DAN MORALES 

ATTORNEY GENERAL 

QBffice of the Plttornep @enetA 

&ate of iICexa$ 

July 16,1996 

The Honorable David Counts 

Chair 

Committee on Natural Resources 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-402 

Re: Whether the Charitable Immunity 

and Liability Act of 1987, Civil Practices 

and Remedies Code chapter 84, applies to a 

resource conservation and development 

council established under 16 U.S.C. chapter 

54, subchapter v (RQ-881) 

Dear Repesentative Counts: 

The Charitable Immunity and Liability Act of 1987 (the act)’ generally deems a 

charitable organization’s officers and volunteers immune Tom civil liabiity for actions 

taken in the scope of official or.vohmteer duties. A charitable organization includes a 

nonprofit, tax-exempt organization that exclusively performs charitable services or 

promotes social welfare. A resource conservation and development council, which some 

rural communities have created under federal law, must devise a plan to conserve land, 

develop natural resources, and enhance area living conditions. You a& whether a 

resource conservation and development council is a charitable organization under the act 

You state that a resource conservation and development council “invariably” is a 

nonprofit organization that is exempt from federal taxes under section 501(c)(3) of the 

I&anal Revenue Code of 1986.2 You also indicate that a rural community creates a 

resource conservation and development council to provide resource conservation facilities 

and services. Indeed, under the relevant federal law, 16 U.S.C. chapter 54, subchapter V, 

a rural resource conservation and development council is eligible for federal funds only if 

it conceives and implements an arca plan to “to conserve and improve the use of land, 

develop natural resources, and improve and enhance the social, economic, and 

environmental conditions in rural areas of the United Statea’u An area plan must include 

at least one or more of four elements: 

(A) a land conservation element, the purpose of which shall bc 

to control erosion and sedimentation; 

‘Civ. Prac. & Rem. Code ch. 84. 

226 U.S.C. 

‘I6 U.S.C. B 3453; see also id. 8 3456(a)(Z). 
The Honorable David Counts - Page 2 @M-402) 

@) a water management element, the purpose of which shall be 

to provide for the conservation, utilization, and quality of water . ; 

(C) a community development element, the purpose of which 

shall be the development of natural resources based industries, 

protection of rural industries from natural resource hazards, 

development of aquaculture, development of adequate rural water 

and waste disposal systems, improvement of recreation facilities, 

improvement in the quality of rural housing, provision of adequate 

health and education facilities, and satisfaction of essential 

transportation and communication needs; or 

(D) other elements, the purpose of which may include energy 

conservation or protection of agricultural land, as appropriate, from 

conversion to other uses, or protection of fish and wildlife habitats.4 

poornote added.] 

We consider first whether a resource conservation and development council is a 

charitable organization for purposes of the act. If a council is a charitable organization, a 

council officer, director, or trustee generally is immune from civil liabiity for any act or 

omission, done in the scope of the officer’s duties, that results in death, damage, or 

injuqcs The act grants a similar immunity to any direct service volunteer of a charitable 

organization if the volunteer acts in good faith and in the course and scope of his or her 

duties or fhnctions within the organization.6 

An organization’s stams as charitable under the act depends largely upon the 

purpose the organization serves. For example, a nonprofit corporation exempt f?om 

federal income tax and listed as exempt under 26 U.S.C. $501(c)(3) is a charitable 

organization if it is organized and operated exclusively “for charitable, religious, 

prevention of cruelty to children or animals, youth sports and youth recreational, or 

educational purposes, . _ . , or is 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.~ Of the listed purposes, we believe a resource 

'Id. 83452(l). 

5Civ.FVac.&Rem.~ $84.OM(a);see also id. pg 84.004(c),.007(exceptions). Seegenerolly 

Attorney General Opiion M-1257 (1990) at l-2. 

WV. FTac. & Rem. cnde 5 84.004@). The act liits employee aud organimtiorlal liabilily to 

moneydmageaina maximumamnunt. Id~~84.004-.006. Theselimitationsonliiitya~. available 

only to a charitable orgaaizatioa that carries liability insurance inspedfiedamoums. Id. g84.007(& 

'Id. 5 84.003(1)(A). A charitable organization also includes a homeownen -0% as 

defined by 26 USC. 8 528(c), aad an orgaaization, not exempt from federal income tax or Iii as 

exempt under 26 U.S.C. 8 501(c)(3), (4). that serves boas fide charitable. religious, or educational 

puposes; that seeks to prevent cruelty to children or animals or to promote. youth sports or youth 

-tiom, or that operates exclusively to promote social welfare by promoting the common good and 

p. 2207 
The Honorable David Counts - Page 3 (DM-402) 

conservation and development council is most likely to serve charitable purposes or to 

promote social welfare. 

The act does not define “charitable purposes” or “the promotion of social welfare.” 

Section 2(2)@) of the Charitable RatYe Enabling Act,* however, defines “charitable 

purpose” as “initiating, performing, or fostering worthy public works in this state.” The 

legislature’s definition of a term in one act does not necessarily dictate the term’s meaning 

in another act9 Nevertheless, this office has stated that article 179fs definition of 

charitable purpose “closely tracks” the definition courts use in discussing the establishment 

of charitable trust~.*~ Accordingly, we believe the definition of the term “charitable 

purposefl” in article 179f, section 2(a)(2) is helpful in defining the same term in the 

context of the act. 

Additionally, we find a definition of the promotion of social welfare in a prior 

opinion of this office, Attorney General Opinion JM-1257.1’ That opinion considers 

whether a chamber of commerce is a charitable organization for purposes of the act.12 

Generally, the opinion notes, to decide whether a particular organization is charitable 

under the act requires investigating and resolving fact questions, which this office cannot 

undertake.‘3 

In that opinion, however, this office believed it could rely upon numerous judicial 

and administrative discussions of a chamber of commerce’s purpose to determine whether 

a chamber of commerce is a charitable organization under the act.14 Thus, upon reviewing 

relevant precedent, the opinion stated that a chamber of commerce exists to promote the 

area’s general economic welfare through activities that advertise the area’s products and 

public welhe. Id. 0 84.003(1)(B), (C). Because we bzlkvc tbc issue you raise may be resohwl u&r 

sectioa 84.003(1)(A) ofthe Civil Practices and Remedia Code, WC do not discuss §ions (l)(B) aad 

(C). 

%r.T.C.S. art 179f. 

g67 TEX. JUR 3D.%tileS 8 106, at 684 (1989). 

l”Atlomey General Opinion JM-1180 (1990) at 2 (and sour& cited therein); see o&w BLACK'S 

LAW DICIWN~Y 213 (5th ed. 1979). 

llAttorney General Opinion M-1257 (1990) at 5. 

121d. at 1. 

“Id. 

141d. 

p. 2208 
The Honorable David Counts - Page 4 (DM-402) 

industries and encourage private industry and businessI An organization with this 

purpose is charitable under the act only if the organization is “‘organized and operated 

exclusively”’ to promote social welfare by primarily promoting the common good and 

generai welfare of the people in a community.r6 

Without delineating “the full range of activities that might be performed by 

organixations that are ‘organ&d and operated exclusively for the promotion of social 

welfare by. . . promoting the common good and general welfare of the people in a 

community,“’ the opinion concludes that an organixation that exclusively promotes social 

welfare is one “that provides services to individuals who are in need of them.“17 A 

chamber of commerce, the purpose of which is not to provide services to individuals who 

are in need of them, is outside the act’s detinition of charitable organixation.rs 

We now must apply the statutory purposes of a resource conservation and 

development council to our discussion of charitable purpose and the promotion of social 

welfare. We believe a resource conservation and development council may serve a 

charitable purpose and therefore may fit within the definition of charitable organization in 

section 84.003(1)(A) because a council may initiate, perform, or foster public works in the 

state.19 For example, a council may construct dams and reservoirs, develop rural water 

and waste disposal systems; improve recreation tkilities, provide health and education 

fkciiities, and satisfy transportation and communication needs. Of course, whether a 

particular resource consetvation and development council exclusively serves a charitable 

purpose is a question of fact that is inappropriate to the opinion process.2o 

We believe a resource conservation and development council also may be 

organixed and operated exclusively to promote social welfare by providing services to 

individuals who are in need of them.21 For example, a resource conservation and 

IsId. at 5; see 26 C.F.R. $ 1.501(c)(6)-1; National MuJler Dealers Ass’n Y. United Sates, 565 

F.2d 845 (2d Cir. 1977). affd, 440 U.S. 472 (1979); Kordus Y. City of Gcvlmrd, 561 S.W.2d 260 (‘kx. 

Civ. App.-Tyler 1978, writ refd n.r.e.); Attorney General Opinions JM-1199 (1990), JM-516 (1986). H397 (1974). 

16Attomey General Opiion JM-1257 (1990) at 5 (quoting Civ. F’rac. & Rem. Code 

0 84.~3mm 

“Id. at 6. 

‘81d. at 6-7. 

%hethcs a particular public works project is “worthy,” set V.T.C.S. art. 17% 5 2(a)(Z)(B), is a 

question of fact that is inappmpsiate to the opinion procss. See, e.g., Attorney General Opiions DM-98 

(1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3,0-2911(1940) at 2. 

%ee, e.g., Aaomey Geneml Opiions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3, 

D-2911 (1940) at 2. 

2’See Aitomey General Opinion JM-1257 (1990) at 6. 

p. 2209 
The Honorable David Counts - Page 5 (DM-402) 

development council may be involved in controlling erosion from agricuhural land, 

unproving the quality of rural housing, providing adequate health and education facilities, 

and satisfying essential transportation and wmmunication needs, among other things. 

Whether, of wurse., a particular resource conservation and development council 

exclusively serves the purpose of promoting social welfare is a fact question that is 

inappropriate to the opinion process.22 

Likewise, whether a particular resource conservation and development council 

exclusively serves any of the other purposes that a charitable organization may serve, for 

example, educational purposes, is a question of fact. 

SUMMARY 

The purposes of a resource conservation and development 

wuncil, established pursuant to 16 U.S.C. chapter 54, subchapter V, 

may be consistent with the purposes a charitable organization must 

serve under Cii Practice and Remedies Code section 84.003(1)(A). 

Whether, however, a particular resource wnservation and 

development council, established pursuant to 16 U.S.C. chapter 54, 

subchapter V, is a charitable organization for purposes of chapter 84 

of the Cii Practices and Remedies Code is a question of fact. 

Yours Very truly, / 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHJRLSY 

Chair, Opiion Committee 

Prepared by Kymberly K. Ohrogge 

tbsktant Attorney General 

%ee, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3, 

o-2911 (1940) at 2. 

p. 2210