JIM MATTOX Attorney General

Supreme Court Building P.0. 80X 12548 Austin, TX. 78711. 2548 512/475-2501 Telex 9101874-1367 Telecopier 512,475.0266

714Jackson, Suite 700 Dallas, TX. 75202-4506 2141742.8944

4824 Alberta Ave.. Suite 160 ElPaso. TX. 79905.2793 9?5/533-3484

201 Texas, Suite 700 uston. TX. 77002.3111 r3l223.5686

806 Broadway, Suite 312 Lubbock, TX. 79401.3479 8061747-5238

4309 N.Tenth, Suite B McAllen. TX. 78501.1685 5121682-4547

200Main Plaza. Suite 400 San Antonio. TX. 78205.2797 512f2254191

An Equal Opportunity/ Affirmative Action Employer 

# TheAttorney General ofTexas
July 17. 1986

Mr.L. L. Bowman, III COlld.SsiOIl.‘2K Texas Savings &LosnDepartment 2601North Lamar, Suite 201 Austin, Texas 78705 Opinion No. JM-525
Re: Whether aperson appointed as conservator, supervisor, or liquidating agent under article 852a, V.T.C.S., is aState employee for purposes of chapter 104, of the Civil Practices andRemedies Code
DearMr. Boman:
Youaskabout ,theen;ployment status of conservators, supervisors, andliquidating agents appointed bythe Texas Savings andLoan Comissioner under sec.:Ilons 8.05, 8.08, 8.09, and 8.11 of article 852a, V.T.C.S. Inparticular you askwhether such persons are employees of the state for purposes of sections 104.001 and 104.008 of the Civil Practice andRemedies Code. Chapter 8of the Savings and Loan Act, article 852a, V.T.C.S., provides for the cegulation of savings and loan associations by the Texas Savings and Loan Department and the Savings and Loan ComisSiO*Sr. The comni_ssioner has authority, under specified circumstances, to appoint conservators, supervisors, andliquidating agents tooversee the affairs of particular savings andloan associations.
If the savings and loan commissioner has reasonable cause to believe that them: are grounds for intervention in the affairs of a savings and loan ,association, he may enter an order placing the affairs of that swings and loan association under the control of a conservator. V.T.C.S. art. 852a. 98.05(a)(4). Thepowers andduties of aconservator are set out in section 8.08 of article 852a:

(c) Theconservator andanydeputy or assistant conservatn'c appointed bythe commissioner, onbehalf of and under the supervision and direction of the comission~zr, shall take charge of the books, records, Fzperty, assets, liabilities, andbusiness of the association and shall conduct the business and affa::rs of the association. The conservator shall minertake the removal of the causes and conditions that necessitated the conservatorship. During the conservatorship, the conservator shall

p. 2410Mr. L. L. Bowman,III - Pa::e 2 (~~-525)

make such reports, to the commissioner as the commissioner reuiG. The conservator shall take necessary measuret?to preserve, protect. andrecover the assets orpropezrty-of the association, including claims or causes XEaction belonging to or that may beasserted bythe:association. Theconservator may deal with that Iroperty in the capacity of conservator andmay e:ile, prosecute, or defend against a suit by or against the association if the conservator considers this action necessary to protect the interested party or property affected by the suit.

. . . . (e) The commi;%;ioner shall determine the cost incident tothe conservatorship, andthis cost shall bepaid out of the:assets of the association as the comissior. directs. (Emphasis added).
V.T.C.S. art. 852a, §S.OS(c), (e). Also, the board of directors of asavings and loan association mayvoluntarily consent tc’ being placed under supervisory control. V.T.C.S. art. 852a, 58.11. :Cnthat case, the commissioner mayappoint asupervisor whohas the powers of aconservator under section 8.08. * Because the legislature defined a supervisor’s powers by reference to a conservator’s powers, we think that the legislature intended asupervisor’s powrs, like a conservator’s powers, 1to be subject tothe supervision anddirection of the comissioner. Also, section 8.11, like section l%..OB,provides that the cost of supervisory control “shall be fixed by the commissioner andpaid by the association.”

1. Before August 26, 1985, the commissioner hadnoauthority to appoint conservators or liquidating agents, but hedid have authority, with the consent of the board of directors of the savings and loan association, to appoint a supervisory agent for aparticular savings andloan association. Acts 1977, 65th Leg., ch. 239, at 642 (codified
as article 852a. 58.18; deleted byActs 1985, 69th Leg., ch. 231, at 1929). Asupervisory ager,t had essentially the same function as a supervisor has under the 1985 revision of chapter 8of article 852a. Theprior provision authorj.zing the appointment of supervisory agents explicitly made them subject to the instructions and supervision of the cormnissioner. Acts 1977, 65th Leg., ch. 289, at 644.

p. 2411Mr.L. L. Bowman,III - Pa$:e3 (JM-525)

If the commissioner Einds that a savings and loan association cannot be rehabilitated, he may issue an order of liquidation appointing a liquidating agent and dissolving the association. V.T.C.S. art. 852a, §8.09(11). Aliquidating agent, like aconservator 05 a supervisor, exercise:; his powers under the supervision of the commissioner. V.T.C.S. art. 852a, 58.09(c). The statutes governing liquidating agents donot specify howthe costs of liquidating agents are tobepaid.
Youaskwhether conservators, supervisors, andliquidating agents are "employees" for purpor,es of sections 104.001 and 104.008 of the Civil Practice andRemedies; Code. Section 104.001 provides:

Inacause of s.ction based onconduct described in section 104.0(5, the state is liable for actual damages, court &ts, andattorney's fees adjudged against:(1) an em]‘l.oyee, amemberof the governing board, or any (other officer institution, or department; (2) -- aformer employee, former memberof the governing board, or anyother former officer & astate agenc'L, institution, or department who was an emplovee or officer when the act or omission on -&ich the damages are based

- accursed; (3) aphyr;j.cian licensed'in this state who was performin;: services under a contract with the Disability Determination Division of the Texas Pehabilitation Conmission or the Texas Department cf Mental Health and Mental Retardation when the act or omission onwhich the damages ax'ebased occurred; (4) aperwn serving onthe governing board of afoundaticm. corporation, or association at the request andonbehalf of TheUniversity of Texas System; cr (5) the e:;tate of aperson listed in this section. (Elr.&sis added).
Section 104.002 provicies:

Thestate is liable under this chapter only if the damages are tzsed onanact or omission bythe person in the c&se and scope of the person's

p. 2412Mr. L. L. Bownan, III - Page 4 (JM-525)

office, employment, or contractual performance for or service onbehalf of the agency, institution, or department andif: (1) the damages arise out of a cause of action for n,+igence, except a wilful or wrongful act o'canact of gross negligence; or (2) the dz.u.ages arise out of a cause of action for de:,rivation of a right, privilege, or immunity sesxred bythe constitution or laws of this state or theUnited States, except when the court in its judgment or the jury in its verdict finds that the person acted in bad faith. (Empha:3:lsadded).
Section 104.008 provid#zs:

This chapter does not waive a defense, immunity, or jurizdictional bar available to the state or its offi,cers, employees, or cont+actors. (Emphasis added).
Thelegislature did no': define "employee" for purposes of section 104.002 or section 104.008 Iofthe Civil Practice and Remedies Code. ? Therefore, in defining "employee" for purposes of those provisions we mustrely oncontext andcommonusage. Government Code 53'11.011.
Section 104.001 is an indemnity statute, andthe consequence of determining that a person is an employee of the state is that the state becomes liable for damages based on certain conduct by the employee. See Civil Practice andRemedies Code §104.OC2. Therefore, it is usefumn determining the definition of "employee" for purposes of section 104.001 to look to definitions of "employee" in tort cases in which employer liabiliey depends on the tortfeasor's being an employee rather than an independent contractor. See also Civil Practice and Remedies Code 4101.001(l) (definition of "employee" for purposes ofTort Claims Act excludes "independent contractor").
In such cases the crucial test in determining whether someone is an employee is whether th2 employer has the right to control the details of the work. Newspapers Inc. v. Love, 380 S.W.2d 582, 591 (Tex. 1964). See alsoAtt~:rney General Cpinions H-160 (1973); ti-94 (1973). Also, it is the eight to control the details of the work rather than the exercise ;Erthat right that governs the issue of whether someone is an enployee. Great Western Drilling Co. v. Simmons, 302 S.W.2d 400, 403 (Tex. 1957). Aswepointed out above, the savings and loan commir;sioner, whois anemployee of the finance commission, has the right to control the work of conservators, supervisors, and liquidatirg agents. V.T.C.S. art. 852n, 558.08(c),

p. 2413,- Mr. L. L. Bowman,III - Page 5 (JM-525)

8.09(c): and 8.11; see also art. 342-205(a) (savings and loan commissioner is employee~?inance commission and subject to its orders and directions). 'Therefore, we think that conservators, supervisors and liquidating agents are "employees" for purposes of section 104.001. Since se':tion 104.008 uses the term "employees" in reference tothe other provisions of chapter 104of the Civil Practice and Remedies Code, it fo:llows that conservators, supervisors, and liquidating agents are "employees" for purposes of section 104.008 as well.
You are apparently concerned about the employment status of conservators andsuperviso~~s because conservators andsupervisors are paid out of the assets of aparticular savings and loan association. (The statutes donot speciEy howliquidating agents are to be paid.) Wedonot think that the soc.rce of payment determines the question of whether conservators andsupervisors are state employees. This office has noted before that, under some circumstances, "a person maybear the relationship of employlze to another even though the other is not paying his salary or wages." Attorney General Opinion H-94 (1973), citing J. A. Robinson Sons:-Inc. v. Wigart, 431 S.W.2d 327, 330 (Tex. 1968) (discussing matter of "borrowed servauts"). In Riverbend Country Club v. Patterson, 399 S.W.2d 382, 384 (Tex. Civ. App. - Eastland 1965, writ ref'd n.r.e.), the court upheld a finding that caddies were employees of a golf club even though the caddies were paid directly by the players. InMagnolia Petroleum Co. v. Francis, 169S.W.2d 286, 288 (Tex. Civ. App. - Beaumont 1943, writ ref'd), the court held that the fact that a shipowner paid employees during the time they worked for anotler did not establish that they were the shipowner's employees durirg that time. Likewise, in this case wedo not think that the fact that conservators andsupervisors are paid out of the assets of savings and loan associations precludes a finding that they are employees of the state.
We do note that article 342-205(b) contains the following language:
EachDeputy Se.vings andLoan Commissioner, the

Savings andLoan Examiners, each Hearing Officer, and all other officers and employees of the Savings and LoarTDepartment shall receive such compensation asis fixed bytheFinance Commission which shall -paid from the funds of the Savings andLoanDepartment --* (Emphasis added). That language was added tc article 342-205 byActs 1973, 63rd Leg., ch. 25, §l, at 37. The l.anguage in sections 8.08 and 8.11 that specifies that conservators andsupervisors shall be paid out of the assets of aparticular savings and loan association was added later. Acts 1985, 69th Leg., ~11.. 231, at 1929. Therefore, the later provisions that create employees whoare not paid out of the funds of

p. 2414Mr. L. L. Bowman,III - Page 6 (JM-525)

the Texas Savings andLoan Department should be read as exceptions to the general language of article 342-205. Stevens v. State, 159S.W. 505, 506 (Tex. Grin?. Apr. 1913) (where statutes conflict, later statute controls); Cuellar v. State, 521 S.W.2d 277, 279 (Tex. Grim. APP. 1975) (special statu% controls over general statute). Thus, article 342-205(b) does not preclude conservators andsupervisors from being employees of the state for purposes of sections 104.001 and 104.008 of the Civil Practjce andRemedies Code.
Because the savings and loan commissioner has the right to control the details of the work of conservators, supervisors, aud liquidating agents, weconclude that they are employees of the state for purposes of sections lC4.001 and 104.008 of the Civil Practice and Remedies Code.
SUMMARY

Conservators, sy'ervisors, and liquidating agents appointed under chapter 8of article 852a, V.T.C.S., are employees of the state for purposes of sections 104.001 and 104.00E of the Civil Practice andRemedies Code. 

# dt?Jf.&&

Attorney General of Texas
JACKHIGHTOWER First Assistant Attorney General
MARYKELLER Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committec~ Prepared bySarahWoelk Assistant Attorney General

p. 2415