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### THE ATTORNEY GENERAL OF TEXAS

July 31, 1989

Honorable Linda Shoemaker Lowrey Opinion No. JM-1077 Criminal District Attorney 121st Judicial District Re: Liability of amuYoakum County nicipality for acts of P. 0. Box 359 employees of a public Plains, Texas 79355 health district of which the city is a member (RQ-1555)
DearMs. Lowrey:
You present the following question:
Can the City of Denver City, ahome rule municipality, beheld liable inadamage suit brought for the negligence of the South Plains'Public Health District or one of its employees acting on behalf of the South Plains Public Health District? Information provided with your request indicates that the South Plains Public Health District isorganized under V.T.C.S. article 443633,the Local Public Health Reorganization Act. Acts 1983, 68th Leg., ch. 190, at 797 as amended. Article IV of the Act provides forthe establishment of public health districts. Section 4.01 provides:

(a) By amajority vote of each governing body, apublic health district may be established by: (1) two ormore counties: (2) two ormore incorporated municipalities: (3) acounty and one ormore incorporated municipalities situated therein; or

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. (4) two ormore counties and one or more

incorporated municipalities situated therein.
V.T.C.S. art. 4436b, 54.01. The information accompanying your request indicates that Denver City isone of several governmental entities -- including several counties, several other cities, and a school district -- comprising the current membership of thehealth district.1 The discussion submitted with your request refers to various provisions of the Texas Tort Claims Act, Civil Practice and Remedies Code, chapter 101,which provides for limited waiver of the governmental immunity of *~governmental units" inTexas. We do not understand you to ask, however, what sorts of conduct or conditions might fall within exceptions to governmental immunity and thusmight result in liability fora responsible governmental unit. Rather we understand your question tobe: assuming conduct of health district personnel, or conditions oruse ofproperty in its control, which would give rise to such liability, could a member city of the health district be held liable?
Asyour discussion refers exclusively to liability under the Tort Claims Act, we limit this opinion to potential liability under that act and will not speculate as to what other provisions of lawmight beheld to create further exceptions to governmental immunity vis avis the affairs of thehealth district.
We note first that the provisions inthe Local Public Health Reorganization Act regarding health districts contain no authorization fora health district to sue or be sued. Also, there isno authorization for such a district to levy taxes or issue bonds. V.T.C.S. art. 4436b, 5s l-01-5.03.
Ahealth district therefore does not appear tobe the sort of l'governmentalunit" contemplated by the Tort Claims Act. The latter act provides in section 101.021 of the Civil Practice and Remedies Code that "governmental units" shall be liable for certain conduct and certain conditions

1. Section 4.05provides for school districts "and other governmental entities" becoming members of apublic health district.

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oruses ofproperty.2 Section 101.107, regarding payment of judgments under the Tort Claims Act by a "governmental unit," provides that "the governmental unit may pay the

2. "Governmental unit" isdefined in section 101.001 of the Tort Claims Act as:

(A)this state and all the several agencies ofgovernment that collectively constitute the government of this state, including other tions, agencies bearing different designaand all departments, bureaus, boards, commissions, offices, agencies, councils, and courts: (B)apolitical subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control andpreservation district, freshwater district, navigation district, supply conservation and reclamation district, soil conservation district, communication district and river authority; and (C)any other institution, agency, or organ ofgovernment the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution. Section 101.021 provides unit" as follows: for liability of a "governmental

A governmental unit inthe state is liable for: (1)property damage, personal injury, and death proximately caused by thewrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A)the property damage, personal injury, ordeath arises fromthe operation (Footnote Continued)

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judgments in **equal** annual installments for aperiod of not more than fiveyears" ifthe amount of judgments in one year, excluding amounts payable by an insurer, "exceeds one percent of the unit's budaeted tax f ds" for the **year,** excluding debt service. (Emphasis add::.) Civ. Prac. & Rem. Code § 101.107(c). See also County of Brazoria v. Radtke, 566 S.W.Zd 326 (Tex.Civ.App. -Beaumont 1978,writ ref'd n.r.e.) (asheriff, having "noauthority to levy an ad valorem tax for the purpose of paying a judgment" isnot **a** "separate 'unitofgovernment' against which suit should be brought and recovery be allowedII under the Tort Claims Act).
We find no cases or attorney general opinions addressing the issuewhether health districts are "units ofgovernment" under the Tort Claims Act, butwe believe that Attorney General Opinion M-538 (1969),which considered whether community health centers established under V.T.C.S. article 5547-203 were such "units ofgovernment," isapposite. The community centers were authorized tobe established by contract among counties, cities, andhospital and school districts. The organizing contract was toprovide for the constituting of aboard of trustees. But the governing statute did not authorize the centers to sue orbe sued, or to levy **taxes** or issuebonds. The opinion concluded:

[I]t isourview that a community center is merely a component part of a 'unitof government' asdefined in section 2 of the Texas Tort Claims Act. Such acenter is simply a local agency created either by unilateral action or contract by orbetween designated local governmental bodies. It isour opinion that the legal effect of the Texas Tort Claims Act isnot to impose direct liability

(Footnote Continued)

oruse of amotor-driven vehicle ormotordriven equipment; and (B)the employee would be personally **liable** to the claimant according to Texas law: and (2)personal injury and death so caused by acondition or use of tangible personal or real property ifthe governmental unit would, were ita private person, be liable to the claimant according to Texas law.

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upon such anagency as such, but rather that any tortious conduct attributable to an employee, officer or agent of a community center would be the responsibility and liability of the creating local governmental unit orunits. Attorney General Opinion M-538 (1969) at 3-4. See also Attorney General Opinions H-291 (1974);H-735 (1975)? Similarly, as previously stated, public health districts created under V.T.C.S. article 443613are not authorized to sue orbe sued or to levy taxes or issue bonds. The member cities, counties, etc., of ahealth district are authorized to provide by cooperative agreement for the organization and operation of thehealth district -- includingpayment of costs by themembers "necessary for implementation of the public health district" -- the creation of an administrative or advisory "public health board," and the appointment ofadirector of the district. V.T.C.S. article 4436b, 55 4.03, 4.06. A district isauthorized "to perform the public health functions that any of its members is authorized toperform unless otherwise restricted by law." V.T.C.S. art. 4436b, §4.02. The public health board is authorized to adopt rules necessary and appropriate "topromote and preserve the health and safety of the public," but the rulesmay not conflict with state law orwith ordinances ofmember cities or counties. V.T.C.S. art. 4436b, §4.03.
We do notbelieve apublic health district isagovernmental unit under the provisions of the Tort Claims Act, or that ithas a legal status independent of itsmembers such that the latter would be insulated from liability arising fromconduct of the district's personnel or the condition or use of itsproperty under the Tort Claims Act. Civ. Prac. & Rem. Code 5 101.001.
It isour opinion that a member city ofahealth district could be held liable for conduct ofhealth district personnel or conditions oruse of itsproperty which would be grounds for liability under the Tort Claims Act.

3. In 1979, the legislature added a subsection 3.01(c) toV.T.C.S. article 5547-203 to provide specifically that community health centers were units ofgovernment under the Tort Claims Act. Acts 1979, 66th Leg., ch. 797, at 2028.

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SUMMARY
Amember city ofapublic health district created under V.T.C.S. article 4436b could be held liable under the Tort Claims Act, Civil Practice and Remedies Code chapter 101, for conduct ofhealth district personnel or for the condition or use of property under the control of thehealth district. Very truly yo , 

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JIM MATTOX Attorney General of Texas
MARY KELLER First Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY Special .AssistantAttorney General
RICK GILPIN Chairman, opinion Committee Prepared byWilliam Walker Assistant Attorney General

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