January 11, 1989

Mr. Steve Lilly Opinion No. JM-1005 President, Board ofDirectors Angelina &Neches River Re: Whether officials and Authority employees of ariver. auP. 0. BOX 387 thority may be represented Lufkin, Texas 75901 bythe Attorney General in suits under Chaoter 104 of the Civil Practice and Remedies Code (RQ-1524)
Dear Mr. Lilly:
you ask about chapter 104 ofthe Civil Practice Remedies Code, section 104.001, which provides inpart:

Ina cause ofaction 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 ifthe damages are based onanact oromission bythe person in the course and scope ofthe person's office, employment, or contractual performance for or service onbehalf ofthe agency, institution, ordepartment and if:

(1) the damages arise out of a cause ofaction fornegligence, except awilful orwrongful act oranact 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 theUnited States! except when the court in its judgment orthe jury in its verdict finds that the person _- - .. (Footnote continued)

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shall indemnify the following persons for actual damages, court costs, and attorney's fees adjudged against: (1) anemployee, 

### amember of the governingboard, or any other officer ofa state aaencv. institution. ordeDa*ment; (2) aformer employee, former member of the governing board, or any other former officer of astate aaencv. institution. 01: officer denartment; who was anemployee or when the act oromission onwhich the are based occurred: damages

. . . . (5) the estate ofaperson listed section. (Emphasis added.) Subsection (a)of section 104.004 provides: inthis

(a) The attorney general shall defend apublic servant orestate listed in Section 104.001 jnacause ofaction covered by this chapter.
As President ofthe Board of Directors of the Angelina Neches River Authority (ANRA) you ask:

Will the Attorney General defend an individual,

### orthe estate ofan individual who is, or was, anemployee oramember ofthe governing board of ANRA for an action described in Section 104.002 ofthe Code?
The focus of your inquiry, as indicated inyour request, iswhether ANRA is a "state agency, institution, or department" within themeaning of section 104.001. Should we find that ANRA is

### a "state agency, institution, or department" within themeaning of section 104.001, we would ofcourse have to conclude not only that the attorney

(Footnote Continued)

acted in bad faith, with conscious indifference orreckless disregard; or 

### (3) indemnificationis inthe interest of the state asdetermined by the attorney general orhis designee.

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general has aduty to represent ANRA employees and officers under section 104.004, but also that ~thestate might be liable for the indemnification of such employees and officers under section 104.001.
ANRA was created in1935 asthe "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 actwas amended in 1939 and 1945. Acts 1939, 46th Leg., ch. 8,at 1080; Acts 1945, 49th Leg., ch. 287, at 456. The name ofthe 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" isdefined 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 tobe 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 sixyears. The provisions of section 30a for six year terms make an exception to the general restriction to two year terms forpublic officers under article XVI, section 30.
Ithad been held infl State, 173 S.W. 525 (Tex. Civ. App. -SazAntonTo 1915, **Wrii** ref'd) that the boards, andmembers thereof, referred to in section 30a, were "state boards" and "state officers," and did not include aboard oftrustees ofan independent school district. In &ower Colorado River Auth. V. ccraw, 83 S.W.2d 629 (Tex. 1935)' amandamus proceeding against the attorney general to compel him toapprove abond issuance of ariver authority, itwas objected that the act creating the river authority was unconstitutional because itprovided for six year formembers of the authority's board of directors. terms

Finding section 30a the only possible constitutional authorization for such sixyear 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 sixyear directors' terms was constitutional under section 30a. This conclusion was followed inJ.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 ofaconservation and reclamation district, where the objection to the six year terms of the authority's directors was raised.

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Attorney General Opinion M-822 (1971) considered whethervarious river authorities and other water districts which had entered into a water pollution control compact constituted a "state agency" for purposes of afederal program wherein increased federal grants 

### weretobemade available for pollution control projects certified by the state or an agency of the state. The opinion concluded that the signatories of thewater pollution control compact constituted a "state agency" for purposes ofthe requirements ofthe 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 ofthe act as "an officer, officer-elect, candidate for, or employee of any state agency, department, oroffice inthe executive branch of state government." m Acts 1985, ch. 479, 51,at 1652, 1666. Acknowledging that "inother contexts 'state agency' may be limited to those agencies exercising power state- -wide," the opinion concluded that forpurposes of the lobby lawunder consideration, a river authority was a state agency, and itsgeneral 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 ofparticular statutory provisions. Attorney General Opinion V-569 (1948) ruled that none ofvarious river authorities and other article XVI, section 59, conservation and reclamation districts -- including the Sabine-Neches Conservation District, the predecessor ofANRA

--was a "department, commission, institution oragency of the State Government" under the Employees' Retirement Act, and that their employees were thus ineligible formembership inthe Employees‘ Retirement System. The opinion acknowledged that such districts had been held tobe state agencies and their employees state employees "for certain purposes,00 citing Lower Colorado River Auth. v.NcCraw, suora. However, the opinion concluded:

[W]ebelieve that construing the Act as a whole, this and similar agencies and their employees were not intended tobe covered by the Retirement Act for the reasons that the 50th Legislature contemplated only those 'employees ofthe State' whose duties relate

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### ,)

to state-wide activities with no intervening corporate entity orbody between the State and the employee. Inthe case of conservation and reclamation districts the district isthe employer much the same ascounties are the employers of its [sic] employees and have control of their duties. The district controls theworking hours of its employees and isresponsible 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 themeaning of section 3(b) of former article 6252-9, V.T.C.S. which provided:.

Ifan officer or employee of a state agency, legislator or legislative employee is anofficer, agent, ormember of, orowns a controlling interest in any corporation, firm, partnership, or other business entity which isunder the jurisdiction ofany 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 ofgovernment."
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 ofthe State, such as counties and cities, and other strictly municipal corporations whose operations and jurisdiction pertain only to a particular locale within the State.

. . . . Bythe express terms ofArticle XVI, Section 59, such River Authorities 'shall be governmental agencies and tidies oolitic ad cornorate. . . .' They are all limited ?n their area of operation to a particular

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locale within the State by the respective enabling statutes. The enabling statutes vary considerably, but itmay be said that River Authorities incorporated pursuant to Article XVI, Section 59ofthe 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 inopinion.)

. . . . 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 [theAct]. Attorney General Opinion WW-202 (1957) at 3.
In support of its conclusion, the opinion cited Willacy Countv Water Control and Imorovement Dist. No. 1v. 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 ofArticle XVI ofthe Constitution, and statutes enacted thereunder carrying out the purposes of such constitutional provision, are not classed with municipal corporations, but artheld tobe. ~olw

. . Subdivisions ofthe Sate. oerformina aovernmental functions. and standina uoon the su fotina as counties and other &divisions established bv law. nolitical (Emphasis inopinion.)
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 astate employee may also serve asdirector ofariversauthority in light of the provisions of article WI' section 40, of the Texas Constitution which generally prohibits dual office holding but which states inpart:

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State employees . . .'who are not State officers, shall notbebarred 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 astate employee was thus not barred from serving atthe same time asdirector ofthe authority. Attorney General Opinion JR-197 (1984) did not consider river authorities orother article XVI, section 59,. districts, but rather the question whether county attorneys were "officers oremployees ofany agency, institution, or department of state government" under former article 6252-26, V.T.C.S. (Theprovisions ofarticle 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 toapply only toofficers and employees of state agencies, institutions and departments having state-wide jurisdiction" and thus did not apply tocounty attorneys, who were covered ~rather by former article 6252-19b, now chapter 102 of the Civil Practice and Remedies Code. Chapter 102 ofthe Civil Practice and Remedies Code makes provisions similar to those in chapter 104, but applies to conduct ofemployees and officers ofa "local government," while chapter 104applies toconduct ofemployees and officers ofa "state agency, institution, ordepartment." Section 102.002 provides inpart:

(a) A local government may pay actual damages awarded against an employee of the local government ifthe damages:
(1) result from anact oromission of the employee inthe course and scope of his employment for the local government: and (2) arise from acause ofaction for negligence.
Section 102.001 defines "local government" as "a county, city, town, special purpose district, and any other political subdivision ofthe state." Section 102.004 authorizes the local government, not the attorney general, to provide

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legal counsel insuits under chapter 102. Attorney General Opinion JR-197, m, concluded that the provisions ofwhat are now chapters 102 and 104 respectively, are tobe read Ir! pari materia and "are not intended to, and donot, cover the same officers and employees.H
The provisions ofchapter 101 ofthe 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 ofchapters 102 and 104. Section 101.021 provides:

Agovernmental unit 

### for: inthe state is liable

Section 

### (1) property damage, personal injury,

and death proximately caused bythe wrongful act oromission or the negligence of an employee acting within his scope oft employment if:
(A) the property damage, personal injury, ordeath arises from the operation or use ofamotor-driven vehicle ormotor-driven equipment; and

(B) the employee would bepersonally 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 ifthe governmental unit would, were ita 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) aoolitical subdivision ofthis tate. &pcludina any city, iistrict county, school

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

p. 5169Mr. 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, ororgan ofgovernment the status and authority ofwhich are derived from the Constitution of Texas or from laws passed by the legislature under the constitution. phasis added.)2 (EmInthe light ofthe authorities and statutory provisions discussed above, we conclude that ANRA isnot a "state agency, institution ordepartment" 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 ofchapters 101, 102, and 104. They are not "state agencies, institutions ordepartments" 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 agovernmental unit that has authorityand jurisdiction coextensive with the geographical limits of this state. The attorney general may be fully assisted by counsel provided byan insurance carrier. (b) Agovernmental unit having anarea 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 donot ask about andwe do not address the scope of these provisions with respect to their coverage of river authorities orother governmental units.

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

We donot think that the inclusion ofriver authorities as nstate agencies" under the Sunset Act -- towhich you referred inyour request -- is dispositive. Compare, for example, section 402.042 of the Government Code which specifies that inter alia "the head ofadepartment of state government," "the head ofastate board,' and "the chairman ofthe governing board of ariver authority" may request attorney general opinions. The statute's separate reference to chairmen ofthe governing boards ofriver authorities indicates that such persons were not considered by the legislature which enacted the provision to be included in the categories ofheads ofdepartments of state government orheads 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 inmuch the same relationship to their employees as counties to theirs, and having responsibility for their duties, working hours and compensations, indicates that ariver authority and not the state should be responsible for the conduct of such an employee which isthe basis for anaward ofdamages 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 hisnot a "state agency, institution, or departmentI within themeaning 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, ordepartment" under chapter 104 does not apply tothe Angelina-Neches River Authority orto itsofficers or employees.



# Very tuly Y , 

# L-l /tciLc A’, JIM MATTOX Attorney General ofTexas
MARY KELLER First Assistant Attorney General

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.

LouMC-Y

Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared byWilliam Walker Assistant Attorney General

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