of the purpose or purposes:

                     (iii) does not directly or indirectly
                  participate or intervene in any political
                  campaign on behalf of or in opposition to
                  any candidate for public office;

                     (iv) dedicates its assets to achieving
                  the stated purpose or purposes    of the
                  organization:

                     (vi does not allow any part of its net
                  assets on dissolution of the organization
                  to inure to the benefit of any group,
                  shareholder, or individual: and

                     (vi) normally receives more than one-
                  third of its support in any year       from
                  private or public gifts, grants, .contribu-
                  tions, or membership fees.

                  (2)   'Volunteer' means a person rendering
               services for or on behalf of a charitable
               organization who does. not receive compensa.-
               tion in excess of reimbursement for. expenses
               incurred, and such term includes a person




                                        p. 48~10
Honorable Hugh Parmer - Page 4     UM-951)




        serving as a director,'officer,      trustee.I or
        direct service-voluntier.

            (3) 'Employee' means any person,       in-
        cluding an officer or director, who is in the
        paid service of a charitable    organization,
        but does not include an independent      con-
        tractor.

            (4) 'Good faith' means the honest,   con-
        scientious pursuit of activities    and pur-
        poses that the organization is organized  and
        operated to provide.

Civ. Prac. & Rem. Code g 84.003.

     We cannot engage     in fact-finding   in the     opinion
process, and you provide no facts concerning a particular
public television  station. Certainly,    the licensee   of a
public television   station may be, in the        appropriate
circumstances, a "charitable organization."    For instance,
we note that the rules and regulations       of the Federal
Communications  Commission   stipulate that     public    non-
commercial television broadcqsting stations will

        be licensed only to nonprofit      educational
        organizations  upon      showing    that   the
        proposed stations willa be used primarily   to
        serve the educational needs of the community;
        for the advancement of educational   programs:
        and to furnish a nonprofit and noncommercial
        television broadcast service.

47 C.F.R. 5 73.621. &      &&p Commission Policy Concerning
the Noncommercial Nature of Educational Broadcast  Stations,
86 F.C.C.2d 141 (1981). The Act clearly protects   nonprofit
(whether or not tax-exempt) entities organized and operated
for educational   purposes   as "charitable  organizations."
Civ. Prac. & Rem. Code § 84.003(1)(A) and (B). Thus, public
television stations may qualify as charitable organizations,
but each case must await resolution    on a proper    factuai
record.

     YOU next ask whether libel or slander, or both, are
included within the definitions of lVdamage*lor "injury" as
used in sections 84.004(a) of the Civil Practices        and
Remedies Code.




                                 p. 4811
Honorable Hugh Parmer - Page 5     (JM-951)       ~




       Section 84.004(a) of the code-provides   in relevant part
that

          a volunteer    who is serving as an officer,
          director,   or    trustee    of       charitable
          organization is immune from citil liabilitv
          for any act resulting in death, damaae,       or
          iniury if the volunteer was acting       in the
          course and scope of his duties or functions
          as an officer, director,      or trustee within
          the organization.     (Emphasis added.)

Civ. Prac. & Rem. Code 0 84.004(a).

       Libel is

          a defamation  expressed in written or other
          graphic form that tends to blacken the memory
          of the dead or that tends to iniure a living
          person's  reputation   and   thereby   expose
          the person to public hatred, contempt      or
          ridicule, or financial  iniury or to impeach
          any personrs honesty,  integrity, virtue,  or
          reputation or to publish the natural defects
          of anyone and thereby expose the person to
          public hatred, ridicule, or financial iniurv.
          (Emphasis added.)

~Civ. Prac. & Rem. Code 5 73.001.       Slander  -- the oral
 transmission of a defamatory statement     -- is actionable
 under the common law. McDaniel v. Kinq, 16 S.W.2d 931, 932
 (Tex. Civ. App. - San Antonio 1929, no writ). The broad-
 casting of defamatory statement read from a script is libel,
 rather than slander. Kennedv v. Texoma Broadcasters,    Inc.,
 507 S.W.2d 864~, 866 (Tex. Civ. App. - Dallas 1974, no writ).
 Thus, defamation   is an "injury" within the meaning       of
 section 84.004(a) of the Act. An action for defamation    may
 or may not require the plaintiff to plead and prove actual
 damages.   See generallv 36 Tex. Jur. 2d §§ 93-95.

     You also ask whether a defamatory    public television
broadcast will subject a public television      station and
volunteer members of the board of directors which govern the
station to liability for the defamation.

     The special nature of some defamations   may mean that
the Charitable Immunity and Liability Act will not apply to
every libel or slander. This is so because section 84.007 of
the Act states unequivocally that the Act does not




                                  p. 4812
Honorable Hugh Parmer - Page 6    (JM-951)




        apply to an act'~or omission that is- inten-
        tional, wilfully  or wantonly  negligent,  or
        done with conscious indifference or reckless
        disregard   for   the   safety   of   others.
        (Emphasis added.)

Civ. Prac. and Rem. Code § 84.007(a).. While proof of intent
is not required to establish   liability  for actual damages
in a defamation action, see yornbv v . Hunter  385 S.W.2d 473
(Tex. Civ. App. - Corpus Christi 1964, no writ), any defama-
tion proven to be intentional  is outside of the protection
conferred   by the Act.    Thus, volunteers    and employees
associated with a charitable   entity will not be able to
claim the protection of the Act in the case of intentional
defamation.

      The Civil Practice and Remedies Code provides a limited
defense for broadcasters accused of transmitting a defama-
tion:

            (a) A broadcaster   is    not liable      '
        damages for a defamatory statement publish::
        or uttered  in or as a part of a radio. or
        television broadcast  by one other than the
        broadcaster  unless the    complaining    party
        proves that    the broadcaster     failed    to
        exercise due care to prevent the publication
        or utterance of the statement in the broad-
        cast.

           (b) In this section, 'broadcaster' means
        an owner, licensee, or operator of a radio
        or television station . . . and the agents
        and employees  of the owner, licensee,   or
        operator.

Civ. Prac. & Rem. Code 5 73.004. This provision furnishes a
limited defense for the members of the board of directors of
a public television station licensed to a Texas not-for-
profit corporation,  for they are the "operators"    of the
station. See, e.s., V.T.C.S. art. 1396-2.14 (the affairs of
a nonprofit  corporation  shall be managed by a board of
direct,ors).

     We also caution that in addition to the Texas law of
defamation, public broadcasters are subject to the "personal
attack" rules of the Federal Communications      Commission.
That rule provides:




                                 p. 4813
     Honorable Hugh Parmer - Page 7    (JM-951)




                 (a)  When,   during the presentation     of
             views on a controversial      issue of public
             importance,    an attack is made upon. the
             honesty,    character,    integrity        like
             personal qualities    of an identifier person
             or group, the licensee       shall, within
             reasonable time and in no event later thai
             one week after the attack, transmit to the
             persons or group attacked:

                (1) Notification of the date,, time     and
             identification of the broadcast;

                (2) A script or tape     (or an accurate
             summary if a script or tape is not available)
             of the attack: and

                (3) An offer of a reasonable   opportunity
             to respond over the licensees' facilities.

                 (b) The provisions  of paragraph (a) of
             this section shall not apply to broadcast
             material which falls within one or more  of
-.           the following categories:

                (1) Personal attacks on foreign groups or
             foreign public figures;

                (2) Personal attacks occurring       during
             uses by legally qualified candidates.

                 (3) Personal attacks made during broad-
             casts not included in paragraph     (b)(2) of
             this section and made by legally qualified
             candidates, their authorized   spokespersons,
             or those     associated with   them in     the
             campaign, on   other  such candidates,   their
             authorized spokespersons or person associated
             with the candidates in the campaign: and

                (4), Bona fide newscasts, bona fide news
             interviews, and on-the-spot coverage of bona
             fide~news events, including commentary     or
             analysis contained in the foregoing programs.

                (c) The provisions ~of paragraph   (a) of
             this section shall be applicable     to edi-
             torials of the licensee, except in the case
             of noncommercial  educational stations since




                                      p. 4814
                                                                 ,

Honorable Hugh Parmer - Page 8     (JM-951)




        they .are   precluded   from~ editorializing
        (section 399(a), Communications Act).

47 C.F.R. 5 73.1920.

     A violation  of this rule will not result in civil
liability, but it may cause the Communications Commission to
revoke the license of a public broadcaster.

                        SUMMARY

             ~The Charitable
                       '.      Immunity and Liability
        Act of 1987, Civ. Prac. & Rem. Code ch. 84,
        may provide    for    immunity to     volunteers
        serving as members of the boards of directors
        of public broadcasters.       Whether   the Act
        applies to a public broadcasting station, its
        employees, and volunteers is a question        of
        fact. Defamation     is a category of injury
        subject to the Act.        Public broadcasting
        stations,    their    operators,   agents     and
        employees may have a limited defense in the
        case of defamations      broadcast  over their
        facilities.   Civ. Prac. & Rem. Code 9 73.004.




                                    d jk
                                     Very truly yo   s

                                            A;,
                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney.General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIY
Chairman, opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General




                                  p. 4815
