                              @ffice      of tfje Rlttornep         QBeneraI
                                            Qtate     of ZEexae
DAN MORALES
 ATTORNEY
      CENERAL                                November 26,199l

   Mr. William Treaty                                      Opinion No. DM-457
   Executive Director
   Texas State Board of Public Accountancy                 Re: Whether state indemnification and defense
   333 Guadalupe, Tower III, Suite 900                     in certain legal actions pursuant to chapter 104
   Austin, Texas 78701-3900                                of the Civil Practice and Remedies Code is
                                                           available to a volunteer performing services for
   Mr. Wayne Scott                                         a state agency (RQ-905)
   Executive Director
   Texas Department of Criminal Justice
   P.O. Box 99
   Huntsville, Texas 77342-0099


   Dear Gentlemen:

           Civil Practice and Remedies Code section 104.001 requires the state to indemnify those
   individuals listed in that section for damages, court costs, and attorney fees if the damages are
   premised on an act or omission that occurred during the individual’s service to the state. Section
   104.004 requires the state to defend those same individuals. Section 104.001 does not list
   volunteers. You both ask whether the state must indemnify and defend a volunteer’ who provides
   services for your agency if a civil action is brought against him or her for an action performed in the
   course and scope of the voluntary services? The Department of criminal Justice inquires generally
   about volunteers who provide services for it,3 while the Board of Public Accountancy asks about its
   constructive enforcement volunteers, who assist the board with investigations. Because vohmteers
   are not among those individuals listed in section 104.001, we conclude that they are not entitled to
   indemnification from and legal representation by the state.



           ‘SeeGov’tCode5 2109.004(a)(listingreqtdmments
                                                      to which stateagenciesthatwish to establisha volunteer
   progl-anlmustadhere).

            ‘AttorneyGeneralOpinionDM-173 (1992) concludesthatsection 101.063 of the HumanResourcesCode
   accorded inummity from liability to volunteerombudsmen in the Texas Depqent of Aging long-term care
   ombudsmanprogramfor the good-faithperformanceof theirfi~~c.tions   as volunteers,and AttorneyGeneralOpinion
   DM-206 (1993) concludesthatthis statutealso appliedto internsin the volunteerombudsmanprognun ‘Il~esetwo
   opinionsaddressa specificpmvisii of the HumanResourcesCodeadoptedto complywith a federalrequirement,and
   they do not addresstbe questionof immunityfor volunteersin general.

           ‘See Gov’tCode.5 501.009 (requiringDepartmentof CriminalJusticeto encouragevolunteerorganizations
   to providevariousprogramsfor inmates).
Mr. William Treaty - Page 2                         (DM-457)
Mr. Wayne Scott



        The executive diitor    of the State Board of Public Accountsncy also asks whether a
constructive enforcement vohmteer may claim an absolute or quahtied privilege if the volunteer is
sued for defamation for his or her official work. We conclude that, in appropriate circumstances,
the volunteer may claim one or the other.

        We will consider first your questions about the extent of Civil Practice and Remedies Code
chapter 104. Section 104.001 of that chapter requires the state to indemnify certain individuals for
damages, court costs, and attorney fees:

               In a cause of action based on conduct described in Section 104.002, the
           state shall indemnify the following persons, without regard to whether the
           persons perfoned their services for compensation, for actual damages, court
           costs, and attorney’s fees adjudged against:

                    (1) an employee, a member of the goveming board, or any other
            officer of a state agency, institution, or department;

                    (2) a former employee, former member of the governing board, or any
            other former officer of a state agency, institution, or department who was an
            employee or officer when the act or omission, . . occurred,

                    (3) a physician or psychiatrist . . . who was performing services under
            a contract with any state agency, institution, or department or a racing official
            performing services under a contract with the Texas Pacing Commission
            when the act or omission. . . occurred;

                    (4) a person serving on the governing board of a foundation,
            corporation, or association at the request and on behalf of an institution of
            higher education, . . . , not including a public junior college;

                    (5) a state contractor who signed a waste manifest as required by a
            state contract; or

                    (6) the estate of a person listed in this section. [Emphasis added.]

Section 104.002 limits indemnification to damages based on sn action or omission committed in the
course of the individual’s service to the state, with certain qualifications irrelevant here4 Any public



        ‘An appropriationto pay a claim underCivil Practiceand RemediesCode chapter 104 is to be made hm
otherwiseunappropriatedamountsin a specialfundor an accountthatmaybe appropriated to the aff&ed stateagency,
totheextentIhattends             Id.$5109.002(b),,003, ,007 (exceptingcertainclaimshm chapter109). If funds
                     areavailable.
areunavailable,the appropriation
                               may be made fromthe generalrevenuefund. Id.$109.003.       Thecomptrollerwill
                                                                                               (continued...)


                                                    p. 2557
Mr. William Treaty - Page 3                           (DM-457)
Mr. Wayne Scott



s-t     who is entitled to indemnification under sections 104.001 and 104.002 similarly is entitled
to be defended by the attorney general?

        To conclude that a volunteer is entitled to indemnification under section 104.001, we must
interpret the section in one of two ways: either the list of positions numbered (1) through (6) is
exemplary and not exclusive, or one of the listed positions includes volunteers. Because you ask
about vohmteers whose service fits under none of the listed categories except perhaps employee, we
will consider only whether the term “employee” in section 104.001( 1) enwmpasses volunteers6 We
believe the section’s plain language precludes either conclusion. Because we find the language clear,
we need not rely on legislative history to determine what the legislature intended the section to
mean.’

         We first conclude that section 104.001 provides indemnification to only those individuals
explicitly listed. A statute that creates an entitlement and designates the individuals who may claim
the entitlement should be wnstrued restrictively to infer that any individual not expressly described
is excluded* unless the statute clearly states the wntrary.9 Section 104.001 contains no language
clearly stating the contrary, nor does it imply that the class of positions entitled to indemnification
is broader than those positions specifically listed. The section does not, for example, require the
state to indemnity those public servants including those listed. Similarly, the section does not
suggest that the listed positions are described as an example. Nor does the list establish a seventh,
open-ended category indemnifying, for example, any otherpublic servant.

         Second, we do not believe the term %mployee” includes volunteers, even though the section
refers to individuals who are not compensated for their service to the state. This office refused in


        ‘(...wtltiilued)
reducethe appmpdion forthe stateagencyin s.nsmountnot to exwed $S,ooOperclaii or five percentof the agency’s
appmpriationfor thatf=cal yearfor all claims. Id 5 109.004.

        'Id.
           5 104.004(a).

         6Wedo not considerin this opinionwhethers stateemployeeis entitledto indemnificationand representstion
for an act 01 omission committedin the courseof volunteerwork.

        ‘SeeBoykinv. St&e,818 S.W.Zd782,785-86 a.4 (Tex. Grim.App. 1991)(explainingthat,despiteGovemmnt
Code’sinvitationto extie   legislativehistoryregardlessof statute’sclarity,courtgenerallyshoulddecline to do so
wherelanguageof statutein questionis unambiguous);Lumbermen's   Undenwiterr         Bd ofIns., 502S.W.Zd217,
                                                                              v.State
219 (Tex. Civ. App.--Austin1973, writ refd n&e.) (citing 53 TEX.JUR.2~ Statutes$ 125, at 182 11.17)(statingthat,
when leg&law plainlyhas expressedits intentin statute’slanguage,intentmustbe effectuatedwithoutattemptingto
conshue or interpretlaw).

       'SeeBidelspach
                    v.State,840S.W.2d516,518 (Tex. App.-Dallas 1992). writdism'd,
                                                                               850S.W.Zd183 (Tex.
Grim.App. 1993) @a cwiam); ~ANORMAN  J. SINGER,
                                              STATUTES  ANDSTATUTORY    CONSTRUCTION5 47.23 (5th ed.
1992).

        ?k 2A SINGER,
                   supra note 8, g 41.23.

                                                      p. 2558
Mr. William Treaty - Page 4
                                                   (DM-457)
Mr. Wayne Scott



Attorney General Opinion DM-409 to construe Health and Safety Code section 777.007, which
requires the state to indemnify under Civil Practice and Remedies Code chapter 104 %n employee”
of a regional poison control center, to require the state to indemnity a regional-poison-control-center
vohmteer.“’ In that opinion, we distinguished an employee from a vohmteer on two bases: employer
control and an express or implied contract for compensation.” An employer has control over an
employee, but little over a volunteer. I2 In addition, an employee has an express or implied wntract
for wmpensation with the employer, while a volunteer has no such contraw” We believe the same
rationale applies here.

         Our wnstruction of section 104.001 does not render the phrase “without regard to whether
the persons performed their services for compensation” meaningless, although our conclusion
necessitates a finding that an employee cannot be uncompensated. In our opinion, the phrase refers,
at the least, to board members, officers, and former board members whom the state must indemnify.
We understand from one of the briefs we received on this issue that individuals serving as board
members and officers generally are not compensated for their services, and evidently this fact caused
confusion as to whether an individual must be compensated to be entitled to indemnification and
defense. The smendment thus rectifies this incongruity and “clearly indicates that board members
and former board members sre entitled to indemnification, . . . whether or not they perform their
services for monetary wmpensation.“r4

        Finally, with respect to your joint question, because a volunteer is not entitled to
indemnification from the state under section 104.001, a volunteer is likewise not entitled to the
attorney general’s defense under section 104.004.

        We turn now to the additional questions posed by the executive director of the State Board
of Public Accountancy regarding the board’s constructive enforcement vohmteers. Under the
board’s direction, wnstructive enforcement volunteers are asked to do various investigative tasks
including:

                     (1) on-site investigations;




        “‘Attorney
                 GeneralOpinionDM-409(1996) at 6-7.

              at 4-6.
        “Seeid.

       ‘*Seeid at 5 (citiag Haavzktola
                                     v.Community      812F. Supp. 1379, 1386(D.C. Md.), rev’don
                                               FireCo.,                                       other
ground.~,6 F.3d 211 (4th Ci. 1993)).

           at 5-6.
        “Id.

       “Letterfrom DelmarCaii GeneralCounsel,The Texas A&h4UniversitySystem,to SarakShirley,Chair,
AttorneyGerteralOpinionCommittee(Oct. 23, 1996) (on tile with the OpinionCommittee,Of&x of the Attorney
General).


                                                   p. 2559
Mr. William Treaty - Page 5                          (DM-457)
Mr. Wayne Scott



                         (a) taking photographs,

                         (b) obtaining statements;

                         (c) gathering evidence such as letterhead or business cards;

                      (2) locating witnesses;

                   (3) making telephone calls to verify compliance with the Act, the
                Rules and Board Orders;

                      (4) testifying at administrative hearings;

                      (5) reviewing contimting professional education sponsors’ courses;
                and

                      (6) carrying out other investigative tasks, as needed.

      The executive director inquires whether sn absolute privilege against a suit for defamation
would apply to its constructive enforcement volunteers. Chapter 73 of the Civil Practice and
Remedies Code defines defamation as follows:

                A libel is a defamation expressed in written or other graphic form that
            tends to blacken the memory of the de& or that tends to injure a living
            person’s reputation and thereby expose the person to public hatred,
            contempt or ridicule, or fmsncial injury or to impeach any person’s
            honesty, integrity, virtue, or reputation or to publish the natural defects
            of anyone and thereby expose the person to public hatred, ridicule, or
            financial injury. [Footnote added.]

        There is an absolute privilege for communications in the due course of a judicial proceeding
made by the judge, jurors, counsel, parties, or witnesses.t6 Such communications will not serve as
the basis of a civil action for libel or slander, regardless of the negligence or malice with which they
are made.” The privilege attaches to all aspects of the proceedings, including statements made in
open court, pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the



         ‘sRecoverymay be had for defamationof the dead only uponproof of irju$ to the reputationof the person
by or for whom the actionis brought. Renfio
                                          DrugCo.v.Lawson,     160S.W.Zd246,250 (Tex. 1942).

        ‘4/ames       631S.W.Zd914,916-17 (Tex.
               v.Brown,                       1982);
                                                  Reaganv.Guardian
                                                                 Life  Co.,166 S.W.Zd909,
                                                                    Ins.
912 (Tex. 1942).

        “Jamq 631S.W.Zdat 916-17; Reagan,
                                        166 S.W.Zdat 912.

                                                      p. 2560
Mr. William Treaty - Page 6                            (DM-457)
Mr. Wayne Scott



case.” The privilege barring defamation suits applies to proceedings before executive officers and
boards and commissions that exercise quasi-judicial powersJ9

        Also subject to the absolute privilege are out-of-court communications made by attorneys
preliminary to a judicial pmceeding or in connection therewith, if the statements relate to a judicial
proceeding in which the attorney is employed and are in lktherance of the representation?o In a suit
for damages instituted by a woman who was involuntarily hospitalized upon the application of her
son and daughter, the Texas Supreme Court held that reports by three psychiatrists to the probate
judge in the mental health proceedings were absolutely privileged?’ A letter by one of the
psychiatrists to the attorney for the plaintiffs children was also within the privilege because it was
written in contemplation of a judicial proceeding.‘2

        Accordingly, we believe that the constructive enforcement volunteers would have an absolute
privilege against a civil action for libel or slander for statements made as witnesses in a quasi-
judicial proceeding before the State Board of Public Accountancy and for communications
preliminary to a proposed proceeding in which the volunteer will testify, if the communication has
some relation to the hearing.” Whether a preliminary communication is related to the proceeding
is a question of law, to be determined by considering the entire communication in its context.”



              637S.W.2dat 916-17.
        ‘sJames,

         ‘9Reagan,  166 S.W.Zdat 912 (Boardof InsuranceCommissioners);     Putter v. Anderson,601 S.W.Zd73.76
(Tex. Civ. App.-Dallas 1980, writnf d n.r.e.)(internalaffairsdivisionof city police deparhnentwheninvestigating
citizen’scomplaintabout  policeofficer);see also Odenealv. Woffoni,668 S.W.Zd819,820 (Tex. App.-Dallas 1984,
wit ref d n.r.e.)(St&zBarGrievanceCommittee).

       ~Rtmell  v. Clark,620 S.W.M865,869 (Tex. Civ. App.-Dallas 1981,wit refd me.); see also Odeneal,    668
S.W.2dat 820 (privilegeappliesto letterwrittenby attorneywho is subjectto grievanceproceeding).The questionof
the relationshipof the defamatorymatterto a judicialproceedingis a questionof law,to be determkd by the COIUI
                                                                                                           by
consideringthe entireemmum‘cationin itscontextandextendingtheprivilegeto any statementthatbearssomerelation
to a judicial pmceediag. Russell,620S.W.Zdat 870.

              637S.W.Zdat 91617.
        “James,

              at 917. The Jamescourtdescribedthe scopeof the privilegefor matterswrittenin contemplationof a
          221d.
judicial proceeding:

               A wi!nessis absolutelyprivilegedto publishdefanmbxymatterconcerninganotherin
            communicationspreliminaryto a proposedjudicial proceedingor as a:part of a judicial
            proc&iig in whichhe is testifying,if it has somerelationto the proceeding.

Id.(quotingfrom THERESTATEMENT 2~ OFTORTS
                                        $!588 (1981)).

        “Id.

              620S.W.2dat 870.
        uRwsell,


                                                     p. 2561
Mr. William Treaty - Page 7                          (DM-457)
Mr. Wayne Scott



         You also ask whether a conditional or qualified privilege might be available to constructive
enforcement volunteers in defamation suits. This privilege applies to bona fide communications,
oral or written, made in good faith on any subject matter in which the author has an interest or with
reference to which he has a duty to perform, to another person having a corresponding interest or
duty.rr It does not change the actionable quality of the words published, but merely rebuts the
inference of malice that is imputed in the absence of privilege and makes a showing of falsity and
actual malice essential to the right of recovery.26 The communication of alleged wrongful acts to an
official authorized to protect the public from such acts is protected by a qualified privilege.27 In our
opinion, a constructive enforcement volunteer acting at the direction of the State Board of Public
Accountancy or of paid employees who supervise volunteers would have a sufficient interest in the
work of the board to invoke this privilege for communications to the board or to employees that have
a corresponding interest or duty with respect to the substance of the communication. Whether this
privilege would apply in a particular situation must be decided in light of all the facts and
circumstances.

         We wish to emphasize that the privileges we have discussed apply only to utterances that are
made the basis of a subsequent suit for libel or slander. zs An action taken by a witness may be the
basis of a civil suit on other grounds, even though it is the subject of the witness’s testimony fin a
judicial or quasi-judicial proceeding. 29 Communicating investigative fmdings to the board and
testifying at hearings are only two of many tasks that constructive enforcement volunteers might
perform for the board. Causes of action other than an action for defamation might arise out of a
volunteer’s other activities on behalf of the board?”




        %ay@ld v. Gleichert,
                         484 S.W.Zd619,625 (Tex. Civ. App.-Tyler 1972, no wit).

        ‘6rd.
           at626,

        27.Zzrafe v.Corfinm, 553S.W.Zd652,655 (Tex. Civ. App.--CorpusChristi1977, no wit) (accusationfiled
with sheriffs office accusingdeputycountyclerkof unauthorizedloan of countyequipment).

               Med.Corp.v. Miller,
        “Charter                605 S.W.Zd943,953 (Tex. Civ. App.--Dallas1980, wit ref d n.r.e.).

       *9James, 637S.W.Zdat 917-18 (defamationactioncannotbe basedon do&s communicationto ccnui of
diagmsesof plaintiffs mentalcondition,butdiagnosesthemselvesmaybe actionableon othergrounds,suchas medical
malpractice).

         ‘We. do not lmowthe Fidel
                                 extentof the servicesperformedby constructiveenfonxment volunteers,because,
as the.executive directorof the Boardof Public Accountancyinformsus, theirservice includes “carryingout other
investigativetasks,as needed.”


                                                     p. 2562
Mr. William Treaty - Page 8                      (DM-457)
Mr. Wayne Scott



                                     SUMMARY

                  A person who serves a state agency as an unwmpensated volunteer
          is not entitled to indemnification against actual damages, court costs, and
          attorney fees adjudged against him or her under the circumstances described
          in section 104.002 of the Civil Practice and Remedies Code. Likewise, a
          volunteer is not entitled to be defended by the attorney general in suits
          subject to chapter 104 of the same code.

                  Constructive enforcement volunteers who assist in investigations for
          the State Board of Public Accountancy would have an absolute privilege
          against a civil action for defamation for statements made as witnesses in a
          quasi-judicial proceeding before the board. They would have a conditional
          or qualified privilege against a defamation suit under appropriate
          circumstances. The conditional or qualified privilege applies to bona fide
          wmmunications, oral or written, made in good faith on any subject matter in
          which the author has an interest or with reference to which he has a duty to
          perform, to another person having a corresponding interest or duty. The
          absolute and conditional privileges apply only to a defamation suit and not
          to other causes of action that might arise Out of a volunteer’s activities on
          behalf of the Board of Public Acwuntancy.




                                            DAN MORALES
                                            Attorney General of Texas

JORGE VEGA
Fit Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan Garrison and Kymberly K. Ohrogge
Assistant Attorneys General




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