DAN MORALES 

ATTORNEY CENERAL 

@ffice of tfje Rlttornep QBeneraI 

Qtate of ZEexae 

November 26,199l 

Mr. William Treaty 

Executive Director 

Opinion No. DM-457 

Texas State Board of Public Accountancy 

333 Guadalupe, Tower III, Suite 900 

Austin, Texas 78701-3900 

Re: Whether state indemnification and defense 

in certain legal actions pursuant to chapter 104 

of the Civil Practice and Remedies Code is 

available to a volunteer performing services for 

Mr. Wayne Scott 

Executive Director 

Texas Department of Criminal Justice 

P.O. Box 99 

Huntsville, Texas 77342-0099 

a state agency (RQ-905) 

Dear Gentlemen: 

Civil Practice and Remedies Code section 104.001 requires the state to indemnify those 

individuals listed in that section for damages, court costs, and attorney fees if the damages are 

premised on an act or omission that occurred during the individual’s service to the state. Section 

104.004 requires the state to defend those same individuals. Section 104.001 does not list 

volunteers. You both ask whether the state must indemnify and defend a volunteer’ who provides 

services for your agency if a civil action is brought against him or her for an action performed in the 

course and scope of the voluntary services? The Department of criminal Justice inquires generally 

about volunteers who provide services for it,3 while the Board of Public Accountancy asks about its 

constructive enforcement volunteers, who assist the board with investigations. Because vohmteers 

are not among those individuals listed in section 104.001, we conclude that they are not entitled to 

indemnification from and legal representation by the state. 

‘See Gov’t Code 5 2109.004(a) (listing reqtdmments to which state agencies that wish to establish a volunteer 

progl-anl must adhere). 

‘Attorney General Opinion DM-173 (1992) concludes that section 101.063 of the Human Resources Code 

accorded i nummity from liability to volunteer ombudsmen in the Texas Depqent of Aging long-term care 

ombudsman program for the good-faith performance of their fi~~c.tions as volunteers, and Attorney General Opinion 

DM-206 (1993) concludes that this statute also applied to interns in the volunteer ombudsman prognun ‘Il~ese two 

opinions address a specific pmvisii of the Human Resources Code adopted to comply with a federal requirement, and 

they do not address tbe question of immunity for volunteers in general. 

‘See Gov’t Code. 5 501.009 (requiring Department of Criminal Justice to encourage volunteer organizations 

to provide various programs for inmates). 
Mr. William Treaty - Page 2 

Mr. Wayne Scott 

(DM-457) 

The executive diitor of the State Board of Public Accountsncy also asks whether a 

constructive enforcement vohmteer may claim an absolute or quahtied privilege if the volunteer is 

sued for defamation for his or her official work. We conclude that, in appropriate circumstances, 

the volunteer may claim one or the other. 

We will consider first your questions about the extent of Civil Practice and Remedies Code 

chapter 104. Section 104.001 of that chapter requires the state to indemnify certain individuals for 

damages, court costs, and attorney fees: 

In a cause of action based on conduct described in Section 104.002, the 

state shall indemnify the following persons, without regard to whether the 

persons perfoned their services for compensation, for actual damages, court 

costs, and attorney’s fees adjudged against: 

(1) an employee, a member of the goveming board, or any other 

officer of a state agency, institution, or department; 

(2) a former employee, former member of the governing board, or any 

other former officer of a state agency, institution, or department who was an 

employee or officer when the act or omission, . . occurred, 

(3) a physician or psychiatrist . . . who was performing services under 

a contract with any state agency, institution, or department or a racing official 

performing services under a contract with the Texas Pacing Commission 

when the act or omission. . . occurred; 

(4) a person serving on the governing board of a foundation, 

corporation, or association at the request and on behalf of an institution of 

higher education, . . . , not including a public junior college; 

(5) a state contractor who signed a waste manifest as required by a 

state contract; or 

(6) the estate of a person listed in this section. [Emphasis added.] 

Section 104.002 limits indemnification to damages based on sn action or omission committed in the 

course of the individual’s service to the state, with certain qualifications irrelevant here4 Any public 

‘An appropriation to pay a claim under Civil Practice and Remedies Code chapter 104 is to be made hm 

otherwise unappropriated amounts in a special fund or an account that may be appropriated to the aff&ed state agency, 

to the extent Ihat tends are available. Id. $5 109.002(b),003, ,007 (excepting certain claims hm chapter 109). If funds 

are unavailable, the appropriation may be made from the general revenue fund. Id. $109.003. The comptroller will 

(continued...) 

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Mr. Wayne Scott 

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s-t who is entitled to indemnification under sections 104.001 and 104.002 similarly is entitled 

to be defended by the attorney general? 

To conclude that a volunteer is entitled to indemnification under section 104.001, we must 

interpret the section in one of two ways: either the list of positions numbered (1) through (6) is 

exemplary and not exclusive, or one of the listed positions includes volunteers. Because you ask 

about vohmteers whose service fits under none of the listed categories except perhaps employee, we 

will consider only whether the term “employee” in section 104.001( 1) enwmpasses volunteers6 We 

believe the section’s plain language precludes either conclusion. Because we find the language clear, 

we need not rely on legislative history to determine what the legislature intended the section to 

mean.’ 

We first conclude that section 104.001 provides indemnification to only those individuals 

explicitly listed. A statute that creates an entitlement and designates the individuals who may claim 

the entitlement should be wnstrued restrictively to infer that any individual not expressly described 

is excluded* unless the statute clearly states the wntrary.9 Section 104.001 contains no language 

clearly stating the contrary, nor does it imply that the class of positions entitled to indemnification 

is broader than those positions specifically listed. The section does not, for example, require the 

state to indemnity those public servants including those listed. Similarly, the section does not 

suggest that the listed positions are described as an example. Nor does the list establish a seventh, 

open-ended category indemnifying, for example, any otherpublic servant. 

Second, we do not believe the term %mployee” includes volunteers, even though the section 

refers to individuals who are not compensated for their service to the state. This office refused in 

‘(...wtltiilued) 

reduce the appmpdion for the state agency in s.n smount not to exwed $S,ooO per claii or five percent of the agency’s 

appmpriation for that f=cal year for all claims. Id 5 109.004. 

'Id. 5 104.004(a). 

6We do not consider in this opinion whether s state employee is entitled to indemnification and representstion 

for an act 01 omission committed in the course of volunteer work. 

‘See Boykin v. St&e, 818 S.W.Zd 782,785-86 a.4 (Tex. Grim. App. 1991) (explaining that, despite Govemmnt 

Code’s invitation to extie legislative history regardless of statute’s clarity, court generally should decline to do so 

where language of statute in question is unambiguous); Lumbermen's Undenwiterr v. State Bd ofIns., 502 S.W.Zd 217, 

219 (Tex. Civ. App.--Austin 1973, writ refd n&e.) (citing 53 TEX. JUR. 2~ Statutes $ 125, at 182 11.17) (stating that, 

when leg&law plainly has expressed its intent in statute’s language, intent must be effectuated without attempting to 

conshue or interpret law). 

'See Bidelspach v. State, 840 S.W.2d 516,518 (Tex. App.-Dallas 1992). writ dism'd, 850 S.W.Zd 183 (Tex. 

Grim. App. 1993) @a cwiam); ~ANORMAN J.SINGER, STATUTES AND STATUTORY CONSTRUCTION 5 47.23 (5th ed. 

1992). 

?k 2A SINGER, supra note 8, g 41.23. 

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Mr. Wayne Scott (DM-457) 

Attorney General Opinion DM-409 to construe Health and Safety Code section 777.007, which 

requires the state to indemnify under Civil Practice and Remedies Code chapter 104 %n employee” 

of a regional poison control center, to require the state to indemnity a regional-poison-control-center 

vohmteer.“’ In that opinion, we distinguished an employee from a vohmteer on two bases: employer 

control and an express or implied contract for compensation.” An employer has control over an 

employee, but little over a volunteer. I2 In addition, an employee has an express or implied wntract 

for wmpensation with the employer, while a volunteer has no such contraw” We believe the same 

rationale applies here. 

Our wnstruction of section 104.001 does not render the phrase “without regard to whether 

the persons performed their services for compensation” meaningless, although our conclusion 

necessitates a finding that an employee cannot be uncompensated. In our opinion, the phrase refers, 

at the least, to board members, officers, and former board members whom the state must indemnify. 

We understand from one of the briefs we received on this issue that individuals serving as board 

members and officers generally are not compensated for their services, and evidently this fact caused 

confusion as to whether an individual must be compensated to be entitled to indemnification and 

defense. The smendment thus rectifies this incongruity and “clearly indicates that board members 

and former board members sre entitled to indemnification, . . . whether or not they perform their 

services for monetary wmpensation.“r4 

Finally, with respect to your joint question, because a volunteer is not entitled to 

indemnification from the state under section 104.001, a volunteer is likewise not entitled to the 

attorney general’s defense under section 104.004. 

We turn now to the additional questions posed by the executive director of the State Board 

of Public Accountancy regarding the board’s constructive enforcement vohmteers. Under the 

board’s direction, wnstructive enforcement volunteers are asked to do various investigative tasks 

including: 

(1) on-site investigations; 

“‘Attorney General Opinion DM-409 (1996) at 6-7. 

“See id. at 4-6. 

‘*See id at 5 (citiag Haavzktola v. Community Fire Co., 812 F. Supp. 1379, 1386 (D.C. Md.), rev’don other 

ground.~, 6 F.3d 211 (4th Ci. 1993)). 

“Id. at 5-6. 

“Letter from Delmar Caii General Counsel, The Texas A&h4 University System, to SarakShirley, Chair, 

Attorney Gerteral Opinion Committee (Oct. 23, 1996) (on tile with the Opinion Committee, Of&x of the Attorney 

General). 

p. 2559 
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Mr. Wayne Scott 

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(a) taking photographs, 

(b) obtaining statements; 

(c) gathering evidence such as letterhead or business cards; 

(2) locating witnesses; 

(3) making telephone calls to verify compliance with the Act, the 

Rules and Board Orders; 

(4) testifying at administrative hearings; 

(5) reviewing contimting professional education sponsors’ courses; 

and 

(6) carrying out other investigative tasks, as needed. 

The executive director inquires whether sn absolute privilege against a suit for defamation 

would apply to its constructive enforcement volunteers. Chapter 73 of the Civil Practice and 

Remedies Code defines defamation as follows: 

A libel is a defamation expressed in written or other graphic form that 

tends to blacken the memory of the de& or that tends to injure a living 

person’s reputation and thereby expose the person to public hatred, 

contempt or ridicule, or fmsncial injury or to impeach any person’s 

honesty, integrity, virtue, or reputation or to publish the natural defects 

of anyone and thereby expose the person to public hatred, ridicule, or 

financial injury. [Footnote added.] 

There is an absolute privilege for communications in the due course of a judicial proceeding 

made by the judge, jurors, counsel, parties, or witnesses.t6 Such communications will not serve as 

the basis of a civil action for libel or slander, regardless of the negligence or malice with which they 

are made.” The privilege attaches to all aspects of the proceedings, including statements made in 

open court, pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the 

‘sRecovery may be had for defamation of the dead only upon proof of irju$ to the reputation of the person 

by or for whom the action is brought. Renfio Drug Co. v. Lawson, 160 S.W.Zd 246,250 (Tex. 1942). 

‘4/ames v. Brown, 631 S.W.Zd 914,916-17 (Tex. 1982); Reagan v. Guardian Life Ins. Co., 166 S.W.Zd 909, 

912 (Tex. 1942). 

“Jamq 631 S.W.Zd at 916-17; Reagan, 166 S.W.Zd at 912. 

p. 2560 
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Mr. Wayne Scott 

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case.” The privilege barring defamation suits applies to proceedings before executive officers and 

boards and commissions that exercise quasi-judicial powersJ9 

Also subject to the absolute privilege are out-of-court communications made by attorneys 

preliminary to a judicial pmceeding or in connection therewith, if the statements relate to a judicial 

proceeding in which the attorney is employed and are in lktherance of the representation?o In a suit 

for damages instituted by a woman who was involuntarily hospitalized upon the application of her 

son and daughter, the Texas Supreme Court held that reports by three psychiatrists to the probate 

judge in the mental health proceedings were absolutely privileged?’ A letter by one of the 

psychiatrists to the attorney for the plaintiffs children was also within the privilege because it was 

written in contemplation of a judicial proceeding.‘2 

Accordingly, we believe that the constructive enforcement volunteers would have an absolute 

privilege against a civil action for libel or slander for statements made as witnesses in a quasijudicial proceeding before the State Board of Public Accountancy and for communications 

preliminary to a proposed proceeding in which the volunteer will testify, if the communication has 

some relation to the hearing.” Whether a preliminary communication is related to the proceeding 

is a question of law, to be determined by considering the entire communication in its context.” 

‘sJames, 637 S.W.2d at 916-17. 

‘9Reagan, 166 S.W.Zd at 912 (Board of Insurance Commissioners); Putter v. Anderson, 601 S.W.Zd 73.76 

(Tex. Civ. App.-Dallas 1980, writ nf d n.r.e.) (internal affairs division of city police deparhnent when investigating 

citizen’s complaint about police officer); see also Odeneal v. Woffoni, 668 S.W.Zd 819,820 (Tex. App.-Dallas 1984, 

wit ref d n.r.e.) (St&z Bar Grievance Committee). 

~Rtmell v. Clark, 620 S.W.M 865,869 (Tex. Civ. App.-Dallas 1981, wit refd me.); see also Odeneal, 668 

S.W.2d at 820 (privilege applies to letter written by attorney who is subject to grievance proceeding). The question of 

the relationship of the defamatory matter to a judicial proceeding is a question of law, to be determkd by the COIUI by 

considering the entire emmum ‘cation in its context and extending the privilege to any statement that bears some relation 

to a judicial pmceediag. Russell, 620 S.W.Zd at 870. 

“James, 637 S.W.Zd at 91617. 

221d. at 917. The James court described the scope of the privilege for matters written in contemplation of a 

judicial proceeding: 

A wi!ness is absolutely privileged to publish defanmbxy matter concerning another in 

communications preliminary to a proposed judicial proceeding or as a:part of a judicial 

proc&iig in which he is testifying, if it has some relation to the proceeding. 

Id. (quoting from THE RESTATEMENT 2~ OFTORTS $! 588 (1981)). 

“Id. 

uRwsell, 620 S.W.2d at 870. 

p. 2561 
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Mr. Wayne Scott 

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You also ask whether a conditional or qualified privilege might be available to constructive 

enforcement volunteers in defamation suits. This privilege applies to bona fide communications, 

oral or written, made in good faith on any subject matter in which the author has an interest or with 

reference to which he has a duty to perform, to another person having a corresponding interest or 

duty.rr It does not change the actionable quality of the words published, but merely rebuts the 

inference of malice that is imputed in the absence of privilege and makes a showing of falsity and 

actual malice essential to the right of recovery.26 The communication of alleged wrongful acts to an 

official authorized to protect the public from such acts is protected by a qualified privilege.27 In our 

opinion, a constructive enforcement volunteer acting at the direction of the State Board of Public 

Accountancy or of paid employees who supervise volunteers would have a sufficient interest in the 

work of the board to invoke this privilege for communications to the board or to employees that have 

a corresponding interest or duty with respect to the substance of the communication. Whether this 

privilege would apply in a particular situation must be decided in light of all the facts and 

circumstances. 

We wish to emphasize that the privileges we have discussed apply only to utterances that are 

made the basis of a subsequent suit for libel or slander. zs An action taken by a witness may be the 

basis of a civil suit on other grounds, even though it is the subject of the witness’s testimony fin a 

judicial or quasi-judicial proceeding. 29 Communicating investigative fmdings to the board and 

testifying at hearings are only two of many tasks that constructive enforcement volunteers might 

perform for the board. Causes of action other than an action for defamation might arise out of a 

volunteer’s other activities on behalf of the board?” 

%ay@ld v. Gleichert, 484 S.W.Zd 619,625 (Tex. Civ. App.-Tyler 1972, no wit). 

‘6rd. at 626, 

27.Zzrafe v. Corfinm, 553 S.W.Zd 652,655 (Tex. Civ. App.--Corpus Christi 1977, no wit) (accusation filed 

with sheriffs office accusing deputy county clerk of unauthorized loan of county equipment). 

“Charter Med. Corp. v. Miller, 605 S.W.Zd 943,953 (Tex. Civ. App.--Dallas 1980, wit ref d n.r.e.). 

*9James, 637 S.W.Zd at 917-18 (defamation action cannot be based on do&s communication to ccnui of 

diagmses of plaintiffs mental condition, but diagnoses themselves may be actionable on other grounds, such as medical 

malpractice). 

‘We. do not lmow the Fidel extent of the services performed by constructive enfonxment volunteers, because, 

as the. executive director of the Board of Public Accountancy informs us, their service includes “carrying out other 

investigative tasks, as needed.” 

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Mr. Wayne Scott 

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SUMMARY 

A person who serves a state agency as an unwmpensated volunteer 

is not entitled to indemnification against actual damages, court costs, and 

attorney fees adjudged against him or her under the circumstances described 

in section 104.002 of the Civil Practice and Remedies Code. Likewise, a 

volunteer is not entitled to be defended by the attorney general in suits 

subject to chapter 104 of the same code. 

Constructive enforcement volunteers who assist in investigations for 

the State Board of Public Accountancy would have an absolute privilege 

against a civil action for defamation for statements made as witnesses in a 

quasi-judicial proceeding before the board. They would have a conditional 

or qualified privilege against a defamation suit under appropriate 

circumstances. The conditional or qualified privilege applies to bona fide 

wmmunications, oral or written, made in good faith on any subject matter in 

which the author has an interest or with reference to which he has a duty to 

perform, to another person having a corresponding interest or duty. The 

absolute and conditional privileges apply only to a defamation suit and not 

to other causes of action that might arise Out of a volunteer’s activities on 

behalf of the Board of Public Acwuntancy. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fit Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Susan Garrison and Kymberly K. Ohrogge 

Assistant Attorneys General 

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