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 ofRepresentatives 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 16U.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, 16U.S.C. chapter 54, subchapter V, arural 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 ofthe 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. 226U.S.C.

‘I6 U.S.C. B3453; see also id. 83456(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 alsoid. pg84.004(c),.007(exceptions). Seegenerolly Attorney GeneralOpiion M-1257 (1990) atl-2. WV. FTac.

&Rem.cnde 584.004@). Theactliits employee

audorganimtiorlalliabililyto moneydmageaina maximumamnunt. Id~~84.004-.006.

Theselimitationsonliiitya~. available onlytoacharitable

orgaaizatioa

thatcarries

liabilityinsurance

inspedfiedamoums.

Id. g84.007(& 'Id. 5 84.003(1)(A). A charitableorganizationalso includesa homeownen-0% as defined by26USC. 8528(c),aad an orgaaization,notexemptfromfederalincometax or Iii as exemptunder 26 U.S.C.8501(c)(3),(4). that servesboas fide charitable.religious,or educational puposes; that seeksto preventcrueltyto childrenor animalsor to promote. youth sportsor youth -tiom, orthat operatesexclusively to promotesocialwelfarebypromotingthe commongoodand

p. 2207The 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 ofthe 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.

084.003(1)(B), (C). Because we bzlkvc tbc issue you raise may be resohwl u&r sectioa 84.003(1)(A) ofthe Civil Practicesand Remedia Code, WC do not discuss §ions (l)(B) aad (C). %r.T.C.S.art 179f. g67 TEX.JUR3D.%tileS 8 106, at684 (1989). l”Atlomey General Opinion JM-1180 (1990) at 2 (and sour& cited therein); see o&wBLACK'S LAW DICIWN~Y 213 (5th ed. 1979). llAttorney GeneralOpinion M-1257 (1990) at5. 121d. at 1. “Id. 141d.

p. 2208The 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 ofthe 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 ofthem, 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 26C.F.R. $ 1.501(c)(6)-1; National MuJler Dealers Ass’n Y. United Sates, 565 F.2d 845 (2d Cir. 1977). affd, 440U.S. 472 (1979); Kordus Y. City of Gcvlmrd,

561 S.W.2d 260 (‘kx. Civ.App.-Tyler 1978, writrefd n.r.e.); Attorney GeneralOpinions JM-1199 (1990), JM-516 (1986). H397 (1974). 16Attomey General Opiion JM-1257 (1990) at 5 (quoting Civ. F’rac. & Rem. Code 084.~3mm “Id. at6. ‘81d. at 6-7. %hethcs aparticular

public works project is“worthy,”

set V.T.C.S. art. 17% 5 2(a)(Z)(B), is a question offactthat is inappmpsiate to the opinion procss. See, e.g., Attorney General Opiions DM-98 (1992) at3, H-56 (1973) at 3, M-187 (1968) at3,0-2911(1940) at2. %ee, e.g., Aaomey Geneml Opiions DM-98 (1992) at3, H-56 (1973) at 3, M-187 (1968) at 3, D-2911 (1940) at2.

2’See Aitomey GeneralOpinion JM-1257 (1990) at6.

p. 2209The 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 16U.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 16U.S.C. chapter 54, subchapter V, is a charitable organization for purposes of chapter 84 ofthe Cii Practices and Remedies Code is a question of fact. Yours Verytruly, /

DAN MORALES Attorney General ofTexas 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) at3, H-56 (1973) at 3, M-187 (1968) at 3, o-2911 (1940) at2.

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