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 

714 Jackson, Suite 700 

Dallas, TX. 75202-4506 

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El Paso. TX. 79905.2793 

9?5/533-3484 

201 Texas, Suite 700 

uston. TX. 77002.3111 

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806 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

8061747-5238 

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McAllen. TX. 78501.1685 

5121682-4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 78205.2797 

512f2254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

July 17. 1986 

Mr. L. L. Bowman, III 

COlld.SsiOIl.‘2K 

Texas Savings & Losn Department 

2601 North Lamar, Suite 201 

Austin, Texas 78705 

Opinion No. JM-525 

Re: Whether a person appointed as 

conservator, supervisor, or liquidating agent under article 852a, 

V.T.C.S., is a State employee for 

purposes of chapter 104, of the 

Civil Practices and Remedies Code 

Dear Mr. Boman: 

You ask about ,the en;ployment status of conservators, supervisors, 

and liquidating agents appointed by the Texas Savings and Loan Comissioner under sec.:Ilons 8.05, 8.08, 8.09, and 8.11 of article 852a, 

V.T.C.S. In particular you ask whether such persons are employees of 

the state for purposes of sections 104.001 and 104.008 of the Civil 

Practice and Remedies Code. 

Chapter 8 of 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, and liquidating agents 

to oversee the affairs of particular savings and loan 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). The powers and duties 

of a conservator are set out in section 8.08 of article 852a: 

(c) The conservator and any deputy or assistant 

conservatn'c appointed by the commissioner, on behalf 

of and under the supervision and direction of the 

comission~zr, shall take charge of the books, 

records, Fzperty, assets, liabilities, and business 

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

make such reports, to the commissioner as the commissioner re uiG. The conservator shall take 

necessary measuret?to preserve, protect. and recover 

the assets or propezrty-of the association, including 

claims or causes XE action belonging to or that may 

be asserted by the: association. The conservator may 

deal with that Iroperty in the capacity of conservator and may 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 to the conservatorship, and this cost shall 

be paid 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 a savings and loan association 

may voluntarily consent tc’ being placed under supervisory control. 

V.T.C.S. art. 852a, 58.11. :Cn that case, the commissioner may appoint 

a supervisor who has the powers of a conservator 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 a supervisor’s powrs, like a conservator’s powers, 

1 to be 

subject to the supervision and direction of the comissioner. Also, 

section 8.11, like section l%..OB, provides that the cost of supervisory 

control “shall be fixed by the commissioner and paid by the association.” 

1. Before August 26, 1985, the commissioner had no authority to 

appoint conservators or liquidating agents, but he did have authority, 

with the consent of the board of directors of the savings and loan 

association, to appoint a supervisory agent for a particular savings 

and loan association. Acts 1977, 65th Leg., ch. 239, at 642 (codified 

as article 852a. 58.18; deleted by Acts 1985, 69th Leg., ch. 231, at 

1929). A supervisory ager,t had essentially the same function as a 

supervisor has under the 1985 revision of chapter 8 of article 852a. 

The prior 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. 2411 
Mr. L. L. Bowman, III - Pa$:e 3 (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). A liquidating agent, like a conservator 

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 do not specify how the costs of liquidating agents 

are to be paid. 

You ask whether conservators, supervisors, and liquidating agents 

are "employees" for purpor,es of sections 104.001 and 104.008 of the 

Civil Practice and Remedies; Code. Section 104.001 provides: 

In a cause of s.ction based on conduct described 

in section 104.0(5, the state is liable for actual 

damages, court &ts, and attorney's fees adjudged 

against: 

(1) an em]‘l.oyee, a member of the governing 

board, or any (other officer 

institution, or department; 

(2) -- 

a former employee, former member of the 

governing board, or any other former officer & 

a state agenc'L, institution, or department who 

was an emplovee or officer when the act or 

omission on -&ich the damages are based 

accursed; - 

(3) a phyr;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 on which 

the damages ax'e based occurred; 

(4) a perwn serving on the governing board 

of a foundaticm. corporation, or association at 

the request and on behalf of The University of 

Texas System; cr 

(5) the e:;tate of a person listed in this 

section. (Elr.&sis added). 

Section 104.002 provicies: 

The state is liable under this chapter only if 

the damages are tzsed on an act or omission by the 

person in the c&se and scope of the person's 

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

office, employment, or contractual performance for 

or service on behalf of the agency, institution, 

or department and if: 

(1) the damages arise out of a cause of 

action for n,+igence, except a wilful or 

wrongful act o'c an act 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 by the constitution or laws 

of this state or the United States, except when 

the court in its judgment or the jury in its 

verdict finds that the person acted in bad 

faith. (Empha:3:ls added). 

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). 

The legislature did no': define "employee" for purposes of section 

104.002 or section 104.008 Iof the Civil Practice and Remedies Code. ? 

Therefore, in defining "employee" for purposes of those provisions we 

must rely on context and common usage. Government Code 53'11.011. 

Section 104.001 is an indemnity statute, and the 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 and Remedies 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 of Tort 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 ;Er that 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). As we pointed out above, 

the savings and loan commir;sioner, who is an employee 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 to the other provisions of chapter 104 of 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 and superviso~~s because conservators and supervisors are 

paid out of the assets of a particular savings and loan association. 

(The statutes do not speciEy how liquidating agents are to be paid.) 

We do not think that the soc.rce of payment determines the question of 

whether conservators and supervisors are state employees. This office 

has noted before that, under some circumstances, "a person may bear 

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. In Magnolia Petroleum Co. v. Francis, 

169 S.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 we do 

not think that the fact that conservators and supervisors 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: 

Each Deputy Se.vings and Loan Commissioner, the 

Savings and Loan Examiners, each Hearing Officer, 

and all other officers and employees of the 

Savings and LoarT Department shall receive such 

compensation as is fixed by the Finance Commission 

which shall -paid from the funds of the Savings 

and Loan Department --* (Emphasis added). 

That language was added tc article 342-205 by Acts 1973, 63rd Leg., 

ch. 25, §l, at 37. The l.anguage in sections 8.08 and 8.11 that 

specifies that conservators and supervisors shall be paid out of the 

assets of a particular savings and loan association was added later. 

Acts 1985, 69th Leg., ~11.. 231, at 1929. Therefore, the later 

provisions that create employees who are not paid out of the funds of 

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

the Texas Savings and Loan Department should be read as exceptions to 

the general language of article 342-205. Stevens v. State, 159 S.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 and supervisors from 

being employees of the state for purposes of sections 104.001 and 

104.008 of the Civil Practjce and Remedies Code. 

Because the savings and loan commissioner has the right to 

control the details of the work of conservators, supervisors, aud 

liquidating agents, we conclude 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 8 of article 852a, V.T.C.S., 

are employees of the state for purposes of sections 

104.001 and 104.00E of the Civil Practice and Remedies 

Code. 

dt?Jf.&& 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committec~ 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2415