DAN MORALES 

ATTORNEY GENERAL 

Office of the Bttornep 

&date of PCexae 

August 20,1996 

@enera 

Mr. James D. Goerke 

Executive Director 

Advisoly commission 

on State Emergency Communications 

333 Guadalupe Street, Suite 2-212 

Austin, Texas 78701-3942 

Dear Ms. Boyd: 

Opinion No. DM-409 

Re: Whether Health and Safety Code 

section 777.007 quires the state to indemnify an individual who is not an 

employee of a regionsl poison control center and related questions (RQ-874) 

Section 777.007 of the Health and Safety Code requires the state to indemnity sn 

employee of a regional poison control center under Civil Bractice and Remedies Code 

chapter 104. We understand you to ask primarily whether section 777.007 requires the 

state to indemnity an individual who is not an employee of a regional poison control center. In our opinion, the plain language of section 777.007 limits indemnity under that 

section to employees; it does not indemnify individuals who are not employees of a poison 

control center. Thus, section 777.007 does not require the state to indw a volunteer 

and an independent contractor, nor does it require the state to indemnity an employee of a 

state agency whose job involves performing some work for a poison control center. Another statute, however, may indemnify an employee of a state agency acting within the 

scope of his or her 05&l duties. 

We believe it wig be help&l to begin by discus@ Health and Safety Code chapter 

777, which designates six health-care thcilities as regional poison control centerst Bach 

poison control center must provide a twenty-four hour, toll&e-e telephone refd service 

that provides to the public and health-care professionals information on ingested poisons 

and exposure to poisonss Moreover, a poison control center must attempt to educate the 

public about poison prevention and health-care professionals about the treatment of poizId. 0 777.@02(a). Indeed, each @mal poison amtml center must meet the crita’ia of the 

Anurican Association of Poison Control Centers, and that asocibn rfxpk a regional poison control 

wntcr to provide information to heallhcarc professionals and the public 24 hours each day, 365 days pa 

year. See American Ass% of Poiin control Centers, Cxitaia for btifscation as a Regional Poison 

cmter pt. II.A (Jan. 19%). 
MsMarykBoyd - Page 2 (DM-409) 

son and overdose victims, provide toxocologid assistance to state agencies, and be available to consult on medical toxicology.4 To carry out its functions, a poison control center 

is required to “use” physicians, pharmacists, nurses, other professionals, and support staff 

trained in various aspects of toxicology and poison control and prevention.J 

Section 777.007, about which you specifically ask, requires the state to indemnity 

“a poison control center and an employee of a poison control center under” Civil Practice 

and Remedies Code chapter 104.6 In your letter to this office, you have described various 

individuals and organixations that are involved with a poison control center: the Advisory 

Commission on State Emergency Communications and its personnel; the Texas Department of Health and its personnel; personnel of the General Services Commission; the 

members of the coordinatmg committee on poison control; health-care professionals who 

vohmteer their time to the poison control center; and specialty consultants who provide, as 

you state, “sophisticated toxicology or patient care information in their areas of expertise,” 

e.g., herpetology, botany, and forensic toxicology.7 As we understand your question, you 

wish to know which, if any, of these persons section 777.007 requires the state to indemnity, to the extent they serve a poison control center. 

Aside from volunteer health-care professionals and specialty consultants, the entities you list require some explanation. The first entity, the Advisory Commission on State 

Emergency Communications, is created by Health and Safety Code chapter 771. Twelve 

of its sixteen members are appointed by various public officials; the remaining four members sit on the advisory commission because of another public 05ce they hold.* With 

~oxieology is a science that deals with poisons and their effects. WEBSTERNINTTI ’S NEW 

COUMIA~DIC~ONARY 1248 (1990). 

‘Health & safely code 5 777.003. 

51d. p 777.004(a). To be certified by the American Association of Poison Control Centers as a 

mgiooal poison center, a eentcr must have at least one specialist ia poison ioformation in the ccoter at all 

timea, softicient additional staff promptly to handle the center’s incoming calls, sod the medical dhector 

or qoalified desigaee available, at least oncall by telephoae, at all times. Criteria for Cutitication as a 

Regional Poison Center supro pt. EA. 

%a-awe yoo do not ask about a poison control center’s corporate liiility, we mnsider only the 

indemnity to which an employee is entitled. 

‘To be ecrtifted by the American Association of P&on Ccntrcl Centcn, a regional potson ccntml emoter must maintain a list of sqecialty eoosoltants who are available on ao on-call basis. Criteria for 

Chiitieation as a Regional Poison Center supro, pt. ll.C.4. A specialty wnsoltant most be qoaliied to 

pvidc sophisticated toxicology or patient-care information in tbe consultant’s ama of expertise. Id. pt. 

ll.E.5. A specialty mnsoltaot should be available on-call, as needed. Id. Finally, the amas of expertise 

rdeued by the eat&s list of eonsoltants should mirror the @pm of poisonings ewnmtemd io the mpion. Id. 

Qealth & Safety code $771.031(a). 
MsMarykBoyd - Page 3 @M-409 

reference to the poison control center network, the advisory commission is to administer 

the centers’ telecommunications requirements. 9 The advisory commission funds poison 

control center services by collecting a surcharge on local exchange and intrastate longdistance telephone charges.r” 

The Texas Department of Health is established generally to protect and promote 

public health.11 The department is governed by a six-member board, each member of 

which is appointed by the governor.12 With respect to the regional poison control centers, 

the Department of Health shares r&-making authority with the Advisory Commission on 

State Emergency Communications;~3 it also shares with the advisory wmmission responsibiity to award grants to fund the regional poison control centers.t4 

The General Services Commission, whose six members are gubernatorial appointments,rr is generally responsible for procuring all of a state agency’s goods and service~.~~ 

Sign&ant to your question, the General Services Commission must manage the operation 

of a telecommunications system for all state agencies.*7 The General Services Commission also must, to the extent possible, satisfy each state agency’s telecommunications 

needs.t* For purposes of the State Purchasing and General Services Act,lg a “state 

agency” includes an agency in the executive branch of state government created by a state 

statute.20 The Advisory Commission on State Emergency Communications, which admittisters the poison control centers’ telecommunications needs, qualiies as a state agency 

under the State Purchasing and General Services Act. 

gId. p 771.051(a)(l). 

‘Old. 08 771.071(a), .072(a), (d), (e), ,075. 

“Id. 8 11.002. 

121d. § 11.005(a). ‘lb board employs a ammissionu to admUter the dcpartmcnf but tbc 

cOrnmiSSiOner is always subject to the bed’s mpervision Id. $8 11.012(a), .013(a), @I. 

‘)Id. 0 777.001(b). 

“1d. 5 777.009. 

‘%ov’t Chic $2152.051. 

9d. 8 2155.061(a). 

“Id. 0 2170.051(a). 

‘*Id. 8 2170.051(b). 

%ov’t Code tit. 10, s&tit. D; see id. 8 2151.001. 

3”Id. 8 2151.002(2)(A)~ 
Ms. Mary A. Boyd - Page 4 @M-4@) 

The coordinating committee on poison control, the last entity you specitically 

mention, advises the Texas Board of Health and the Advisory Commission on State 

Emergency Communications.sl Six of the committee’s members are appointed by each of 

the health-care institutions that serve as regional poison control centers; the remaining 

nine members are appointed by other public health-care institutions and state agencies, 

including the Advisory Commission on State Emergency Communications and the Department of Health. 

To resolve whether these entities, as well aa volunteers and specialty wnsultants, 

are entitled to indemnity under Health and Safety Code section 777.007, we must interpret 

the section. On its face, section 777.007 rewires the state to indemnify only an employee 

of the center under Civil Practice and Remedies Code chapter 104. Consequently, anyone 

who is not employed by a poison control center is not entitled to indemnity under section 

777.007. 

Chapter 777 of the Health and Safety Code does not, however, define the term 

“employee.” Incidentally, when the legislature enacted Health and Safety Code section 

777.007 in 1993,n chapter 104 of the Civil Practice and Remedies Code also did not detine the term.u We must, therefore, define the term in context and wnsistent with 

wmmon usage.14 In Attorney General Opinion lM-525 this o5ce de&ted the term 

“employee” for purposes of Civil Practice and Remedies Code chapter 104 in light of the 

statute’s purpose to indemnify an employee of the state.25 Because chapter 104 generally 

renders the state liable for damages caused by an employee’s conduct, the opinion exam21Hcalth & Safety Ccdc p 777.008(a). 

%ee Act of May 27, 1993, 73d Leg., RS., ch 670, sec. 1, § 777.007, 1993 Tex. Gen Laws 

2495.2497. 

“Prior to 1995, Civil Practice and Remedies Code chapter 104 indemnified, among others, an 

employee or &cer of a state agency. See Civ. Rx. & Rem. Code 5 104.001(l), amended by Act of May 

9, 1995,74th Leg., RS., ch. 139.8 2, 1995 Tex. Sees. Law Serv. 982,982. The Seventy-fomtb Legislaturn amended s&on 104.001 to indemn@ the same people but regard1es.s of whether t%?y pe#md 

their servtces for compensation. See Act of May 9, 1995, 74th Leg., R.S., ch. 139, 5 2, 1995 Tex. SesF. 

Law Serv. 982,982. To the extent that the 1995 amembentdefinestheterm”employee”toinc1edea 

vohmccr, we eaonot import the deJinition into Health end Safety Code section 777.007; we may import a 

statutory ddlnition only into a Iater-enaUed statute. See &v&Me v. Houston Indep. Sch. Dist., 508 

S.W.2d 675.677-78 (Tea. Civ. App.-Houston 114th Dist.] 1974, no tit) (citing Brown v. Lkden, 50 

S.W.2d 261 (Tex. 1932)). Because the “detinition” cannot be imported, for puqnxs of this opinion we 

diseom Civil Fvacticc and Remedies Code chapter 104 as though the 1995 amendment to section 104.001 

had not oaxmd. Of cootse, if an individual performing services for a regional poison control center is 

doiog KI as a volunteer for a state agency to which Civil Pm&es and Remedies Code chapter 104 applies, the individual is indannified m~der chapter 104. 

24See Attorney General Opinion Jh4-525 (1986) at 4 (citing Gw’t Code 8 311.011). 

25~ 
Ms.MaryABoyd - Page 5 @M-4@9 

ined analogous private-sector tort cases in which an employer’s liability depends on the 

tortfeasor’s being an employee, not an independent contractor.26 In these cases, an individual’s status as an employee depends upon whether the employer has the right to control 

the details of the wok2’ Whether the employer actually exercises the right is inwnsequentiaL2* 

In our opinion, because the context of Health and Safety Code section 777.007 is 

similar to that of Civil Practice and Remedies Code chapter 104, we may define 

“employee” in the same way. The detlnition articulate-d by Attorney General Opinion 

Jh4-525 is designed to distinguish an employee from an independent contractor, however; 

it does not necessarily distinguish an employee from a volunteer. Nevertheless, a federal 

wurt in Maryland has noted that the nature of a volunteer’s service is such that an 

%mployer” has little control over the volunteer. 29 For instance, although an employer 

may instruct a volunteer as to the services the employer wishes the volunteer to perform, 

the employer has little control over the volunteer’s hours of work, dress, absenteeism, or 

whether the volunteer satisfactorily completes the assigned tasks.30 

Furthermore, we believe an express or implied contract for compensation is an 

additional characteristic of the employee-employer relationship that distinguishes an employee from a volunteer. Section 101.001 of the Civil Practice and Remedies Code 

d&es ‘kmployee” for purposes of the Texas Tort Claims Act31 as “a person . . . who is in 

the paid service of a governmental unit .“32 A volunteer is not an employee for whose 

conduct a governmental unit may be liable under the Tort Claims Act.33 Because the pur- 

“Id. 

nId. (citing Newqxzpers Inc. v. Low, 380 S.W.Zd 582,591 (-k.x. 1964)). 

IsId. (citing Great Western Killing Co. v. Simmms, 302 S.W.2d 400,403 (Tex 1957)). 

%ee Haavistola v. Cmnmunity Fin Co., 812 F. Supp. 1379, 1386 (D.C. Md.), mv’d on other 

gram& 6 F.3d 211 (4th Cu. 1993). 

%ee id. 

31Cii. Fmc. &Rcm. Cde ch. 101; see id. 8 101.002. 

32h An0rney General O@iOO DM-346 this Offia SIatCd that mOMiSSiOtlcrs of the Taras wokcm’ Compensation Commission am io the paid ervia of a g ovmlmentalcnutyandtbemfore 

“employees” for pmpom of Civil Practia and Remedies Ccdc chapter 101 because they am ktitkd to 

rcimburscmcnt for actual nectasaryexpcmesmdactuallc4twagesductoatkndaxeatmmmission 

matings.” Attorney General Opinion DM-346 (1995) at 1 n.1. Although a vohmteer for a regional pisonwn~lcentermayrcaivenimburscmcntforhisorhncxpenses,wcfiodmstatutccntitlinga 

volunteer tc reimbursement. CJ Gov’t Code 5 2109.004(b)(l) (authorizing gwcmmm talemilytbatpmvidcs human services to reimburse volunteers for actual and necesaty expenses). In addition, a volunteer 

is not compensated in any way for lost wages due to the voluntar work. 

“‘See Harris Cmmry v. Dihrd, 883 S.W.Zd 166, 167 (lb. 1994), 
MsMaryABoyd - Page 6 K’M-9 

poses of the Tort Claims Act and section 777.007 of the Health and Safety Code pertain 

to the state’s liability in tort cases, we believe we must construe the term “employee” 

wnsistently in both statutes, especially since the legislature has not provided to the wntrary. 

In addition, for purposes of the Workers’ Compensation Act, the Texas Court of 

Civil Appeals has held that an individual who performs a service of his or her own free will 

without any promise of remuneration is a volunteer, not an employee.” While the court 

based its conclusion on the detlnition of the term “employee” in the Workers’ Compensation Act, we believe the court’s definition comports with the wmmon understanding of 

the term. For example, BLrck ‘r Low LXwonmy defines employee generally as “a person 

in the service of another under [a] contract of hire” . a person working for salary or 

wages.“% A volunteer, by contrast, is an individual who serves with no promise of remuneration.f7 

We therefore conclude that, unless defined otherwise by statute, an individual’s 

status as an employee is determined not only by whether the putative employer has a right 

to wntrol the employee, but also by whether the putative employer has wntracted, explicitly or implicitly, to compensate the employee for the employee’s services. We note 

that Civil Practices and Remedies Code section 102.001( 1) explicitly detines “employee” 

for purposes of determining a local government’s tort-claim liability to include a volunteer. 

We think, though, that this inclusion of volunteer is an exception to the genera) rule. 

Moreover, we believe the detinition of employee in the Texas Tort Claims Actss more 

closely fits the legislature’s intended usage of the term in Health and Safety Code section 

777.007, given that both statutes involve the state’s liability for its employees’ conduct. 

Consequently, in answer to your specific questions, Health and Safety Code section 777.007 requires the state to indemnify only those individuals with whom a poison 

control center contracts, explicitly or implicitly, to compensate and whose services the 

poison control center has a right to control. Both of these requirements must be met. An 

34See Texas Employers Ins. Au’n v. BurrelI, 564 S.W.2d 133, 134 (Tcx. Civ. App.-Beamnont 

1978, writ refd nr.e.) (citing Nobles v. Texas bdem. Ins. Co., 24 S.W.Zd 367.369 (Xx. Comm’u &. 

1930, judgm’t adopted) and other cases). 

35Black’s cites, for tbis dehitiou of “employa,” Rtverbend Country Club v. Patterson, 399 

S.W.Zd 382,383 (Tex. Civ. App.-E&and 1965, tit r&d n.r.e.). BUCK’SLAW DICTIONARY 471 (5th 

cd. 1979). 

NId. (fwtnok add@; see also Graves v. Women’s professional Rodeo Au’n, 907 F.2d 71.73 

(8th Cu. 1990) (stating that essential prerequisite of employer+mployee relationship is that employer 

mmPcu.m= anployec). 

“BLACK’S LAW DICTIONARY at 14 13. 

3*&e supra text accompanying notes 31-32. 
MsMaryABoyd -Page 7 @M-409) 

individual employed by a state agency who, in accordance with statutory duties bestowed 

upon that agency, works with a regional poison control center is not an employee of the 

center, although the individual is an employee of the state agency. A volunteer who serves 

a regional poison control center is not an employee of the center because the volunteer has 

no expectation of remuneration for his or her services. Likewise, an individual who is 

wntractually entitled to payment from a poison control center, but who is not subject to 

the center’s right to control the details of the work, is an independent contractor, not an 

employee of the center. 

Accordingly, section 777.007 does not require the state to indemnify many of the 

individuals you list. The state need not indemnity under that section individuals who serve 

a regional poison control center because they are employed by a state agency that has 

some responsibility with respect to the center. Thus, 05cers and employees of the Advisory Commission on State Emergency Communications, the Texas Department of Health, 

the General Services Commission, or the coordinating committee are not employees of a 

regional poison control center, and section 777.007 does not require the state to indemnify 

them. 

Other statutes may provide these individuals with indemnity or exempt them from 

liability, however. Health and Safety Code section 771.053(b), for example, may exempt 

from liabii members of the Advisory Commission on State Emergency Communications. 

Furthermore, chapter 104 of the Civil Practice and Remedies Code requires the state to 

indemnity an employee or officer of a state agency.39 Although chapter 104 does not defme state agency, we believe the term includes entities created by statute, that have 

state-wide jurisdiction, and the members of which are appointed by state 05cials.~ Acwrdingly, we conclude that employees and officers of the Advisory Commission on State 

Emergency Communications (to the extent they are not exempt from liabiity), the Texas 

Department of Health, and the General Services Commission are within the indemnity 

Civil Practice and Remedies Code chapter 104 provides. Of course, chapter 104 requires 

the state to indemnify an employee or officer only if the damages are predicated on the 

employee’s or officer’s act or omission performed in the course and scope of the employment or ~ffice.~r Additionally, chapter 104 requires the state to indemnify an employee or 

officer only ifthe damages arise out of a cause of action for negligence; the damages arise 

out of a cause of action for deprivation of a federal wnstitutional or statutory right, pritilege or immunity; or the attorney general determines that the state’s best interest warrants 

indemnifying the employee or o5cer.” 

‘viv. Rat. &Run. c!dc 8 104.001(1). 

%ee Attorney Gateral Opinion JM-1005 (1989) at 4 (citing Attotmy’ Gzncd Opinion H-297 

(1974)) (defining “state agency”). 

41Cii. Pmt. &Rem. Cadc 8 104.002(a). 

42Health & say CcJde 8 777.007. 
Ms. Mary A Boyd - Page 8 @‘M-4@‘) 

Section 777.007 of the Health and Safety Code does not require the state to indemnify a volunteer of a regional poison control center:3 We camtot determine whether 

section 777.007 requires the state to indemnify a specialty consultant because you do not 

indicate the circumstances of a specialty wnsultant’s service to a regional poison control 

center. If the specialty wnsultant is an employee of a regional poison control center, he or 

she is entitled to indemnity under section 777.007. If on the other hand, the specialty 

wnsultant is not a poison control center employee, he or she is not entitled to indemnitication under section 777.007, although the consultant may be entitled to indemniftcation, 

under another statute, as an employee of another agency. 

“Govcmmat Code chapter 2109 tquires a gwcnuncntal entity that provides for basic human 

mental or physical ueeds to um volt, if feasible. Gov’t Code 0 2109.002; se also id. 0 2109.001 

@dining ‘gowmmed entity,” “humau services”). A govmuacatal entity’s vohnltar pmgram may, 

amougotherthiugs,%tubliiauinsumuce programtoprotectvol~teersintheperformance ofvuluntccr 

mrvias.” Id. p 2109.004@~2). You do uot ask, uud we do uot, therefore, determine whether a regioual 

poison control center is a goverum mtal entity that provide6 human services, to which Gwemmcut Code 

zcrFg is applicable. We also do not consider whether the insuraua program chapter 2109 

overmueutal entity to establish includes liability insurance. 
Ms. Mary A Boyd - Page 9 @M-409) 

SUMMARY 

Health and Safety Code section 777.007 requires the state to indemnity only an employee of a regional poison control center. An 

individual’s status as an employee is determined by whether the putative employer has a right to control the details of the individual’s 

work. In addition, an employee is distinguished from a volunteer by 

an employee’s wntractual (express or implied) right to wmpensation. 

An employee of a state agency, not a regional poison control 

center, is not entitkd to indemnikation under Health and Safety 

Code section 777.007. Thus, an 05cer or employee of the Advisory 

Commission on State Emergency Communications, the Texas Department of Health, the General Services Commission, or the 

wordiiting wmmittee established by Health and Safety Code saction 777.008 who are not employees of a regional poison control 

center are not entitled to indemnification under section 777.007. Of 

course, other statutes may provide these individuals with indemnity 

or exempt them 6om liability. Furthermore., section 777.007 does 

not require the state to indemnify vohmteers or independent wntractars of a regional poison control center. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fht Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General