Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MATTOX
July 17. 1986
Attorney General
Supreme Court Building Mr. L. L. Bowman, III Opinion No. JM-525
P. 0. 80X 12548
COlld.SsiOIl.‘2K
Austin, TX. 78711. 2548
512/475-2501 Texas Savings & Losn Department Re: Whether a person appointed as
Telex 9101874-1367 2601 North Lamar, Suite 201 conservator, supervisor, or liqui-
Telecopier 512,475.0266 Austin, Texas 78705 dating agent under article 852a,
V.T.C.S., is a State employee for
714 Jackson, Suite 700
purposes of chapter 104, of the
Dallas, TX. 75202-4506 Civil Practices and Remedies Code
2141742.8944
Dear Mr. Boman:
4824 Alberta Ave.. Suite 160
El Paso. TX. 79905.2793
You ask about ,the en;ployment status of conservators, supervisors,
9?5/533-3484 and liquidating agents appointed by the Texas Savings and Loan Comis-
sioner under sec.:Ilons 8.05, 8.08, 8.09, and 8.11 of article 852a,
V.T.C.S. In particular you ask whether such persons are employees of
201 Texas, Suite 700 the state for purposes of sections 104.001 and 104.008 of the Civil
uston. TX. 77002.3111
Practice and Remedies Code.
r3l223.5686
Chapter 8 of the Savings and Loan Act, article 852a, V.T.C.S.,
806 Broadway, Suite 312 provides for the cegulation of savings and loan associations by the
Lubbock, TX. 79401.3479 Texas Savings and Loan Department and the Savings and Loan Comis-
8061747-5238
SiO*Sr. The comni_ssioner has authority, under specified circum-
stances, to appoint conservators, supervisors, and liquidating agents
4309 N. Tenth, Suite B to oversee the affairs of particular savings and loan associations.
McAllen. TX. 78501.1685
5121682-4547
If the savings and loan commissioner has reasonable cause to
believe that them: are grounds for intervention in the affairs of a
200 Main Plaza. Suite 400 savings and loan ,association, he may enter an order placing the
San Antonio. TX. 78205.2797 affairs of that swings and loan association under the control of a
512f2254191 conservator. V.T.C.S. 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/
Affirmative Action Employer (c) The conservator and any deputy or assistant
conservatn'c appointed by the commissioner, on behalf
of and under the supervision and direction of the
comission~zr, shall take charge of the books,
records, Fzperty, assets, liabilities, and business
of the association and shall conduct the business
and affa::rs of the association. The conservator
shall minertake the removal of the causes and
conditions that necessitated the conservatorship.
During the conservatorship, the conservator shall
p. 2410
Mr. L. L. Bowman, III - 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 that Iroperty in the capacity of 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
the interested party or property affected by the
suit.
. . . .
(e) The commi;%;ioner shall determine the cost
incident to the conservatorship, and this cost shall
be paid out of the: assets of the association as the
comissior. directs. (Emphasis added).
V.T.C.S. 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.
V.T.C.S. 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 the legislature defined a supervisor’s powers by
reference to a conservator’s powers, we think that the legislature
intended a supervisor’s powrs, like a conservator’s powers, to be
subject to the supervision and direction of the 1
comissioner. Also,
section 8.11, like section l%..OB, provides that the cost of supervisory
control “shall be fixed by the commissioner and paid by the associa-
tion.”
1. Before August 26, 1985, the commissioner had no authority to
appoint conservators or liquidating agents, but he did have authority,
with the consent of the board of directors of the savings and loan
association, to appoint a supervisory agent for a particular savings
and loan association. Acts 1977, 65th Leg., ch. 239, at 642 (codified
as article 852a. 58.18; deleted by Acts 1985, 69th Leg., ch. 231, at
1929). A supervisory ager,t had essentially the same function as a
supervisor has under the 1985 revision of chapter 8 of article 852a.
The prior provision authorj.zing the appointment of supervisory agents
explicitly made them subject to the instructions and supervision of
the cormnissioner. Acts 1977, 65th Leg., ch. 289, at 644.
p. 2411
Mr. L. L. Bowman, III - Pa$:e 3 (JM-525)
If the commissioner Einds that a savings and loan association
cannot be rehabilitated, he may issue an order of liquidation
appointing a liquidating agent and dissolving the association.
V.T.C.S. art. 852a, §8.09(11). A liquidating agent, like a conservator
05 a supervisor, exercise:; his powers under the supervision of the
commissioner. V.T.C.S. art. 852a, 58.09(c). The statutes governing
liquidating agents do not specify how the costs of liquidating agents
are to be paid.
You ask whether conservators, supervisors, and liquidating agents
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, the state is liable for actual
damages, court &ts, and attorney's fees adjudged
against:
(1) an em]‘l.oyee,a member of the governing
board, or any (other officer
institution, or department;
(2) a former employee,
-- former member of the
governing board, or any other former officer &
a state agenc'L, institution, or department who
was an emplovee or officer when the act or
omission on -&ich the damages are based
accursed; -
(3) a phyr;j.cian licensed'in this state who
was performin;: services under a contract with
the Disability Determination Division of the
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;
(4) a perwn serving on the governing board
of a foundaticm. corporation, or association at
the request and on behalf of The University of
Texas System; cr
(5) the e:;tate of a person listed in this
section. (Elr.&sis added).
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
p. 2412
Mr. L. L. Bownan, III - Page 4 (JM-525)
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 of
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 in its judgment or the jury in its
verdict finds that the person acted in bad
faith. (Empha:3:ls added).
Section 104.008 provid#zs:
This chapter does not waive a defense,
immunity, or jurizdictional bar available to the
state or its offi,cers, employees, or cont+actors.
(Emphasis added).
The legislature did no': define "employee" for purposes of section
104.002 or section 104.008 Iof the Civil Practice and Remedies Code. ?
Therefore, in defining "employee" for purposes 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 of
determining that a person is an employee of the state is that the
state becomes liable for damages based on certain conduct by the
employee. See Civil Practice and Remedies Code §104.OC2. Therefore,
it is usefumn determining the definition of "employee" for purposes
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 the
details of 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 of the work
rather than the exercise ;Er that right that governs the issue of
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
commission, has the right to control the work of conservators,
supervisors, and liquidatirg agents. V.T.C.S. art. 852n, 558.08(c),
p. 2413
,-
Mr. L. L. Bowman, III - Page 5 (JM-525)
8.09(c): and 8.11; see also art. 342-205(a) (savings and loan
commissioner is employee~?inance commission and subject to its
orders and directions). 'Therefore, we think that conservators,
supervisors and liquidating agents are "employees" for purposes of
section 104.001. Since se':tion 104.008 uses the term "employees" in
reference to the other provisions of chapter 104 of the Civil Practice
and Remedies Code, it fo:llows that conservators, supervisors, and
liquidating agents are "employees" for purposes of section 104.008 as
well.
You are apparently concerned about the employment status of
conservators 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 of
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.
1968) (discussing matter of "borrowed servauts"). In Riverbend
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
caddies were employees of a golf club even though the caddies were
paid directly by the players. In Magnolia Petroleum Co. v. Francis,
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
of the assets of savings and loan associations precludes a finding
that they are employees of the state.
We do note that article 342-205(b) contains the following
language:
Each Deputy Se.vings and Loan Commissioner, the
Savings and Loan Examiners, each Hearing Officer,
and all other officers and employees of the
Savings and LoarT Department shall receive such
compensation as is fixed by the Finance Commission
which shall -paid from the funds of the Savings
and Loan Department --* (Emphasis added).
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 that
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, the later
provisions that create employees who are not paid out of the funds of
p. 2414
Mr. L. L. Bowman, III - Page 6 (JM-525)
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 conservators and supervisors from
being employees of the state for purposes of sections 104.001 and
104.008 of the Civil Practjce and Remedies Code.
Because the savings and loan commissioner has the right to
control the details of the work of conservators, supervisors, aud
liquidating agents, we conclude that they are employees of the state
for purposes of sections lC4.001 and 104.008 of the Civil Practice and
Remedies Code.
SUMMARY
Conservators, sy'ervisors, and liquidating agents
appointed under chapter 8 of article 852a, V.T.C.S.,
are employees of the state for purposes 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
p. 2415