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 Associationof Poison ControlCenters, and thatasocibn rfxpk a regionalpoison control wntcr to provideinformation to heallhcarc professionals and thepublic24 hourseach day, 365 dayspa year. See AmericanAss% 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. WEBSTER’S NINTTI 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 ControlCenters as a mgiooalpoison center,a eentcr musthaveat leastone specialist ia poisonioformation

in the ccoterat all timea,softicientadditionalstaffpromptly to handlethe center’s

incoming calls, sod the medicaldhector or qoalifieddesigaeeavailable,at leastoncall 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 mnsideronly the indemnity

to which an employee

is entitled.

‘To be ecrtifted

by the American

Association

ofP&on CcntrclCentcn, a regionalpotsonccntml emoter

mustmaintaina list of sqecialty eoosoltants

who areavailable

on ao on-callbasis. Criteria for Chiitieation as a RegionalPoison Center supro,pt. ll.C.4. A specialty wnsoltant most be qoaliied to pvidc sophisticated

toxicologyor patient-care information

in tbe consultant’s

amaof expertise. Id. pt. ll.E.5. A specialtymnsoltaotshouldbe available on-call, as needed. Id. Finally,the amas of expertise rdeued by the eat&s list of eonsoltantsshould mirror the @pmof poisoningsewnmtemd 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. p771.051(a)(l).

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

“Id. 8 11.002. 121d. § 11.005(a). ‘lb boardemploys a ammissionu to admUter the dcpartmcnfbut 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 & SafetyCcdcp777.008(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 RemediesCodechapter104 indemnified,among others, an employee or &cer ofa stateagency. See Civ. Rx. & Rem.Code5 104.001(l), amended by Act ofMay 9, 1995,74th Leg., RS., ch. 139.8 2, 1995Tex. Sees.Law Serv.982,982. The Seventy-fomtbLegislaturnamendeds&on 104.001 to indemn@ the same peoplebut regard1es.s of whether t%?ype#md their servtces for compensation. See Act of May9, 1995,74th Leg., R.S., ch. 139, 5 2, 1995 Tex. SesF. Law Serv.982,982. To the extentthatthe 1995 amembentdefinestheterm”employee”toinc1edea vohmccr, we eaonotimport the deJinition

intoHealthend SafetyCodesection777.007;we mayimport a statutory ddlnition only into a Iater-enaUed statute. See &v&Me v. HoustonIndep. Sch. Dist., 508 S.W.2d 675.677-78 (Tea. Civ. App.-Houston 114th Dist.] 1974, no tit) (citing Brownv. Lkden, 50 S.W.2d261 (Tex. 1932)). Because the “detinition”

cannotbe imported,

for puqnxs of this opinion we diseomCivil Fvacticc

and Remedies

Codechapter104as thoughthe 1995amendment to section 104.001 had not oaxmd. Of cootse, if an individualperforming services for a regionalpoison controlcenteris doiog KIas a volunteerfor a stateagencyto which Civil Pm&es and RemediesCodechapter104 applies,the individualis indannified m~der chapter 104. 24See Attorney General OpinionJh4-525

(1986)at4 (citingGw’t Code8 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 Act31as “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.2d400,403 (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 An0rneyGeneral

O@iOO DM-346this Offia SIatCd thatmOMiSSiOtlcrs of the Taraswokcm’ Compensation Commission am io the paid ervia of a govmlmentalcnutyandtbemfore “employees”

for pmpom of Civil Practia and RemediesCcdcchapter101becausethey am ktitkd to rcimburscmcnt

for actual nectasaryexpcmesmdactuallc4twagesductoatkndaxeatmmmission matings.” Attorney

General OpinionDM-346(1995) at 1 n.1. Althougha vohmteer fora regionalpisonwn~lcentermayrcaivenimburscmcntforhisorhncxpenses,wcfiodmstatutccntitlinga volunteer tc reimbursement.CJ Gov’tCode52109.004(b)(l) (authorizing gwcmmm talemilytbatpmvidcs humanservices

to reimburse

volunteers

foractualandnecesaty expenses). In addition,a volunteer is notcompensated

in anywayforlostwages dueto thevoluntar work.

“ ‘See Harris Cmmry v. Dihrd, 883 S.W.Zd166, 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 ‘rLow 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.) (citingNobles v. Texas bdem. Ins. Co., 24 S.W.Zd 367.369 (Xx. Comm’u&. 1930, judgm’tadopted)

andothercases). 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) (statingthat essential prerequisite of employer+mployee

relationship

is that employer mmPcu.m= anployec).

“BLACK’S LAW DICTIONARY at 1413. 3*&esupratextaccompanying notes31-32.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-widejurisdiction, 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

GateralOpinionJM-1005(1989) at 4 (citing Attotmy’ Gzncd OpinionH-297 (1974)) (defining“state

agency”). 41Cii. Pmt. &Rem. Cadc8 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 Codechapter 2109 tquires a gwcnuncntal entitythat provides for basichuman mentalor physicalueedsto um volt, if feasible. Gov’tCode0 2109.002; se also id. 0 2109.001 @dining ‘gowmmed entity,”“humauservices”). A govmuacatal entity’svohnltar pmgrammay, amougotherthiugs,%tubliiauinsumuce programtoprotectvol~teersintheperformance ofvuluntccr mrvias. ” Id. p 2109.004@~2). You do uot ask,uudwe do uot, therefore, determine

whethera regioual poison controlcenteris a goverum mtal entitythatprovide6 humanservices,to which Gwemmcut Code zcrFg is applicable. We also do not considerwhether the insuraua programchapter2109

overmueutal

entityto establish

includesliabilityinsurance.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