QBffice of tfy !Zlttornep @enera 

iMate of &exaii 

March 16, 1993 DAN MORALES 

. ATTORSEY GESERAL 

MsMarysapP . 

Executive Director 

Texas Department on Aging 

P.O. Box 12786 

Austin, Texas 78711 

Opiion No. DM-206 

Re: Whether the Human Resources 

Code section 101.063 provides immunity 

to vohmteer ombudsmen in the Texas 

Department on Aging long term care 

o~-program w-w 

Dedr Ms. sapp: 

You seek clariftcation of Attorney General Opiion DM-173 (1992) which 

addresses the immunby of vohmteer ombudsmen in the Texas Department on Aging long 

term care ombudsman program. In that opinion we concluded that volunteer ombudsmen 

pardcipating in the program are immune from suit while in the good faith performance of 

their official duties. Hum. Res. Code 5 101.063. 

You have informed us that prior to becoming a certhkd volunteer ombudsman 

individuals routinely serve a three month internship under the supervision of a professional 

staff person or an experienced cutifkd voluatecr. You further state that the ombudsman 

progmn wntains a class ofvohmteers referred to as &iendly visitotn. Their tin&m is to 

visit residents in nursing fkcikies on an inddlnite basis. Friendly visitors do not perform 

complaint investigations and receive little or no supervision You ask if individuals 

aervingineitherofthesecategoriesare hnrnune6omauitasdkussedinAttomeyGeneral 

OphdonDM-173. Weamchrdethatthevohmteerssavingintheimem&ipprogmtnare 

hnnnmefiomaubforcivildamagesorcrhmnalpro~ontieinthecourseofgood 

full peIfolmancc of their official duties. 

Human Resomces Code chapter 101. subchapter C. created the State of Texas 

Long Term Care Ombudsman O&e. Hum. Res. Code glOl.052. Chapter 101, 

plkbrptac,ansrdoptsdtocontormtheLwrofthis~etathe~ofthe 

federal Older Americans Act of 1965 (“the act”). Id. 5 101.053(a). The act rquires that 

states participating in plans to monitor the provision of health and social s&ces for the 

daiyestablishastatelongtermcuro~ progmn. 42 USC. 5 3021 et sq. In 

pursuit of its responsibiities, the office of the ombudsman is authorized to recruit 

volunteers and citizens’ organizations to participate in the ombudsman program. Hum. 

p. 1084 
Ms.MarySapp-Page2 @M-2063 

Rcs. Code $101.056(a); 40 T.&C. 5 299.9(b)(S) - (6); (c)(l); (8).’ Section 101.056 of 

theHuman- code provides: 

(a) The office shall recruit vohmteers and citkun organidons 

toparticipateintkombudsmanprogram. Aprddsta!Tmembmofrn 

areaagencyonagingnetworkoranonprofitsocialserviceagency 

mrybemombudmm. Anomh&manisampr~~the 

o#ce. 

(b) The oaice shall provide training to ombudsmen as required 

by this subchaptw and fedml law.’ @Zmpbasis added.] 

The fedual Older heri- Act of 1965 liuther provided that “[t]he Stste will 

ensure that no repwentutive [of the office of the State Long Term Que Ombudsman] wiIl 

be liable under State law for the good faith perfomance of official duties.” 42 U.S.C. 

5 3027(a)(12)0 (emphasis added). A repmmative is d&cd as standing or acting for 

another espedly through delegated authority. wIEB!mR~~NEw~GIA~ 

DIIXIONARY 1000 (1983). The tmn is interchangeable with agent. BLACK’~ LAW 

DI~ONARY 1170 (5th ed. 1979). We conclude that as reprwtives of the of&c of 

the ombudsman, the interns are immune from suit while in the good faith performance of 

their duties. 

Furthemmre, House Bill 541 of the 71st Legihture enacted Human Resow= 

Code chapter 101, subchapter C and section 101.062. The bill an&h states in part: 

ThefsdenIiawrcquiwesch~toprovidetbapogmmaceeastoresidentsofmusinghontmmdtopmvi& 

immunt~jbr whmteer andstqf. @mphasis added.] 

House Comrn. on Rethmqt and Aging, Bill Anaiyb,‘ C.S.HB. 541, 7lst Leg. (1989) 

(byReps.llichdmandRobnett). whikitisdartbtintemspPticiprtiaeinthe 

prognm= imauneframsui&waareunclearwlmtlwtksameistnteforindividuels 
Ms.MarySapp - Page 3 (DH-206) 

participating in the program as friendly visitors. You have not provided us with su5cient 

iahmation to address your question with regard to this group, therefon we shall reserve 

our response. 

You also ask whether the 05ce of the Attorney General would be responsible for 

representation of the state ombudsman volunteer ombudsmen, interns and flkndly visitors 

“in the event of legal action taken against them in their official or individwl capachy.” 

Section 101.055 of the Human Resources Code provides that the Depatttnent on Aging 

shall ensure that the office of the ombudsman receives adequate legal advice and 

mmntation. Ftuthemtore, as an employee of the state, the ombudsman is entitled to 

iii legal counsel of the attorney general. Cii. Prac. & Rem. Code 05 104.001,104.004. 

The Human Resources Code and the Civil Pmctice and Remedies Code make no mention 

of attorney genetal representation for volunteers. However, we are of tbe opinion that 

this office should provide legal counsel to designated representatives of the state 

ombudsman as provided for in the 1992 amendments to the federal Older Americans Act. 

Therefo~ we urge that you seek legislative claritkation of this matter by introducing 

amendments to chapter 101 of the Human Resources Code to reflect the 1992 

amendments to the Older Americans Act. In the absence of such legislation we are unable 

to provide a response to your second inquiry. 

SUMMARY 

Section 101.063 of the Human Resources Code, which provides 

that an ombudsman is not liable for civil damages or subject to 

crimind prosecution for good faith acts perfomed in the course of 

his or her official duties, applies to interns in the vohmteer 

ombudsman program. 

Tkstateoxhdsmmisenthledto&gal~~mthe 

o5ceoftheAttomeyGenerai. ThismpmsmWionwiuonlybe 

provided in instances where the action is being sought against the 

individual in his 05&l capacity. 

, 

p. 1086 

DAN MORALES 

Attorney General of Texas 
Ms.MarySapp - Page 4 (DM-206) 

WILL PRYOR 

Fii Assistant Attorney Gcnd 

MARYKELLER 

Deputy Attorney Oeneral for Litigation 

RENEAHIcKs 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Toya C. Cook 

Assistant Attorney General 

p. 1087