Case Information
*1 The Attorney General of Texas July 17. 1986 JIM MATTOX
Attorney General
Supreme P. 0. 80X 12548 Austin, 512/475-2501 Telecopier Telex 9101874-1367 TX. 78711. Court Building 512,475.0266 [2548] Austin, Texas Texas Savings & Losn Department COlld.SsiOIl.‘2K 2601 North Lamar, Suite 201 78705 Re: Whether a person appointed as conservator, Opinion No. JM-525 dating agent under article supervisor, or liqui- 852a,
V.T.C.S., is a State employee for purposes of chapter 104, of the 714 Jackson, Suite 700 Civil Practices and Remedies Code Dallas, TX. 75202-4506 2141742.8944 Dear Mr. Boman:
9?5/533-3484 4824 Alberta El Paso. TX. 79905.2793 Ave.. Suite [160]
and liquidating sioner You ask about under sec.:Ilons 8.05, agents appointed by the Texas Savings and Loan Comis- ,the en;ployment status of conservators, 8.08, 8.09, and 8.11 of article supervisors, 852a, [201] r3l223.5686 uston. TX. 77002.3111 Texas, Suite 700 Practice In particular of sections you ask whether such persons are employees 104.001 and 104.008 of the Civil of
Chapter 8 of the Savings and Loan Act, article 852a, V.T.C.S., provides for the cegulation of savings and loan associations 806 Broadway, Suite 312 Lubbock, TX. 79401.3479 Texas Savings and Loan Department and the Savings and Loan Comis- 8061747-5238 The comni_ssioner has authority, under specified circum- SiO*Sr.
stances, to appoint and liquidating to oversee the affairs of particular savings and loan associations. 4309 N. Tenth, Suite B McAllen. TX. 78501.1685 5121682-4547 If the savings loan has reasonable cause
believe them: are grounds for intervention in the affairs of a ,association, he may enter an order placing the 200 Main Plaza. Suite 400 affairs that swings and loan association under the control of a San Antonio. TX. 78205.2797 512f2254191 conservator. art. 852a. 98.05(a)(4). The powers and duties
of a conservator are set out in section 8.08 of article 852a: An Equal Opportunity/ (c) The conservator and any deputy or assistant Affirmative Action Employer conservatn'c appointed by the commissioner, on behalf
of and under the supervision and direction comission~zr, shall take charge the books, records, Fzperty, assets, liabilities, and business the association and shall conduct the business
and affa::rs the association. The conservator shall minertake removal causes conditions that necessitated conservatorship. During the conservatorship, the conservator - Pa::e 2 (~~-525) make such reports, to the commissioner as the com- missioner 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 Iroperty the capacity con- servator and may e:ile, prosecute, or defend against a suit by or against the association if the con- servator considers this action necessary to protect interested party or property affected suit.
. . . .
(e) The commi;%;ioner determine the cost incident to the conservatorship, and this cost shall be paid out of the: assets of the association as the comissior. directs. 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. 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 legislature defined a supervisor’s powers by reference to a conservator’s powers, we think legislature intended a supervisor’s powrs, like a conservator’s powers, to be 1 subject to the supervision and direction of the comissioner. Also, section 8.11, like section l%..OB, provides that the cost of supervisory “shall be fixed by the commissioner and paid by the associa- tion.”
1. Before August 26, 1985, the commissioner had no authority appoint or liquidating agents, but he did have authority, with the consent of the board of directors the savings and loan to appoint a supervisory agent for a particular association, Acts 1977, 65th Leg., ch. 239, at 642 (codified and loan association. as article 852a. 58.18; deleted by Acts 1985, 69th Leg., ch. 231, at A supervisory ager,t had essentially the same function as a 1929). supervisor has under the 1985 revision of chapter 8 of article 852a. The prior provision authorj.zing the appointment of supervisory explicitly made them subject to the instructions and supervision Acts 1977, 65th Leg., ch. 289, at 644. the cormnissioner. - Pa$:e 3
If the commissioner Einds that a savings loan association cannot be rehabilitated, he may issue an order liquidation appointing a liquidating agent and dissolving the association. art. 852a, §8.09(11). A liquidating agent, like a conservator exercise:; his powers under the supervision
05 a supervisor, commissioner. art. 852a, 58.09(c). The statutes governing agents do not specify how the costs of agents are to be paid.
You ask whether conservators, and liquidating 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, is liable for actual damages, court &ts, and attorney's fees adjudged against: a member of the governing
(1) an em]‘l.oyee, board, or any (other officer or department; institution, -- a former employee, former member of the (2) governing or any other former officer & board, a state agenc'L, institution, or department who was an emplovee or officer when the act or omission on -&ich damages are based accursed; - a phyr;j.cian licensed'in this state who (3)
was performin;: services under a contract with the Disability Determination Division 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; a perwn serving on the governing board (4) of a foundaticm. corporation, or association at the request and on behalf of The University Texas System; cr
(5) the e:;tate of a person listed in this (Elr.&sis added). section.
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 Mr. L. L. Bownan, III
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 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 its judgment or the jury in its verdict finds the person acted in bad faith. (Empha:3:ls added).
Section 104.008 provid#zs:
This chapter does not a defense, waive immunity, or jurizdictional bar available to the state or its offi,cers, employees, or cont+actors. The legislature did no': define "employee" for purposes of section ?
104.002 or section 104.008 Iof the Civil Practice Therefore, in defining "employee" 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 determining that a person is an employee is state becomes liable for damages based on certain conduct See Civil Practice and Remedies Code §104.OC2. Therefore, employee.
it is usefumn determining the definition of "employee" 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 details 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 the work rather than the exercise ;Er that right that governs issue 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 has right the work of commission, and liquidatirg agents. art. 852n, 558.08(c),
,- and 8.11; see also art. 342-205(a) (savings
8.09(c): is employee~?inance commission and subject its orders and directions). 'Therefore, we think that conservators, supervisors agents are "employees" Since se':tion 104.008 uses the term "employees"
section 104.001. reference to the other provisions of chapter 104 of the Civil Practice and Remedies Code, it fo:llows that agents are "employees" of section 104.008 as
well.
You are apparently concerned about the employment status 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 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. servauts"). In Riverbend 1968) (discussing matter "borrowed 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 of a golf club even though the caddies were caddies were employees In Magnolia Petroleum Co. v. Francis, paid directly by the players.
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 the assets of savings and loan associations precludes a finding that they are employees of the state.
We do note article 342-205(b) contains following language:
Each Deputy Se.vings and Loan Commissioner, Savings and Loan Examiners, each Hearing Officer, and all other officers and employees Savings and LoarT Department receive such compensation as is fixed by the Finance Commission which shall -paid from the funds of the Savings and Loan Department --*
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 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, later provisions that create employees who are not paid out of the funds of 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 and supervisors from being employees the state of sections 104.001 and 104.008 of the Civil Practjce has right
Because aud the details the work of agents, we conclude they are employees of the state for purposes of sections lC4.001 and 104.008 of the Civil Practice Remedies Code.
SUMMARY Conservators, sy'ervisors,
appointed under chapter 8 of article 852a, V.T.C.S., are employees 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