January 11, 1989 

Mr. Steve Lilly Opinion No. JM-1005 

President, Board of Directors 

Angelina & Neches River Re: Whether officials and 

Authority employees of a river. auP. 0. BOX 387 thority may be represented 

Lufkin, Texas 75901 by the Attorney General in 

suits under Chaoter 104 of 

the Civil Practice and Remedies Code (RQ-1524) 

Dear Mr. Lilly: 

you ask about chapter 104 of the Civil Practice 

Remedies Code, section 104.001, which provides in part: 

In a cause of action based on conduct 

described in Section 104.UU2,1 the state 

and 

1. Section 104.002 provides: 

The State is liable for indemnification 

under this chapter only if the damages are 

based on an act or omission by the person in 

the course and scope of the person's office, 

employment, or contractual performance for 

or service on behalf of the agency, institution, or department and if: 

(1) the damages arise out of a 

cause of action for negligence, except 

a wilful or wrongful act or an act of 

gross negligence: or 

(2) the damages arise out of a 

cause of action for deprivation of a 

right, privilege, or immunity secured 

by the constitution or laws of this 

state or the United States! except when 

the court in its judgment or the jury 

in its verdict finds that the person 

_- - . . (Footnote continued) 

p. 5162 
Mr. Steve Lilly - Page 2 (JM-1005) 

shall indemnify the following persons for 

actual damages, court costs, and attorney's 

fees adjudged against: 

(1) an employee, a member of the governing board, or any other officer of a state 

aaencv. institution. or deDa*ment; 

(2) a former employee, former member of 

the governing board, or any other former 

officer of a state aaencv. institution. 01: 

denartment; who was an employee or officer 

when the act or omission on which the 

are based occurred: 

damages 

. . . . 

(5) the estate of a person listed 

section. (Emphasis added.) 

Subsection (a) of section 104.004 provides: 

in this 

(a) The attorney general shall defend 

a public servant or estate listed in Section 

104.001 jn a cause of action covered by this 

chapter. 

As President of the Board of Directors of the Angelina 

Neches River Authority (ANRA) you ask: 

Will the Attorney General defend an individual, or the estate of an individual who is, or 

was, an employee or a member of the governing 

board of ANRA for an action described in 

Section 104.002 of the Code? 

The focus of your inquiry, as indicated in your request, is whether ANRA is a "state agency, institution, or 

department" within the meaning of section 104.001. Should 

we find that ANRA is a "state agency, institution, or 

department" within the meaning of section 104.001, we would 

of course have to conclude not only that the attorney 

(Footnote Continued) 

acted in bad faith, with conscious 

indifference or reckless disregard; or 

(3) indemnification is in the interest of the state as determined by 

the attorney general or his designee. 

p. 5163 
Mr. Steve Lilly - Page 3 (JM-1005) 

general has a duty to represent ANRA employees and officers 

under section 104.004, but also that ~the state might be 

liable for the indemnification of such employees and officers under section 104.001. 

ANRA was created in 1935 as the "Sabine-Neches Conservation and Reclamation District" under article XVI, section 

59, of the Texas Constitution. Acts 1935, 44th Leg., ch. 

97, at 237. The creating act was amended in 1939 and 1945. 

Acts 1939, 46th Leg., ch. 8, at 1080; Acts 1945, 49th Leg., 

ch. 287, at 456. The name of the authority was changed to 

Angelina and Neches~River Authority in 1977. Acts 1977, 

65th Leg., ch. 394, at 1079. 

you note that, while "state agency, institution, or 

departmentH is not defined for purposes of chapter 104, 

"state agency" is defined in the Texas Sunset Act, chapter 

325 of the Government Code, to include certain river authorities. Govgt. Code §§ 325.002, 325.023. 

River authorities have been held to be state boards or 

agencies under article XVI, section 30a, of the Texas 

Constitution which provides that members of certain boards 

may hold office for terms of six years. The provisions of 

section 30a for six year terms make an exception to the 

general restriction to two year terms for public officers 

under article XVI, section 30. 

It had been held in fl 

State, 173 S.W. 525 (Tex. Civ. App. - Saz AntonTo 1915, Wrii 

ref'd) that the boards, and members thereof, referred to in 

section 30a, were "state boards" and "state officers," and 

did not include a board of trustees of an independent school 

district. In &ower Colorado River Auth . V. ccraw, 83 

S.W.2d 629 (Tex. 1935)' a mandamus proceeding against the 

attorney general to compel him to approve a bond issuance of 

a river authority, it was objected that the act creating the 

river authority was unconstitutional because it provided for 

six year for members of the authority's board of 

directors. 

terms 

Finding section 30a the only possible constitutional authorization for such six year terms, and following 

the conclusion of San Antonj&Ql@eD. School Dist, 

30a referred to "state boards," the' 

swxar 

that section supreme 

court held that the provision for the six year directors' 

terms was constitutional under section 30a. 

This conclusion was followed in J.awer Neches Valley 

Auth. v. Mann, 167 S.W.2d 1011 (Tex. 1943), another mandamus 

proceeding to compel the attorney general to appeal a bond 

issuance of a conservation and reclamation district, where 

the objection to the six year terms of the authority's directors was raised. 

p. 5164 
Mr. Steve Lilly - Page 4 (JM-1005) 

Attorney General Opinion M-822 (1971) considered whether various river authorities and other water districts which 

had entered into a water pollution control compact constituted a "state agency" for purposes of a federal program 

wherein increased federal grants were to be made available 

for pollution control projects certified by the state or an 

agency of the state. The opinion concluded that the signatories of the water pollution control compact constituted a 

"state agency" for purposes of the requirements of the federal program. 

Attorney General Opinion H-297 (1974) considered the 

provisions of former V.T.C.S. article 6252-9c, now chapter 

305 of the Government Code, requiring registration by certain persons who sought to influence legislative action 

through lobbying activities. Those provisions exempted 

mter alia a member of the "executive branch" from the 

registration requirement, "member of the executive branch" 

being defined for purposes of the act as "an officer, 

officer-elect, candidate for, or employee of any state 

agency, department, or office in the executive branch of 

state government." m Acts 1985, ch. 479, 5 1, at 1652, 

1666. Acknowledging that "in other contexts 'state agency' 

may be limited to those agencies exercising power state- 

-wide," the opinion concluded that for purposes of the lobby 

law under consideration, a river authority was a state 

agency, and its general manager was exempt from the registration requirement. 

Other opinions'of this office have, however, concluded 

that river authorities were not state agencies within the 

meaning of particular statutory provisions. 

Attorney General Opinion V-569 (1948) ruled that none 

of various river authorities and other article XVI, section 

59, conservation and reclamation districts -- including the 

Sabine-Neches Conservation District, the predecessor of ANRA 

-- was a "department, commission, institution or agency of 

the State Government" under the Employees' Retirement Act, 

and that their employees were thus ineligible for membership 

in the Employees‘ Retirement System. The opinion acknowledged that such districts had been held to be state agencies 

and their employees state employees "for certain purposes,00 

citing Lower Colorado River Auth. v. NcCraw, suora. However, the opinion concluded: 

[W]e believe that construing the Act as a 

whole, this and similar agencies and their 

employees were not intended to be covered by 

the Retirement Act for the reasons that the 

50th Legislature contemplated only those 

'employees of the State' whose duties relate 

P. 5165 
Mr. Steve Lilly - Page 5 (JM-1005 ,) 

to state-wide activities with no intervening 

corporate entity or body between the State 

and the employee. In the case of conservation and reclamation districts the district 

is the employer much the same as counties are 

the employers of its [sic] employees and have 

control of their duties. The district 

controls the working hours of its employees 

and is responsible for the compensation due 

its employees. 

Attorney General Opinion V-569 (1948) at 5. 

Attorney General ~Opinion W-202 (1957) addressed the 

question whether river authorities were state agencies 

within the meaning of section 3(b) of former article 6252-9, 

V.T.C.S. which provided:. 

If an officer or employee of a state 

agency, legislator or legislative employee is 

an officer, agent, or member of, or owns a 

controlling interest in any corporation, 

firm, partnership, or other business entity 

which is under the jurisdiction of any state 

regulatory agency he shall file a sworn 

statement with the Secretary of State disclosing such interest. 

Section 2(a) of the Act defined "state agencyH as "any 

office, department, commission or board of the executive 

department of government." 

The opinion concluded that: 

[T]he statute is intended to regulate 

State officials and employees as distinguished from local governmental officials and 

employees. This construction excludes 

governmental officers and employees of 

subdivisions of the State, such as counties 

and cities, and other strictly municipal 

corporations whose operations and jurisdiction pertain only to a particular locale 

within the State. 

. . . . 

By the express terms of Article XVI, Section 59, such River Authorities 'shall be 

governmental agencies and tidies oolitic a d 

cornorate. . . .' They are all limited ?n 

their area of operation to a particular 

p. 5166 
Mr. Steve Lilly - Page 6 (JM-1005) 

locale within the State by the respective 

enabling statutes. The enabling statutes 

vary considerably, but it may be said that 

River Authorities incorporated pursuant to 

Article XVI, Section 59 of the Constitution, 

are quasi municipal corporations. - * 

. . 

Fresh Water SUDD~V Dlstrlct No. 2 V. a?m 

135 Tex. 280, 142 S.W.Zd 945 (1940). (Empha: 

sis in opinion.) 

. . . . 

The Lower Colorado River Authority and 

similar River Authorities, which are quasi 

municipal corporations and political subdivisions of the State, are not among those 

governmental agencies which were intended to 

be regulated by [the Act]. 

Attorney General Opinion WW-202 (1957) at 3. 

In support of its conclusion, the opinion cited Willacy 

Countv Water Control and Imorovement Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936 (1944) where the Supreme 

Court had stated: 

Irrigation districts, navigation districts, levee and improvement districts, and 

like political subdivisions created under 

Section 59a of Article XVI of the Constitution, and statutes enacted thereunder carrying out the purposes of such constitutional 

provision, are not classed with municipal 

corporations, but art held to be. ~olw 

. . Subdivisions of the S ate. oerformina aovernmental functions. and standina uoon the su 

f otina as counties and other 

&divisions established bv law. 

nolitical 

(Emphasis 

in opinion.) 

See also Attorney General Opinion M-522 (1969) 

ing that a&le XVI, 

(statsection 59, districts "are political 

subdivisions of the state . . . standing upon the same 

footing as counties and other political subdivisions established by law"). 

Attorney General Opinion H-10 (1973) addressed the 

question whether a state employee may also serve as director 

of a rivers authority in light of the provisions of article 

WI' section 40, of the Texas Constitution which generally 

prohibits dual office holding but which states in part: 

p. 5167 
Mr. Steve Lilly - Page 7 (JM-1005) 

State employees . . .'who are not State 

officers, shall not be barred from serving as 

members of the governing bodies of school 

districts, cities, towns, or other local 

governmental districts . . . 

The opinion concluded that the river authority was a 'local 

governmental district# under the constitutional provision, 

and that a state employee was thus not barred from serving 

at the same time as director of the authority. 

Attorney General Opinion JR-197 (1984) did not consider 

river authorities or other article XVI, section 59,. districts, but rather the question whether county attorneys 

were "officers or employees of any agency, institution, or 

department of state government" under former article 

6252-26, V.T.C.S. (The provisions of article 6252-2.6 were 

repealed in 1985 by the legislation enacting .the Civil 

Practice and Remedies Code, in which the former article 

6252-26 provisions were codified as chapter 104, .the 

chapter under consideration herein. Acts 1905, 69th Leg., 

ch. 959, at 3242, 3300.) 

The opinion concluded that "article 6252-26 was meant 

to apply only to officers and employees of state agencies, 

institutions and departments having state-wide jurisdiction" 

and thus did not apply to county attorneys, who were covered 

~rather by former article 6252-19b, now chapter 102 of the 

Civil Practice and Remedies Code. 

Chapter 102 of the Civil Practice and Remedies Code 

makes provisions similar to those in chapter 104, but 

applies to conduct of employees and officers of a "local 

government," while chapter 104 applies to conduct of employees and officers of a "state agency, institution, or department." Section 102.002 provides in part: 

(a) A local government may pay actual 

damages awarded against an employee of the 

local government if the damages: 

(1) result from an act or omission of 

the employee in the course and scope of his 

employment for the local government: and 

(2) arise from a cause of action for 

negligence. 

Section 102.001 defines "local government" as "a county, 

city, town, special purpose district, and any other political subdivision of the state." Section 102.004 authorizes 

the local government, not the attorney general, to provide 

p. 5168 
Mr. Steve Lilly - Page 8 (JM-1005) 

legal counsel in suits under chapter 102. Attorney General 

Opinion JR-197, m, concluded that the provisions of what 

are now chapters 102 and 104 respectively, are to be read Ir! 

pari materia and "are not intended to, and do not, cover the 

same officers and employees.H 

The provisions of chapter 101 of the Civil Practice and 

Remedies Code, the Texas Tort Claims Act formerly V.T.C.S. 

art. 6252-19, also appear to stand in oari materiq with 

those of chapters 102 and 104. Section 101.021 provides: 

A governmental unit 

for: 

in the state is liable 

Section 

(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 oft employment 

if: 

(A) the property damage, personal 

injury, or death arises from the operation 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. 

lOl.,OOl, subsection (2) defines ~lgovernmental unit" 

as: 

(A) this state and all the several 

agencies of government that collectively 

constitute the government, of this state, 

including other agencies bearing different 

designations, and all departments, bureaus, 

boards, commissions, offices, agencies, 

councils, and courts: 

. (B) a oolitical subdivision of this 

tate. &pcludina any city, 

iistrict 

county, school 

, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, 

p. 5169 
Mr. Steve Lilly - Page 9 (JM-1005) 

water control 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 

('3 any other institution, agency, 

or organ 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. 

phasis added.)2 

(EmIn the light of the authorities and statutory provisions discussed above, we conclude that ANRA is not a "state 

agency, institution or department" under section 104.001. 

The provisions of chapters 101 and 102, standing in oari 

materia with those of chapter 104, indicate that river 

authorities are "political subdivisions11 of the state, or 

"units of local government," and not state agencies for 

purposes of chapters 101, 102, and 104. They are not "state 

agencies, institutions or departments" under chapter 104. 

2. Section 101.103 provides for legal representation in 

suits under chapter 101 as follows: 

(a) The attorney general shall defend 

each action brought under this chapter 

against a governmental unit that has authority and jurisdiction coextensive with the 

geographical limits of this state. The 

attorney general may be fully assisted by 

counsel provided by an insurance carrier. 

(b) A governmental unit having an area of 

jurisdiction smaller than the entire state 

shall employ its own counsel according to the 

organic act under which the unit operates, 

unless the governmental unit has relinquished 

to an insurance carrier the right to defend 

against the claim. 

You do not ask about and we do not address the scope of 

these provisions with respect to their coverage of river 

authorities or other governmental units. 

p. 5170 
Mr. Steve Lilly - Page 10 (JM-1005) 

We do not think that the inclusion of river authorities 

as nstate agencies" under the Sunset Act -- to which you 

referred in your request -- is dispositive. Compare, for 

example, section 402.042 of the Government Code which 

specifies that inter alia "the head of a department of state 

government," "the head of a state board,' and "the chairman 

of the governing board of a river authority" may request 

attorney general opinions. The statute's separate reference 

to chairmen of the governing boards of river authorities 

indicates that such persons were not considered by the 

legislature which enacted the provision to be included in 

the categories of heads of departments of state government 

or heads of state boards. 

We think that the ruling in Attorney General opinion 

V-569 (1948)' that conservation and reclamation districts 

such as river authorities are employers standing in much the 

same relationship to their employees as counties to theirs, 

and having responsibility for their duties, working hours 

and compensations, indicates that a river authority and not 

the state should be responsible for the conduct of such an 

employee which is the basis for an award of damages against 

the employee. Chapter 102 rather than chapter 104 of the 

Civil Practice and Remedies Code thus governs a river 

authority's responsibility for such conduct of the river 

authority's employees and officers, including the provision 

of legal representation to such persons. 

The Angelina-Neches River Authority his not 

a "state agency, institution, or departmentI 

within the meaning of section 104.001 of the 

Civil Practice and Remedies Code. Thus 

section 104.004 of that code, providing for 

representation by the attorney general in 

causes of action for certain conduct of 

officers and employees of a "state agency, 

institution, or department" under chapter 104 

does not apply to the Angelina-Neches River 

Authority or to its officers or employees. Very tuly Y , 

L-l A’, /tciLc 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

p..5171 
, 

Mr. Steve Lilly - Page 11 (JM-1005) 

. 

Lou MC-Y 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 5172