DAN MORALES 

.4TT,xiSE\ GE\ER.AL 

QBffice of tip Elttornep @eneral 

&ate of UZexas 

March 18, 1992 

Honorable A. J. Hartel 

Liberty County Attorney 

P. 0. Box 9127 

Liberty, Texas 775759127 

Opinion No. DM-98 

Re: Whether health care professionals 

employed on a part-time basis by a 

county to provide medical services to 

inmates in a county jail are entitled to 

indemnification and legal representation under sections 104.001,104.004 and 

110.002 of the Civil Practice and 

Remedies Code (RQ-158) 

Dear Mr. Hartel: 

You inform us that Liberty County is .attempting to employ physicians and 

nurses to provide medical care to inmates in the Liberty County Jail on a part-time 

basis. We have also been informed that the county currently employs a physician 

who is paid a salary of $l,OO&OO per month and also receives $10.00 per patient 

examined and $3.00 per drug prescription reviewed: Registered nurses are paid for 

their setices on an hourly basis. You explain that in order to attract health care 

professionals to work in the county jail, Liberty County would like to offer them the 

greatest benefits available, inchrding state-funded indemnification and legal 

representation if possible. To that end, you ask whether health care professionals 

employed on a part-time basis by the Liberty County Jail to provide medical services 

to inmates are entitled to indemnification and legal representation under sections 

104.001,104.004, and 110.002 of the Civil Practice and Remedies Code. 

Chapter 104 of the Civil Practice and Remedies Code provides that the state 

will indemnify and defend state employees and officials in certain kinds of legal 

actions. Specifically, section 104.001 of the Civil Practice and Remedies Code 

provides that the state shall indemnify a state employee or official for damages in an 

action based on an act or omission by the person in the course and scope of the 

person’s state duties and lists those persons entitled to indenm&ation. See Civ. 

Prac. & Rem C.ode 0 104.002 (defining conduct entitled to indemnification). In 

p. 495 
Honorable A. J. Hartel - Page 2 (DM-98) 

addition, section 104.004 provides that the attorney general shall defend those 

persons listed in section 104.001. 

Certain physicians and psychiatrists are among the categories of persons 

entitled to indemnification and legal representation under sections 104.001 and 

104.004. Specifically, section 104.001, subsection (3) indemnifies “a physician or 

psychiatrist licensed in this state who was performing services under a contract with 

any state agency, institution, or department.. . when the act or omission on which 

the damages are based occurred.” In addition, subsection (1) of that provision 

indemnifies “an employee, a member of the governing board, or any other officer of 

a state agency, institution, or department.” Therefore, the critical question for 

purposes of determining whether a physician or nurse employed by or under 

contract with the Liberty County Jail is entitled to indemnification and legal 

representation under chapter 104 of the Civil Practice and Remedies Code is 

whether Liberty County qualifies as a “state agency, institution, or department.” 

In Attorney General Opinion JM-197 (1984), this office considered whether 

county attorneys are entitled to indemnification and legal representation under 

former article 6252-26, V.T.C.S., the predecessor statute to chapter 104 of the Civil 

Practice and Remedies Code.’ Reasoning that “article 6252-26 was meant to apply 

only to officers and employees of state agencies, institutions and departments having 

statewide jurisdiction,” and noting that state indemnification for certain county 

officials and employees is provided in other statutes, we concluded that county 

attorneys were not covered by the statute. Ia! at 2-3; see also Attorney General 

Opinion JM-1005 (1989) (officials and employees, of river authority not entitled to 

indemnification under chapter 104 of the Civil Practice and Remedies Code). The 

legislature has not amended chapter 104 since 19&t to include county employees 

and officials within the definition of persons entitled to indemnification and legal 

representation. Therefore, we must conclude that a health care professional 

employed by or under contract with Liberty County would not be entitled to 

indemnification or legal representation under chapter 104. 

Next we consider whether a health care professional employed by Liberty 

County to provide medical care to inmates of the Liberty County Jail would be 

entitled to indemnification under chapter 110 of the Civil Practice and Remedies 

Code. Generally, chapter 110 of the Civil Practice and Remedies Code provides 

p. 496 
Honorable A. J. Hartel - Page 3 (DM-98) 

that the state will indemnify health care professionals* who devote a certain 

percentage of their professional energies to “charity care or services” in a medical 

malpractice claim in an amount not to exceed $25,000.00. See Civ. Prac. & Rem. 

Code 3 110.004.3 A health care professional is entitled to indemnification if he or 

she “renders charity care in at least 10 percent of the patient encounters engaged in 

by said health care professional during the policy year in which the claim was made.” 

Id. $ l10.001(2).4 “Charity care or services” is defined as care or services provided 

by a health care professional under several state and federal statutes that provide 

health care for the needy, including the Indigent Health Care and Treatment Act, 

chapter 61, Health and Safety Code? Id. 9 110.001(l). 

Your letter and the brief submitted in support of your request suggest that 

because many of the inmates in the Liberty County Jail are indigents, a health care 

professional who provides medical care for inmates would automatically qualify for 

indemnification pursuant to chapter 110. This is not the case. As noted above, 

whether a particular health care professional is qualified for indemnification will 

depend upon the extent to which his or her overall practice is devoted to the 

treatment of the needy under certain state and federal statutes. Such a 

determination involves questions of fact which cannot be resolved in the opinion 

process. Although we cannot address whether a particular health care professional 

is entitled to indemnification under chapter 110, we can address the question 

whether treatment of indigent county jail inmates under the part-time arrangement 

you describe would constitute “charity care,” as defined by section 110.001(l), for 

*or pwposcs of chapter 110 of the Civil Practice and Remedies Code, a “health care 

professhaP includes a person licensed to practice mcdiciae under the Texas Medical Practice Act, a 

person registered by the Board of Nurse Examiners as ao advanced practice muse or a certikd nurse 

midwife, or a person rceognizcd by the Board of Mcdicai Examiners as a physician assistant. Cii. Prac. 

&Rem. Code 0 110.001(3). 

%ection 110.004(a) authorizes indemnification in an amount up to SlOO,tMO.oO in caws 

rc.ding from prenatal care, l&or and dchwy, or resulting from emergency care. 

‘A “path encoont~ mans %a occasbnonwb.ichrhcalthcareprofcssionalnndus 

professional heaM cart sehces to a pat&t.” Id. 0 llO.OOl(7). 

sother provisions iac.lm in the ddbitim of ‘charity cue or services’ inchic Medicaid 

under chapter 32 of the Human Rcsowccs Cc& the Matcmal and Infant Health Improwment Act, 

chapter 32 of the Hcaltb and Safety code, the Texas Primary Hcaltb Care Sewicc.s Act, chapter 31 of 

the Health and safety Codq the Chronically Ill and Disabled Children’s serviecs Act, chapter 35 of the 

Health and Safety Code; or a contract with a miglaUt or fommunity he&h anter that rckii funds 

pursuant to a speci6ed fcdcral program, 42 U.S.C. 00 254b. 2%~ 2%. Id. 0 llO.a)l(l). 

p. 497 
Honorable A. J. Hartel - Page 4 (DM-98) 

purposes of the requisite ten percent of a health care professional’s yearly patient 

encounters. 

Chapter 110 defines “charity care or services” to include “care or services 

provided by a health care professional under [the Indigent Health Care and 

Treatment Act].” Article 104.002 of the Code of Criminal Procedure provides that a 

prisoner in a county jail who receives medical services is required to pay for the 

services when rendered. Code Crim. Proc. art. 104.002(d). If, on the other hand, a 

prisoner “cannot pay for such services because of indigence, as defined in the 

Indigent Health Care and Treatment Act, [the] county shall assist the prisoner in 

applying for reimbursement through [the] Act or the hospital district of which he is a 

resident.” Id. Thus, the medical care of some indigent inmates will ultimately be 

provided pursuant to the Indigent Health Care and Treatment Act. 

We believe that treatment of such inmates pursuant to a contract to provide 

medical care under the Indigent Health Care and Treatment Act constitutes “care 

or services provided by a health care professional under [the act]” and therefore 

qualifies as “charity care or services” under chapter 110. On the other hand, we 

believe that treatment of such inmates under a contract such as the one you 

describe, where the health care professional agrees to render medical care in 

exchange for a flat fee and a per patient fee, regardless of the patient’s payment 

source, would not necessarily qualify as “charity care or services.” Chapter 110 

explicitly requires that medical care be provided “under” the Indigent Health Care 

and Treatment Act. Thus, the contract with the health care professional must be 

drafted in light of the requirements of the Indigent Health Care and Treatment Act. 

A health care professional’s incidental treatment under an arrangement such as the 

one you describe of a patient who happens to be entitled to medical care under the 

Indigent Health Care and Treatment Act does not necessarily constitute care under 

the act. 

In sum, the medical care of county jail inmates pursuant to a contract to provide such care under the Indigent Health Care and Treatment Act constitutes “charity care.% Therefore, although the position of part-time physician or nurse in a 

county jail would not automatically qualify a health care professional for state 

indemnification, a health care professional who treats county jail inmates pursuant 

to a contract ,to provide such care in compliance with the Indigent Health Care and 

%f course, the medical care of county jail inmates pursuant to a contract to provide such care 

under any of the other statutes or programs listed in section 110.001(l), see note 5, sups, would also 

corlstitutc “charity care.” 

p. 498 
Honorable A. J. Hartel - Page 5 (DM-98) 

Treatment Act may count such patient encounters toward the ten percent patient 

encounter minimum required for indemnification under chapter 110. 

SUMMARY 

Health care professionals employed on a part-time basis by 

the Liberty County Jail to provide medical services to county jail 

inmates are not entitled to indemnification or legal representation under chapter 104 of the Civil Practice and Remedies Code. 

The determination whether a particular health care 

professional employed on a part-time basis by the Liberty 

County Jail to provide medical care to inmates is entitled to 

indemnification under chapter 110 of the Civil Practice and 

Remedies Code depends upon the overall nature of his or her 

practice and involves questions of fact which cannot be resolved 

in the opinion process. If a health care professional provides 

medical care to indigent inmates pursuant to. a contract to 

provide such care in compliance with the Indigent Health Care 

and Treatment Act, such care constitutes “charity care or 

services” for purposes of section 110.001(l), and counts toward 

the ten percent patient encounter minimum required for 

indemnification under that chapter. Treatment of such inmates 

under a contract where the health care professional agrees to 

render medical care in exchange for a flat .fee and a’per patient 

fee, regardless of the patient’s payment source, would not 

necessarily qualify as “charity care or services.” 

DAN MORALES 

Attorney General of Texas 

p. 499 
Honorable A. J. Hartel - Page 6 (DM-98) 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

p. 500