         .

               THE    ATTORNEY    GENERAL
                         OF TEXAS

                          July 31, 1989




Honorable Linda Shoemaker Lowrey      Opinion No.   JM-1077
Criminal District Attorney
121st Judicial District               Re:    Liability of a mu-
Yoakum County                         nicipality  for acts of
P. 0. Box 359                         employees  of a    public
Plains, Texas   79355                 health district of which
                                      the city is a      member
                                      (RQ-1555)

Dear Ms. Lowrey:

     You present the following question:

           Can the City of Denver City, a home rule
        municipality, be held liable in a damage suit
        brought   for the negligence   of the South
        Plains'Public Health District or one of its
        employees   acting on behalf of the South
        Plains Public Health District?

     Information provided with your request indicates that
the South Plains Public Health District is organized    under
V.T.C.S. article 443633, the Local Public Health Reorganiza-
tion Act. Acts 1983, 68th Leg., ch. 190, at 797 as amended.
Article IV of the Act provides     for the establishment   of
public health districts.   Section 4.01 provides:

            (a) By a majority vote of each governing
        body, a public health district may be estab-
        lished by:

             (1)   two or more counties:

             (2) two or more incorporated    municipali-
             ties:

             (3) a county and one or more incorporated
             municipalities situated therein; or




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Honorable Linda Shoemaker Lowrey - Page 2   (JM-1077)



.


           (4) two or more counties and one or more
           incorporated   municipalities    situated
           therein.

V.T.C.S. art. 4436b, 5 4.01. The information    accompanying
your request indicates that Denver City is one of several
governmental entities -- including several counties, several
other cities,  and a school district     -- comprising   the
current membership of the health district.1

     The discussion submitted with your request refers to
various provisions of the Texas Tort Claims Act, Civil Prac-
tice and Remedies Code, chapter    101, which provides    for
limited waiver of the governmental immunity of *~governmental
units" in Texas. We do not understand you to ask, however,
what sorts of conduct or conditions might       fall within
exceptions to governmental immunity and thus might    result
in liability for a responsible governmental unit. Rather we
understand your question to be: assuming conduct of health
district personnel, or conditions or use of property in its
control, which would give rise to such liability, could a
member city of the health district be held liable?

     As your discussion refers exclusively to liability un-
der the Tort Claims Act, we limit this opinion to potential
liability under that act and will not speculate as to what
other provisions of law might be held to create further ex-
ceptions to governmental immunity vis a vis the affairs of
the health district.

     We note first that the provisions in the Local Public
Health Reorganization Act regarding health districts   con-
tain no authorization  for a health district to sue or be
sued. Also, there is no authorization for such a district
to levy taxes or issue bonds.       V.T.C.S.  art.   4436b,
5s l-01-5.03.

     A health district therefore does not appear to be the
sort of l'governmental unit" contemplated by the Tort Claims
Act. The latter act provides in section 101.021 of the
Civil Practice and Remedies   Code that "governmental  units"
shall be liable for certain conduct and certain    conditions




   1. Section 4.05 provides for school districts "and other
governmental entities" becoming members of a public health
district.




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Honorable Linda Shoemaker Lowrey - Page 3 (JM-1077)




or uses of property.2  Section 101.107, regarding payment of
judgments under the Tort Claims Act by a "governmental
unit," provides  that "the governmental   unit may pay the



   2. "Governmental unit" is defined in section 101.001       of
the Tort Claims Act as:

            (A) this state and all the several agen-
        cies of government that collectively  consti-
        tute the government of this state, including
        other agencies bearing different     designa-
        tions, and all departments, bureaus, boards,
        commissions, offices, agencies, councils, and
        courts:

            (B) a political subdivision of this state,
        including any city, county, school district,
        junior college district,    levee improvement
        district, drainage district, irrigation   dis-
        trict, water improvement district, water con-
        trol and improvement district, water control
        and preservation district, freshwater   supply
        district, navigation   district,  conservation
        and reclamation   district, soil conservation
        district, communication   district and river
        authority; and

            (C) any other institution, agency, or or-
        gan of government the status and authority of
        which are derived from the Constitution    of
        Texas or from laws passed by the legislature
        under the constitution.

Section 101.021 provides   for liability   of a    "governmental
unit" as follows:

        A governmental unit   in the    state is   liable
        for:

           (1) property damage, personal injury, and
        death proximately caused by the wrongful  act
        or omission or the negligence of an employee
        acting within his scope of employment if:

              (A) the property damage, personal  in-
           jury, or death arises from the operation
                                       (Footnote Continued)




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Honorable Linda Shoemaker Lowrey - Page 4   (JM-1077)




judgments in equal annual installments   for a period of not
more than five years"   if the amount of judgments in one
year, excluding amounts payable by an insurer, "exceeds   one
percent of the unit's budaeted tax f ds" for the year,
excluding debt service.    (Emphasis add::.)    Civ. Prac. &
Rem. Code § 101.107(c).   See also County of Brazoria v.
Radtke, 566 S.W.Zd 326 (Tex. Civ. App. - Beaumont 1978, writ
ref'd n.r.e.) (a sheriff, having "no authority to levy an ad
valorem tax for the purpose of paying a judgment" is not a
"separate 'unit of government' against which suit should be
brought and recovery be allowed IIunder the Tort Claims Act).

      We find no cases or attorney general opinions  address-
ing the issue whether health districts are "units of govern-
ment" under the Tort Claims Act, but we believe that Attor-
ney General Opinion M-538   (1969), which considered  whether
community health centers established under V.T.C.S.   article
5547-203 were such "units of government," is apposite.    The
community centers were authorized to be established by con-
tract among counties, cities, and hospital and school dis-
tricts. The organizing contract was to provide for the con-
stituting of a board of trustees.   But the governing statute
did not authorize the centers to sue or be sued, or to levy
taxes  or issue bonds. The opinion concluded:

        [I]t is our view that a community center    is
        merely a component part of a 'unit of govern-
        ment' as defined  in section 2 of the Texas
        Tort Claims Act. Such a center is simply a
        local agency created either by unilateral
        action or contract by or between   designated
        local governmental bodies. It is our opinion
        that the legal effect of the Texas Tort
        Claims Act is not to impose direct  liability


(Footnote Continued)
           or use of a motor-driven vehicle or motor-
           driven equipment; and

              (B) the employee would be personally
           liable to the claimant according to Texas
           law: and

            (2) personal injury and death so caused by
        a condition or use of tangible personal     or
        real property if the governmental unit would,
        were it a private person, be liable to the
        claimant according to Texas law.




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Honorable Linda Shoemaker Lowrey - Page 5   (JM-1077)




        upon such an agency as such, but rather that
        any tortious   conduct attributable   to   an
        employee, officer or agent of a community
        center would be     the responsibility    and
        liability of the creating local governmental
        unit or units.

Attorney General Opinion M-538 (1969) at 3-4.       See also
Attorney General Opinions H-291 (1974); H-735 (1975)?

     Similarly, as previously    stated, public health   dis-
tricts created under V.T.C.S. article 443613 are not author-
ized to sue or be sued or to levy taxes or issue bonds. The
member cities, counties, etc., of a health district       are
authorized to provide by cooperative      agreement  for the
organization and operation of the health district -- includ-
ing payment of costs by the members "necessary for implemen-
tation of the public health district" -- the creation of an
administrative or advisory   "public health board," and the
appointment of a director of the district.   V.T.C.S. article
4436b, 55 4.03, 4.06. A district is authorized "to perform
the public health   functions that any of its members      is
authorized to perform unless otherwise restricted by law."
V.T.C.S. art. 4436b, § 4.02.     The public health board   is
authorized to adopt rules necessary and appropriate "to pro-
mote and preserve the health and safety of the public,"   but
the rules may not conflict with state law or with ordinances
of member cities or counties. V.T.C.S. art. 4436b, § 4.03.

     We do not believe a public health district is a govern-
mental unit under the provisions of the Tort Claims Act, or
that it has a legal status independent of its members   such
that the latter would be insulated from liability    arising
from conduct of the district's personnel or the condition or
use of its property under the Tort Claims Act. Civ. Prac. &
Rem. Code 5 101.001.

     It is our opinion that a member city of a health dis-
trict could be held liable for conduct of health district
personnel or conditions or use of its property which would
be grounds for liability under the Tort Claims Act.




   3. In 1979, the legislature   added a subsection  3.01(c)
to V.T.C.S. article  5547-203 to provide specifically   that
community health centers were units of government under the
Tort Claims Act. Acts 1979, 66th Leg., ch. 797, at 2028.




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Honorable Linda Shoemaker Lowrey - Page 6    (JM-1077)




                       SUMMARY
           A member city of a public health district
        created under V.T.C.S. article 4436b could be
        held liable under the Tort Claims Act, Civil
        Practice and Remedies  Code chapter 101, for
        conduct of health district personnel or for
        the condition or use of property under the
        control of the health district.




                                   J-hVery truly yo



                                      JIM
                                             .


                                              MATTOX
                                                         ,




                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEARLEY
Special .Assistant Attorney General

RICK GILPIN
Chairman, opinion Committee

Prepared by William Walker
Assistant Attorney General




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