Untitled Texas Attorney General Opinion: KP-0243

KEN PAXTON

ATTORNEY GENERAL OF TEXAS

March 4, 2019
Sherif Zaafran, M.D. Opinion No. KP-0243
President
Texas Medical Board Re: Whether members of the Physician Health
Post Office Box 2018 and Rehabilitation Advisory Committee are

Austin, Texas 78768-2018 entitled to legal representation by the Office of
the Attorney General and indemnification under
the Civil Practice and Remedies Code
(RQ-0248-KP)

Dear Dr. Zaafran:

You ask whether chapters 104 and 108 of the Civil Practice and Remedies Code require
the State to indemnify and defend members of the-Physician Health and Rehabilitation Advisory
Committee (“Advisory Committee”).! The Advisory Committee is part of the Texas Physician
Health Program (“Program”), a program created by chapter 167 of the Occupations Code to
promote physician and physician assistant wellness and the treatment of health conditions that
compromise their ability to practice medicine. See TEx. OCC. CODE §§ 167.001, .005(a). Chapter
167 establishes a governing board for the Program (“Governing Board”) and tasks this entity with
many responsibilities, including establishing policies and procedures to administer the Program,
providing advice and counsel to the Texas Medical Board, and appointing qualified physicians to
serve on the Advisory Committee. Id. §§ 167.001(2), .003(b), .004(a); see also id. § 151.002(a)(1).
' Chapter 167 also establishes the Advisory Committee and tasks it with two duties, providing
recommendations upon the request of the Governing Board and providing advice and counsel to
the Texas Medical Board about: implementation of the Program. Jd. §§ 167.004(b), .006.
Administrative regulations also authorize designated members of the Advisory Committee to
conduct eligibility interviews for applicants seeking to participate in the Program and provide that _
the members serve at the pleasure of the Governing Board. See 22 TEX. ADMIN. CODE

§§ 180.3(b)(1)(B), .4(9C1).

We first consider your question under chapter 104 of the Civil Practice and Remedies Code.
Chapter 104 provides that the State will indemnify and defend certain state employees, contractors,

and officers in legal actions based on an action or omission committed during the individual’s

service to the State, with certain qualifications irrelevant here. See TEX. Civ. PRAC. & REM. CODE -
§§ 104.001 (listing persons entitled to indemnification), 104.002 (describing conduct covered by

'See Letter from Sherif Zaafran, M.D., President, Tex. Med. Bd., to Honorable Ken Paxton, Tex. Att’y Gen.
(Sept. 5, 2018), https://www2.texasattornieygeneral.gov/opinion/requests-for-opinion-rgs (“Request Letter”).
Sherif Zaafran, M.D. - Page 2 (KP-0243)

indemnification). Section 104.001 lists categories of persons entitled to indemnification under
chapter 104, including in relevant part: ,

(1) an employee, a member of the governing board, or any other
officer of a state agency, institution, or department;

(2) a former employee, former member of the governing board, or
any other former officer of a state agency, institution, or department
who was an employee or officer when the act or omission on which
the damages are based occurred; [or]

(3) a physician or psychiatrist licensed in this state who was
performing services under a contract with any state agency,
institution, or department ... .

Id. § 104.001(1)-(3). Persons listed under section 104.001 receive indemnification regardless of
whether they performed their services for compensation. Jd. The Attorney General must defend
any person entitled to indemnification under chapter 104. Jd. § 104.004(a).

We tum to whether members of the Advisory Committee fall within any category of
persons covered by indemnification under section 104.001. To be entitled to indemnification
under the relevant provisions of chapter 104, members of the Advisory Committee must be current
or former employees, state officers, or members of a governing board or physicians who are
performing services under a contract with a state governmental entity. See id. § 104.001(1)+(3).
This office previously concluded that members of a board are likely not employees for purposes
of chapter 104. Tex. Att’y Gen. Op. No. JM-1092 (1989) at 8. And you have not provided any
information suggesting that these physicians serve under a contract with the State. See Request
Letter at 1-4. Additionally, while subsection 104.001(1) extends protections to the “governing
board” of a state agency, institution, or department, chapter 167 does not define the Advisory
Committee as the governing board for the Program. Compare TEX. OCC. CODE § 167.001(2)
(defining “governing board” for the Program), with id. § 167.001(1) (defining “committee” as the
Advisory Committee).

The critical question therefore is whether the Advisory Board members are “officer[s] of a
state agency, institution, or department,” the remaining relevant category of persons entitled to
indemnification under section 104.001. See TEX. Clv. PRAC. & REM. CODE § 104.001(1). Chapter
104 does not define the term “officer.” However, in Aldine Independent School District v.
Standley, the Texas Supreme Court adopted a standard by which to determine whether a person
occupying a particular position is an officer. 280 S.W.2d 578, 583 (Tex. 1955). Although this
case examined the question of public office in the context of article V, section 24 of the Texas
Constitution, courts subsequently applied the standard developed in Aldine to various statutes,
including provisions in the Election Code, the Civil Service Act, and the nepotism statute. See
Tex. Att’y Gen. Op. No. GA-0365 (2005) at 4-5. In addition to judicial opinions, this office has
utilized the Aldine test in other statutory contexts. See, e.g., Tex. Att?y Gen. Op. No. GA-0284
(2004) at 2-3 (applying Aldine standard to conclude that members of a water district’s board of
directors were “officers” pursuant to several provisions of the Water Code). Under the Aldine
Sherif Zaafran, M.D. - Page 3 (KP-0243)

standard, the “determining factor [that] distinguishes a public officer . . . is whether any sovereign
function of the government is conferred upon the individual to be exercised by him [or her] for the
benefit of the public largely independent of the control of others.” Aldine, 280 S.W.2d at 583.
Applying Aldine in the context of advisory boards, this office concluded that members of such
entities are not officers if their duties are truly advisory because “an individual who serves in a
merely advisory capacity does not exercise sovereign powers independent of the control of others.”
Tex. Att’y Gen. Op. No. GA-0021 (2003) at 5 (quotation marks omitted). However, if an advisory
board “exercises some part of the sovereign authority of the state largely independent of the control
of others,” then that entity “is. not truly advisory, regardless of whatever name the board or
commission is given.” Jd. at 6. Determining whether a member of an advisory board is an officer
therefore requires a case-by-case analysis of the authority provided to the entity. See id.

Chapter 167 vests the Advisory Committee with the authority only to assist and advise the
Governing Board and the Texas Medical Board in various tasks, including the adoption of rules,
policies, and guidelines. See TEX. OCC. CODE §§ 167.004(b), .006; see also 22 TEX. ADMIN. CODE
§ 180.3(b)(2) (“The committee shall provide opinions upon request... .”). The Governing Board
and the Texas Medical Board, however, retain ultimate statutory authority over these decisions.
See TEX. Occ. CODE §§ 167.003, .006; see also 22 TEX. ADMIN. CODE § 180.3(a)(2)(B). Similarly,
while administrative rules authorize a member of the Advisory Committee to interview applicants
to determine eligibility, members are authorized to perform this function only as a designee of the
Program’s medical director. See 22 TEX. ADMIN. CODE § 180.4(f)(1)(A); see also TEX. OCC. CODE
§ 167.004(b) (“The committee shall assist the governing board by making recommendations on
the request of the governing board.” (emphasis added)); 22 TEX. ADMIN. CODE § 180.4(f)(1)(C)
(“Advisory committee members are to be given records only in relation to those individuals that
they have been assigned to review.” (emphasis added)). Additionally, any agreement to accept an
applicant into the Program is “subject to review by the Governing Board.” 22 TEX. ADMIN. CODE
§ 180.4(f)(5). A person is not an officer if his or her actions are subject to control by another. Tex.
Att’y Gen. Op. No. GA-0738 (2009) at 3; see also Aldine, 280 S.W.2d at 583. Moreover, a prior
opinion of this office recognized that ordinarily a “public officer” designation does not apply when
. the individual “may be terminated at will by a superior body.” Tex. Att’y Gen. Op. No. GA-0393

(2006) at 3; see Tex. Att?y Gen. Op. No. KP-0122 (2016) at 2. As the Advisory Committee
members serve at the pleasure of the Governing Board and do not exercise authority independent
of others, they serve merely in an advisory capacity and are therefore not officers under Aldine.
See Tex. Att’y Gen. Op. No. GA-0021 (2003) at 5. Accordingly, a court would likely conclude
that the Advisory Committee members do not fall within any of the categories of persons entitled
to indemnification under chapter 104.?

You additionally ask whether the Advisory Committee members qualify for the limitations
on liability established under chapter 108 of the Civil Practice and Remedies Code. Request Letter
at 1; see TEX. Civ. PRAc. & REM. CobDE §§ 108.001—.004. Chapter 108, in relevant part, generally

?Attorney General Opinion DM-409 concluded that members of the Advisory Commission on State
Emergency Communications are entitled to indemnity under chapter 104 of the Civil Practice and Remedies Code.
Tex. Att’y Gen. Op. No. DM-409 (1996) at 7. The Commission’s role and responsibilities were different from the
Advisory Committee at issue here, and that opinion did not address the specific responsibilities of the Commission
under the Aldine standard. Thus, we decline to extend the conclusions of DM-409 to answer this question.
Sherif Zaafran, M.D. - Page 4 (KP-0243)

provides that a “public servant is not personally liable for damages in excess of $100,000” arising
from certain injuries if the damages are the result of an act or omission by the public servant in the
course and scope of the individual’s service on behalf of a governmental entity and the public
servant is covered “for the amount not in excess of $100,000” by the State’s obligation to
indemnify under chapter 104 or an insurance policy. TEX. Civ. PRAC. & REM. CODE § 108.002(a)
(emphasis added). Chapter 108 defines “public servant,” in relevant part, as a person who is:

(A) a public official elected ot appointed to serve a governmental
unit and acting in that capacity when the act or omission on
which the damages were based occurred; or

(B) covered by Section 104.001 or Section 102.001.

Id. § 108.001(1) (emphases added). As chapter 102 of the Civil Practice and Remedies Code
applies only to local government entities and, as discussed above, chapter 104 also likely does not
apply, the relevant questions therefore are whether an Advisory Committee member has the
specified insurance coverage and is a “public official . . . appointed to serve a governmental unit.”
See id. The statute does not define “public official,” and neither a court nor this office has
construed the term for purposes of chapter 108. Courts typically give undefined terms in a statute
their ordinary meaning. See Wal-Mart Stores, Inc. v. Forte, 497 S.W.3d 460, 471 (Tex. 2016). To
determine the ordinary meaning of a statutory term, courts “typically look first to their dictionary
definitions and then consider the term’s usage in other statutes, court decisions, and similar
authorities.” Harris Cty. Appraisal Dist. v. Tex. Workforce Comm’n, 519 S.W.3d 113, 129 (Tex.
2017). However, a court will not give an undefined term “a meaning that is out of harmony or
inconsistent” with other terms in the statute. Jd.

Black’s Law Dictionary defines “public official” as “[s]}omeone who holds or is invested
with a public office; a person elected or appointed to carry out some portion of a government’s
sovereign powers.” BLACK’S LAW DICTIONARY 1259 (10th ed. 2014). This definition is arguably
broader than the standard in Aldine. See Aldine, 280 S.W.2d at 583 (requiring that public officers
have both (1) sovereign authority; and (2) the ability to exercise that authority independent of
others’ control). From examining definitions of public official in the context of other statutes and
libel suits, this office has likewise noted that the term public official generally “is as at least as
broad as, or, in some circumstances, broader than, that of public officer. While every public officer
is a public official, the reverse is not necessarily true.” Tex. Att’y Gen. Op. No. GA-0169 (2004)
at 4. Looking to section 108.001 as a whole for guidance in construing the term, the statute
expressly extends the chapter’s protections to a wide variety of individuals, including state and
local government officers and employees and volunteers of a local government. See TEX. Clv.
PRACc. & REM. CODE §§ 108.001(1)(B), 102.001(1). Moreover, section 108.001 expressly lists
public officials and individuals covered by sections 102.001 and 104.001, which includes state and
local government officers, as distinct categories of persons entitled to the chapter’s protections.
Id. § 108.001(1)(B); see also id. §§ 102.001, 104.001(1). Thus, construing “public official” as the
equivalent of an officer would render the Legislature’s use of the term a nullity. See Epco
Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265, 270 (Tex. App.—Houston [14th
Dist.] 2011, pet. dism’d) (“[W]e should not adopt a construction that renders a statutory provision
meaningless.”). In sum, the context of section 108.001—as well as the dictionary definition of the
Sherif Zaafran, M.D. - Page 5 (KP-0243)

term and its use in other contexts—suggests that the Legislature intended the term “public official”
to encompass individuals appointed to serve a governmental unit but who are not officers.
Accordingly, while this is an issue of first impression, rules of statutory construction suggest that
a court would likely conclude that the Advisory Committee members are public officials for
purposes of the liability limits established under chapter 108 to the extent they satisfy the other
requirements of that chapter.
Sherif Zaafran, M.D. - Page 6 (KP-0243)

SUMMARY

Members: of the Physician Health and Rehabilitation
Advisory Committee serve in an advisory capacity and thus are not
public officers. Accordingly, a court would likely conclude that the
members are not entitled to legal representation by the Office of the
Attorney General and indemnification under Civil Practice and
Remedies Code chapter 104.

Chapter 108 of the Civil Practice and Remedies Code
establishes limits on the liability of public officials appointed to
serve a governmental unit. Under rules of statutory construction, a

- court would likely conclude that the Physician Health and
Rehabilitation Advisory Committee members are public officials for
purposes of the liability limits under chapter 108.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER >
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee