,- 

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 a public television station is a "charitable organization" for 

purposes of liability, ineluding slander and libel, 

and related questions 

(RQ-1513) 

Dear Senator Parmer: 

You ask our opinion on a number 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. We will first 

review the Act 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: and which are owned and 

operated by nonprofit entities; and which provide noncommercial, educational broadcast programming for the 

public.1 -- See also 47 U.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 and volunteers 

in order to encourage volunteer services and maximize the 

1. We do not address those public television stations 

which are licensed to public entities such as the state, its 

universities, or a political subdivision. See aenerally 

Civ. Prac. & Rem. Code ch. 101. 

h 

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Honorable Hugh Panzer - Page 2 (JM-951) 

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 in money 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. In particular, it is 

important to note in reviewing your questions that none of 

the immunity-conferring and liability-limiting provisions in 

the Act apply to 

an act or omission that is intentional, 

wilfullv or wantonlv 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 do not 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 a public television station is 

a "charitable organization" within the meaning of section 

84.003(l) of the Act. 

Such.a determination is a question of fact: The Act 

sets.out two alternative sets of criteria for determining 

whether a particular entity is a "charitable organization" 

for the purposes of the Act: 

(1) 'Charitable organization' means: 

(A) any organization exempt from federal 

income tax under Section 501(a) of the 

Internal Revenue Code of 1986 by being listed 

as an exempt organization in Section 501(c) 

(3) or 501(c)(4) of the code, if it is a 

nonprofit corporation, fcundation, community 

chest, 'or fund organized and operated exclusively for charitable, religious, prevention 

of cruelty to children or animals, youth 

sports and youth 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 

the promotion of social ~welfare by being 

primarily engaged in promoting the common 

good and general welfare ,of the people in a 

community: or 

(B) any bona fide charitable, religious, 

prevention of cruelty ~to children 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 by being primarily engaged in 

promoting the common good and general welfare 

of the people in a community, and that: 

(i) is organized and operated exclusively for one or more of the above 

purposes: 

(ii) does not engage in activities 

which in themselves are not in furtherance 

of the purpose or purposes: 

(iii) does not directly or indirectly 

participate or intervene in any political 

campaign on behalf of or in opposition to 

any candidate for public office; 

(iv) dedicates its assets to achieving 

the stated purpose or purposes of the 

organization: 

(vi does not allow any part of its net 

assets on dissolution of the organization 

to inure to the benefit of any group, 

shareholder, or individual: and 

(vi) normally receives more than onethird of its support in any year from 

private or public gifts, grants, .contributions, or membership fees. 

(2) 'Volunteer' means a person rendering 

services for or on behalf of a charitable 

organization who does. not receive compensa.- 

tion in excess of reimbursement for. expenses 

incurred, and such term includes a person 

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Honorable Hugh Parmer - Page 4 UM-951) 

serving as a director,'officer, trustee .I or 

direct service-voluntier. 

(3) 'Employee' means any person, including an officer or director, who is in the 

paid service of a charitable organization, 

but does not include an independent contractor. 

(4) 'Good faith' means the honest, conscientious pursuit of activities and purposes that the organization is organized and 

operated to provide. 

Civ. Prac. & Rem. Code g 84.003. 

We cannot engage in fact-finding in the opinion 

process, and you 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 a nonprofit and noncommercial 

television broadcast service. 

47 C.F.R. 5 73.621. & &&p Commission Policy Concerning 

the Noncommercial Nature of Educational Broadcast Stations, 

86 F.C.C.2d 141 (1981). The Act clearly protects nonprofit 

(whether or not 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, or both, 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 

a volunteer who is serving as an officer, 

director, or trustee of charitable 

organization is immune from citil liabilitv 

for any act resulting in death, damaae, or 

iniury if the volunteer was acting in the 

course and scope of his duties or functions 

as an officer, director, or trustee within 

the organization. (Emphasis added.) 

Civ. Prac. & Rem. Code 0 84.004(a). 

Libel is 

a defamation expressed in written or other 

graphic form that tends to blacken the memory 

of the dead or that tends to iniure a living 

person's reputation and thereby expose 

the person to public hatred, contempt or 

ridicule, or financial iniury or to impeach 

any personrs honesty, integrity, virtue, or 

reputation or to publish the natural defects 

of anyone and thereby expose the person to 

public hatred, ridicule, or financial iniurv. 

(Emphasis added.) 

~Civ. Prac. & Rem. Code 5 73.001. Slander -- the oral 

transmission of a defamatory statement -- is actionable 

under the common law. McDaniel v. Kinq, 16 S.W.2d 931, 932 

(Tex. Civ. App. - San Antonio 1929, no writ). The broadcasting of defamatory 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, no writ). 

Thus, defamation is an "injury" within the meaning of 

section 84.004(a) of the Act. An action for defamation may 

or may not require the plaintiff to plead and prove actual 

damages. See generallv 36 Tex. Jur. 2d §§ 93-95. 

You also ask whether a defamatory public television 

broadcast will subject a public television station and 

volunteer members of the board of directors which govern the 

station to liability for the 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 so because section 84.007 of 

the Act states unequivocally that the Act does not 

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Honorable Hugh Parmer - Page 6 (JM-951) 

apply to an act'~or omission that is- intentional, wilfully or wantonly 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 

is not required to establish liability for actual 

in a defamation action, see yornbv v 

damages 

. Hunter 385 S.W.2d 473 

(Tex. Civ. App. - Corpus Christi 1964, no writ), any defamation proven to be intentional is outside 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 in the case of intentional 

defamation. 

The Civil Practice and Remedies Code provides a limited 

defense for broadcasters accused 

tion: 

of transmitting a defama- 

(a) A broadcaster is not liable ' 

damages for a defamatory statement publish:: 

or uttered in or as a part of a radio. or 

television broadcast by one other than the 

broadcaster unless the complaining party 

proves that the broadcaster failed to 

exercise due care to prevent the publication 

or utterance of the statement in the broadcast. 

(b) In this 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 5 73.004. This provision furnishes a 

limited defense for the members of the board of directors of 

a public television station licensed to a Texas not-forprofit corporation, for they are the "operators" of the 

station. See, e.s., V.T.C.S. art. 1396-2.14 (the affairs of 

a nonprofit corporation shall be managed by a board of 

direct,ors). 

We also caution that in addition 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 

or group, the licensee shall, within 

reasonable time and in no event later thai 

one week after the attack, transmit to the 

persons or group attacked: 

(1) Notification of the date,, time and 

identification of the broadcast; 

(2) A script or tape (or an accurate 

summary if a script or tape is not available) 

of the attack: and 

(3) An offer of a reasonable opportunity 

to respond over the licensees' facilities. 

(b) The provisions of paragraph (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 in paragraph (b)(2) of 

this section and made by legally qualified 

candidates, their authorized spokespersons, 

or those associated with them in the 

campaign, on other such candidates, their 

authorized spokespersons or person associated 

with the candidates in the 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 in the foregoing programs. 

(c) The provisions ~of paragraph (a) of 

this section shall be applicable to editorials of the licensee, except in the case 

of noncommercial educational stations since 

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Honorable Hugh Parmer - Page 8 (JM-951) 

they .are precluded from~ editorializing 

(section 399(a), Communications Act). 

47 C.F.R. 5 73.1920. 

A violation of this rule will not result in civil 

liability, but it may cause the Communications Commission to 

revoke the license of a public broadcaster. 

SUMMARY 

~The Charitable Immunity and Liability '. 

Act of 1987, Civ. Prac. & Rem. Code ch. 84, 

may provide for immunity to volunteers 

serving as members of the boards of directors 

of public broadcasters. Whether the Act 

applies to a public broadcasting station, its 

employees, and volunteers is a question 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 9 73.004. 

Very truly yo s d A;, jk JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

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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