,- September 2, 1988

Honorable Hugh Parmer Chairman Intergovernmental Relations Committee Texas State Senate P. 0. Box 12068 Austin, Texas 78711 Opinion No. JM-951
Re: Whether apublic television station isa "charitable organization" for purposes of liability, ineluding slander and libel, and related questions (RQ-1513)
Dear Senator Parmer:
You ask our opinion on anumber of questions concerning the application of the Charitable Immunity and Liability Act of 1987 (the Act) to suits against public television stations and volunteer members of the supervisory boards responsible for the control of such.stations. Wewill first review theAct and then answer each of your questions in turn.
We assume that‘by "public television stations" YOU mean those broadcasting entities licensed by the Federal Communications Commission pursuant to section 301 of Title 47 of the United States Code: andwhich are owned and operated by nonprofit entities; and which provide noncommercial, educational broadcast programming for the public.1 See also 47U.S.C. 9 396.

-- The Charitable Immunity and Liability Act of 1987 was adopted by the legislature to "reduce the liability exposure and insurance costs" of "bona-fide" and *'well-supported@' charitable organizations "and their employees andvolunteers inorder to encourage volunteer services andmaximize the

1. We do not address those public television stations which are licensed topublic entities such as the state, its universities, or a political subdivision. See aenerally Civ. Prac. &Rem. Code ch. 101.

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resources devoted to delivering these services." Civ. Prac. &Rem. Code §84.002. The Act provides for limited grants of immunity for volunteers serving charitable organizations and for limitations on liability inmoney damages for employees and for the organizations. See Civ. Prac. & Rem. Code !j!j 84.004, 84.005, 84.006, 84.007. Both the grants of immunity and the limitations on liability are subject to numerous provisos. See Civ. Prac. &Rem. Code 8 84.007. Inparticular, it is important to note inreviewing your questions that none of the immunity-conferring and liability-limiting provisions in theAct apply to

an act or omission that is intentional, wilfullv orwantonlv nealiaent, or done with conscious indifference or reckless disregard for the safety of others. (Emphasis added.) Civ. Prac. & Rem. Code 9 84.007(a). Additionally, the limitations on liability available to employees donot appl; charitable organization and its unless the organization maintains a specified amount of liability insurance. Civ. Prac. &Rem. Code 5 84.007(g).
You first ask whether apublic television station is a "charitable organization" within the meaning of section 84.003(l) of theAct. Such.a determination isaquestion of fact: The Act sets.out two alternative sets of criteria for determining whether aparticular entity isa "charitable organization" forthe purposes of theAct:

(1) 'Charitable organization' means: (A) any organization exempt from federal income tax under Section 501(a) of the Internal Revenue Code of 1986bybeing listed as an exempt organization inSection 501(c) (3)or 501(c)(4) of the code, if it is a nonprofit corporation, fcundation, community chest, 'orfund organized and operated exclusively for charitable, religious, prevention of cruelty to children or animals, youth sports andyouth recreational, or educational purposes, excluding private primary or secondary schools, alumni associations and related on-campus organizations, or is

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_--. organized and operated exclusively for thepromotion of social ~welfare by being primarily engaged in promoting the common good and general welfare ,ofthepeople in a community: or (B) anybona fide charitable, religious, prevention of cruelty~tochildren or animals, youth sports and youth recreational, or educational organization, excluding alumni associations and related on-campus organizations, or other organization organized and operated exclusively for the promotion of social welfare bybeing primarily engaged in promoting the common good and general welfare of the people ina community, and that:

(i) isorganized and operated exclusively for one or more of the above purposes: (ii) does not engage in activities which inthemselves are not in furtherance of thepurpose orpurposes: (iii)does not directly or indirectly participate or intervene inany political campaign onbehalf of or inopposition to any candidate forpublic office; (iv) dedicates itsassets to achieving the stated purpose or purposes of the organization: (vi does not allow anypart of itsnet assets ondissolution of the organization to inure to thebenefit of any group, shareholder, or individual: and (vi)normally receives more than onethird of its support in any year from private orpublic gifts, grants, .contributions, ormembership fees. (2) 'Volunteer' means aperson rendering services for or on behalf of a charitable organization who does. not receive compensa.- tion inexcess of reimbursement for. expenses incurred, and such term includes a person

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serving as a director,'officer, trustee or .I direct service-voluntier. (3) 'Employee' means any person, including an officer ordirector, who is inthe paid service of a charitable organization, but does not include an independent contractor. (4) 'Good faith'means thehonest, conscientious pursuit of activities and purposes that the organization isorganized and operated toprovide. Civ. Prac. &Rem. Code g 84.003.
We cannot engage in fact-finding in the opinion process, andyou provide no facts concerning a particular public television station. Certainly, the licensee of a public television station may be, in the appropriate circumstances, a "charitable organization." For instance, we note that the rules and regulations of the Federal Communications Commission stipulate that public noncommercial television broadcqsting stations will

be licensed only to nonprofit educational organizations upon showing that the proposed stations willa be used primarily to serve the educational needs of the community; for the advancement of educational programs: and to furnish anonprofit and noncommercial television broadcast service. 47 C.F.R. 5 73.621. & &&p Commission Policy Concerning theNoncommercial Nature of Educational Broadcast Stations, 86 F.C.C.2d 141 (1981). TheAct clearly protects nonprofit (whether ornot tax-exempt) entities organized and operated for educational purposes as "charitable organizations." Civ. Prac. &Rem. Code § 84.003(1)(A) and (B). Thus, public television stations may qualify as charitable organizations, but each record. case must await resolution on a proper factuai

YOU next ask whether libel or slander, orboth, are included within the definitions of lVdamage*l or "injury" as used in sections 84.004(a) of the Civil Practices and Remedies Code.

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Section 84.004(a) of the code-provides in relevant part that

avolunteer who is serving as an officer,

director, or trustee of charitable organization is immune from citil liabilitv forany act resulting in death, damaae, or iniury if thevolunteer was acting in the course and scope of his duties or functions as an officer, director, or trustee within the organization. (Emphasisadded.) Civ. Prac. &Rem. Code 084.004(a). Libel is

adefamation expressed in written or other graphic form that tends toblacken thememory of the dead or that tends to iniure a living person's reputation and thereby expose theperson to public hatred, contempt or ridicule, or financial iniury or to impeach anypersonrs honesty, integrity, virtue, or reputation or topublish the natural defects of anyone and thereby expose theperson to public hatred, ridicule, **or** financial iniurv. (Emphasis added.) ~Civ. Prac. & Rem. Code 573.001. Slander -- the oral transmission of a defamatory statement -- is actionable under the common law.McDaniel v. Kinq, 16S.W.2d 931, 932 (Tex.Civ. App. - SanAntonio 1929, nowrit). The broadcasting ofdefamatory statement read from a script is libel, rather than slander. Kennedv v. Texoma Broadcasters, Inc., 507 S.W.2d 864~,866 (Tex.Civ.App. -Dallas 1974, nowrit). Thus, defamation is an "injury" within the meaning of section 84.004(a) of theAct. An action fordefamation may ormay not require the plaintiff toplead and prove actual damages. See generallv 36Tex. Jur. 2d §§ 93-95.
You also askwhether adefamatory public television broadcast will subject a public television station and volunteer members of theboard ofdirectors which govern the station to liability forthe defamation. The special nature of some defamations may mean that the Charitable Immunity and Liability Act will not apply to every libel or slander. This is sobecause section 84.007 of theAct states unequivocally that theAct does not

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apply to an act'~oromission that is- intenwilfully tional, orwantonly negligent, or done with conscious indifference or reckless disregard for the safety of others. (Emphasis added.) Civ. Prac. and Rem. Code § 84.007(a).. While proof of intent isnot required to establish **liability** for actual inadefamation action, see yornbv v damages

.Hunter 385 S.W.2d 473 (Tex.Civ. App. -Corpus Christi 1964, nowrit), any defamation proven tobe intentional isoutside of the protection conferred by the Act. Thus, volunteers and associated with a charitable employees entity will not be able to claim the protection of the Act inthe case of intentional defamation. The Civil Practice and Remedies Code provides a limited defense forbroadcasters accused tion: of transmitting a defama-

(a) A broadcaster is not liable ' damages for adefamatory statement publish:: oruttered inor as a part of aradio. or television broadcast by one other than the broadcaster unless the complaining party proves that the broadcaster failed to exercise due care toprevent the publication orutterance of the statement in the broadcast. (b) Inthis section, 'broadcaster' means an owner, licensee, or operator of a radio or television station

. . . and the **agents** and employees of the owner, licensee, or operator. Civ. Prac. &Rem. Code 573.004. This provision furnishes a limited defense for the **members** of the board of directors of apublic television station licensed to aTexas not-forprofit corporation, for they are the "operators" of the station. See, e.s., V.T.C.S. art. 1396-2.14 (theaffairs of anonprofit corporation shall be managed by a board of direct,ors).
We also caution that inaddition to the Texas law of defamation, public broadcasters are subject to the "personal attack" rules of the Federal Communications Commission. That rule provides:

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-. (a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon. the honesty, character, integrity like personal qualities of an identifier person orgroup, the licensee shall, within reasonable time and inno event later thai oneweek after the attack, transmit to the persons orgroup attacked: (1) Notification of the date,, time and identification of thebroadcast; (2) A script or tape (or an accurate summary ifa script or tape isnot available) of the attack: and (3) An offer of areasonable opportunity to respond over the licensees' facilities. (b) The provisions ofparagraph (a) of this section shall not apply to broadcast material which falls within one or **more** of the following categories: (1) Personal attacks on foreign groups or foreign public figures; (2) Personal attacks occurring during uses by legally qualified candidates. (3) Personal attacks made during broadcasts not included inparagraph (b)(2) of this section andmade by legally qualified candidates, their authorized spokespersons, or those associated with them in the campaign, on other such candidates, their authorized spokespersons orperson associated with the candidates inthe campaign: and (4),Bona fide newscasts, bona fide news interviews, and on-the-spot coverage of bona fide~news events, including commentary or analysis contained inthe foregoing programs. (c) The provisions ~ofparagraph (a) of this section shall be applicable to editorials of the licensee, except inthe case of noncommercial educational stations since

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they **.are** precluded from~ editorializing (section 399(a), Communications Act). 47 C.F.R. 5 73.1920.
Aviolation of this rule will not result in civil liability, but itmay cause the Communications Commission to revoke the license of apublic broadcaster.
SUMMARY ~TheCharitable Immunity and Liability

'. Act of 1987, Civ. Prac. &Rem. Code ch. 84, may provide for immunity to volunteers serving asmembers of theboards ofdirectors of public broadcasters. Whether the Act applies to apublic broadcasting station, its employees, and volunteers is aquestion of fact. Defamation is a category of injury subject to the Act. Public broadcasting stations, their operators, agents and employees may have a limited defense in the case of defamations broadcast over their facilities. Civ. Prac. &Rem. Code 973.004. Very truly yo s 

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A;, JIM MATTOX Attorney General ofTexas
MARY KELLER FirstAssistant Attorney General
LOUMCCREARY Executive Assistant Attorney.General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIY Chairman, opinion Committee Prepared by D.R. Bustion, II Assistant Attorney General

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