. 

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 a muYoakum 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) 

Dear Ms. Lowrey: 

You present the following question: 

Can the City of Denver City, a home rule 

municipality, be held liable in a damage 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 is organized 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 for the establishment of 

public health districts. Section 4.01 provides: 

(a) By a majority vote of each governing 

body, a public health district may be established by: 

(1) two or more counties: 

(2) two or more incorporated municipalities: 

(3) a county and one or more incorporated 

municipalities situated therein; or 

P. 5612 
Honorable Linda Shoemaker Lowrey - Page 2 (JM-1077) 

. 

(4) two or more counties and one or more 

incorporated municipalities situated 

therein. 

V.T.C.S. art. 4436b, 5 4.01. The information accompanying 

your request indicates that Denver City is one of several 

governmental entities -- including several counties, several 

other cities, and a school district -- comprising the 

current membership of the health 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" in Texas. We do not understand you to ask, however, 

what sorts of conduct or conditions might fall within 

exceptions to governmental immunity and thus might result 

in liability for a responsible governmental unit. Rather we 

understand your question to be: assuming conduct of health 

district personnel, or conditions or use of property in its 

control, which would give rise to such liability, could a 

member city of the health district be held liable? 

As your 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 law might be held to create further exceptions to governmental immunity vis a vis the affairs of 

the health district. 

We note first that the provisions in the Local Public 

Health Reorganization Act regarding health districts contain no authorization for a health district to sue or be 

sued. Also, there is no authorization for such a district 

to levy taxes or issue bonds. V.T.C.S. art. 4436b, 

5s l-01-5.03. 

A health district therefore does not appear to be the 

sort of l'governmental unit" 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 4.05 provides for school districts "and other 

governmental entities" becoming members of a public health 

district. 

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Honorable Linda Shoemaker Lowrey - Page 3 (JM-1077) 

or uses of property.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" is defined in section 101.001 of 

the Tort Claims Act as: 

(A) this state and all the several agencies of government 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) a political 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 

and preservation 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 of government 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 in the state is liable 

for: 

(1) property damage, personal injury, and 

death proximately caused by the wrongful act 

or omission or the negligence of an employee 

acting within his scope of employment if: 

(A) the property damage, personal injury, or death arises from the operation 

(Footnote Continued) 

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Honorable Linda Shoemaker Lowrey - Page 4 (JM-1077) 

judgments in equal annual installments for a period of not 

more than five years" if the 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.) (a sheriff, having "no authority to levy an ad 

valorem tax for the purpose of paying a judgment" is not a 

"separate 'unit of government' against which suit should be 

brought and recovery be allowed II under the Tort Claims Act). 

We find no cases or attorney general opinions addressing the issue whether health districts are "units of government" under the Tort Claims Act, but we 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 of government," is apposite. The 

community centers were authorized to be established by contract among counties, cities, and hospital and school districts. The organizing contract was to provide for the constituting of a board of trustees. But the governing statute 

did not authorize the centers to sue or be sued, or to levy 

taxes or issue bonds. The opinion concluded: 

[I]t is our view that a community center is 

merely a component part of a 'unit of government' as defined in section 2 of the Texas 

Tort Claims Act. Such a center is simply a 

local agency created either by unilateral 

action or contract by or between designated 

local governmental bodies. It is our opinion 

that the legal effect of the Texas Tort 

Claims Act is not to impose direct liability 

(Footnote Continued) 

or use of a motor-driven vehicle or motordriven 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 

a condition or use of tangible personal or 

real property if the governmental unit would, 

were it a private person, be liable to the 

claimant according to Texas law. 

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Honorable Linda Shoemaker Lowrey - Page 5 (JM-1077) 

upon such an agency 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 or units. 

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 443613 are not authorized to sue or be sued or to levy taxes or issue bonds. The 

member cities, counties, etc., of a health district are 

authorized to provide by cooperative agreement for the 

organization and operation of the health district -- including payment of costs by the members "necessary for implementation of the public health district" -- the creation of an 

administrative or advisory "public health board," and the 

appointment of a director of the district. V.T.C.S. article 

4436b, 55 4.03, 4.06. A district is authorized "to perform 

the public health functions that any of its members is 

authorized to perform 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 "to promote and preserve the health and safety of the public," but 

the rules may not conflict with state law or with ordinances 

of member cities or counties. V.T.C.S. art. 4436b, § 4.03. 

We do not believe a public health district is a governmental unit under the provisions of the Tort Claims Act, or 

that it has a legal status independent of its members such 

that the latter would be insulated from liability arising 

from conduct of the district's personnel or the condition or 

use of its property under the Tort Claims Act. Civ. Prac. & 

Rem. Code 5 101.001. 

It is our opinion that a member city of a health district could be held liable for conduct of health district 

personnel or conditions or use of its property which would 

be grounds for liability under the Tort Claims Act. 

3. In 1979, the legislature added a subsection 3.01(c) 

to V.T.C.S. article 5547-203 to provide specifically that 

community health centers were units of government under the 

Tort Claims Act. Acts 1979, 66th Leg., ch. 797, at 2028. 

p. 5616 
Honorable Linda Shoemaker Lowrey - Page 6 (JM-1077) 

SUMMARY 

A member city of a public 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 of health district personnel or for 

the condition or use of property under the 

control of the health district. 

Very truly yo , J-h . 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEARLEY 

Special .Assistant Attorney General 

RICK GILPIN 

Chairman, opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

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