Untitled Texas Attorney General Opinion ( 1996 )

QBffice of the Plttornep @enetA
&ate of iICexa$
DAN MORALES
ATTORNEY
GENERAL July 16,1996
The Honorable David Counts Opinion No. DM-402
Chair
Committee on Natural Resources Re: Whether the Charitable Immunity
Texas House of Representatives and Liability Act of 1987, Civil Practices
P.O. Box 2910 and Remedies Code chapter 84, applies to a
Austin, Texas 78768-2910 resource conservation and development
council established under 16 U.S.C. chapter
54, subchapter v (RQ-881)
Dear Repesentative Counts:
The Charitable Immunity and Liability Act of 1987 (the act)’ generally deems a
charitable organization’s officers and volunteers immune Tom civil liabiity for actions
taken in the scope of official or.vohmteer duties. A charitable organization includes a
nonprofit, tax-exempt organization that exclusively performs charitable services or
promotes social welfare. A resource conservation and development council, which some
rural communities have created under federal law, must devise a plan to conserve land,
develop natural resources, and enhance area living conditions. You a& whether a
resource conservation and development council is a charitable organization under the act
You state that a resource conservation and development council “invariably” is a
nonprofit organization that is exempt from federal taxes under section 501(c)(3) of the
I&anal Revenue Code of 1986.2 You also indicate that a rural community creates a
resource conservation and development council to provide resource conservation facilities
and services. Indeed, under the relevant federal law, 16 U.S.C. chapter 54, subchapter V,
a rural resource conservation and development council is eligible for federal funds only if
it conceives and implements an arca plan to “to conserve and improve the use of land,
develop natural resources, and improve and enhance the social, economic, and
environmental conditions in rural areas of the United Statea’u An area plan must include
at least one or more of four elements:
(A) a land conservation element, the purpose of which shall bc
to control erosion and sedimentation;
‘Civ. Prac. & Rem. Code ch. 84.
226 U.S.C.
‘I6 U.S.C. B 3453; see also id. 8 3456(a)(Z).
The Honorable David Counts - Page 2 @M-402)
@) a water management element, the purpose of which shall be
to provide for the conservation, utilization, and quality of water . ;
(C) a community development element, the purpose of which
shall be the development of natural resources based industries,
protection of rural industries from natural resource hazards,
development of aquaculture, development of adequate rural water
and waste disposal systems, improvement of recreation facilities,
improvement in the quality of rural housing, provision of adequate
health and education facilities, and satisfaction of essential
transportation and communication needs; or
(D) other elements, the purpose of which may include energy
conservation or protection of agricultural land, as appropriate, from
conversion to other uses, or protection of fish and wildlife habitats.4
poornote added.]
We consider first whether a resource conservation and development council is a
charitable organization for purposes of the act. If a council is a charitable organization, a
council officer, director, or trustee generally is immune from civil liabiity for any act or
omission, done in the scope of the officer’s duties, that results in death, damage, or
injuqcs The act grants a similar immunity to any direct service volunteer of a charitable
organization if the volunteer acts in good faith and in the course and scope of his or her
duties or fhnctions within the organization.6
An organization’s stams as charitable under the act depends largely upon the
purpose the organization serves. For example, a nonprofit corporation exempt f?om
federal income tax and listed as exempt under 26 U.S.C. $501(c)(3) is a charitable
organization if it is organized and operated exclusively “for charitable, religious,
prevention of cruelty to children or animals, youth sports and youth recreational, or
educational purposes, . _ . , or is organized and operated exclusively for the promotion of
social welfare by being primarily engaged in promoting the common good and general
welfare of the people in a community.~ Of the listed purposes, we believe a resource
'Id.
8 3452(l).
5Civ.FVac.&Rem.~ $84.OM(a);seealso id.pg84.004(c),.007(exceptions).
Seegenerolly
Attorney General Opiion M-1257 (1990) at l-2.
WV. FTac.& Rem. cnde 5 84.004@).The act liits employeeaud organimtiorlal liabilily to
moneydmageaina maximumamnunt.Id~~84.004-.006. available
Theselimitationsonliiitya~.
only to a charitableorgaaizatioathat carriesliability insuranceinspedfiedamoums.
Id.g84.007(&
'Id.5 84.003(1)(A). A charitable organizationalso includes a homeownen -0% as
by 26 USC. 8 528(c), aad an orgaaization,not exempt from federal income tax or Iii
defined as
exempt under 26 U.S.C. 8 501(c)(3), (4). that serves boas fide charitable. religious, or educational
puposes; that seeks to prevent cruelty to children or animals or to promote.youth sports or youth
-tiom, or that operatesexclusivelyto promotesocial welfareby promoting the common good and
p. 2207
The Honorable David Counts - Page 3 (DM-402)
conservation and development council is most likely to serve charitable purposes or to
promote social welfare.
The act does not define “charitable purposes” or “the promotion of social welfare.”
Section 2(2)@) of the Charitable RatYe Enabling Act,* however, defines “charitable
purpose” as “initiating, performing, or fostering worthy public works in this state.” The
legislature’s definition of a term in one act does not necessarily dictate the term’s meaning
in another act9 Nevertheless, this office has stated that article 179fs definition of
charitable purpose “closely tracks” the definition courts use in discussing the establishment
of charitable trust~.*~ Accordingly, we believe the definition of the term “charitable
purposefl” in article 179f, section 2(a)(2) is helpful in defining the same term in the
context of the act.
Additionally, we find a definition of the promotion of social welfare in a prior
opinion of this office, Attorney General Opinion JM-1257.1’ That opinion considers
whether a chamber of commerce is a charitable organization for purposes of the act.12
Generally, the opinion notes, to decide whether a particular organization is charitable
under the act requires investigating and resolving fact questions, which this office cannot
undertake.‘3
In that opinion, however, this office believed it could rely upon numerous judicial
and administrative discussions of a chamber of commerce’s purpose to determine whether
a chamber of commerce is a charitable organization under the act.14 Thus, upon reviewing
relevant precedent, the opinion stated that a chamber of commerce exists to promote the
area’s general economic welfare through activities that advertise the area’s products and
welhe. Id.0 84.003(1)(B), (C). Because we bzlkvc tbc issue you raise may be resohwl u&r
public
sectioa 84.003(1)(A) ofthe Civil Practices and Remedia Code, WCdo not discuss §ions (l)(B) aad
(C).
%r.T.C.S. art 179f.
g67 TEX. JUR 3D.%tileS 8 106, at 684 (1989).
l”Atlomey General Opinion JM-1180 (1990) at 2 (and sour& cited therein); see o&w BLACK'S
LAWDICIWN~Y 213 (5th ed. 1979).
llAttorney General Opinion M-1257 (1990) at 5.
121d.
at1.
“Id.
141d.
p. 2208
The Honorable David Counts - Page 4 (DM-402)
industries and encourage private industry and businessI An organization with this
purpose is charitable under the act only if the organization is “‘organized and operated
exclusively”’ to promote social welfare by primarily promoting the common good and
generai welfare of the people in a community.r6
Without delineating “the full range of activities that might be performed by
organixations that are ‘organ&d and operated exclusively for the promotion of social
welfare by. . . promoting the common good and general welfare of the people in a
community,“’ the opinion concludes that an organixation that exclusively promotes social
welfare is one “that provides services to individuals who are in need of them.“17 A
chamber of commerce, the purpose of which is not to provide services to individuals who
are in need of them, is outside the act’s detinition of charitable organixation.rs
We now must apply the statutory purposes of a resource conservation and
development council to our discussion of charitable purpose and the promotion of social
welfare. We believe a resource conservation and development council may serve a
charitable purpose and therefore may fit within the definition of charitable organization in
section 84.003(1)(A) because a council may initiate, perform, or foster public works in the
state.19 For example, a council may construct dams and reservoirs, develop rural water
and waste disposal systems; improve recreation tkilities, provide health and education
fkciiities, and satisfy transportation and communication needs. Of course, whether a
particular resource consetvation and development council exclusively serves a charitable
purpose is a question of fact that is inappropriate to the opinion process.2o
We believe a resource conservation and development council also may be
organixed and operated exclusively to promote social welfare by providing services to
individuals who are in need of them.21 For example, a resource conservation and
IsId.at5;see26 C.F.R. $ 1.501(c)(6)-1; National MuJlerDealers Ass’nY.United Sates, 565
F.2d 845 (2d Cir. 1977). affd, 440 U.S. 472 (1979); KordusY.CityofGcvlmrd, 561 S.W.2d 260 (‘kx.
Civ. App.-Tyler 1978, writ refd n.r.e.); Attorney General Opinions JM-1199 (1990), JM-516 (1986). H-
397 (1974).
16Attomey General Opiion JM-1257 (1990) at 5 (quoting Civ. F’rac. & Rem. Code
0 84.~3mm
“Id.at 6.
‘81d.
at6-7.
%hethcs a particularpublicworksprojectis “worthy,”set V.T.C.S. art. 17% 5 2(a)(Z)(B), is a
question of fact that is inappmpsiate to the opinion procss. See, e.g., Attorney General Opiions DM-98
(1992) at 3,H-56 (1973) at 3, M-187 (1968) at 3,0-2911(1940) at 2.
%ee, e.g., Aaomey Geneml Opiions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3,
D-2911 (1940) at 2.
2’See Aitomey General Opinion JM-1257 (1990) at 6.
p. 2209
The Honorable David Counts - Page 5 (DM-402)
development council may be involved in controlling erosion from agricuhural land,
unproving the quality of rural housing, providing adequate health and education facilities,
and satisfying essential transportation and wmmunication needs, among other things.
Whether, of wurse., a particular resource conservation and development council
exclusively serves the purpose of promoting social welfare is a fact question that is
inappropriate to the opinion process.22
Likewise, whether a particular resource conservation and development council
exclusively serves any of the other purposes that a charitable organization may serve, for
example, educational purposes, is a question of fact.
SUMMARY
The purposes of a resource conservation and development
wuncil, established pursuant to 16 U.S.C. chapter 54, subchapter V,
may be consistent with the purposes a charitable organization must
serve under Cii Practice and Remedies Code section 84.003(1)(A).
Whether, however, a particular resource wnservation and
development council, established pursuant to 16 U.S.C. chapter 54,
subchapter V, is a charitable organization for purposes of chapter 84
of the Cii Practices and Remedies Code is a question of fact.
Yours Very truly, /
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHJRLSY
Chair, Opiion Committee
Prepared by Kymberly K. Ohrogge
tbsktant Attorney General
%ee, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3,
o-2911 (1940) at 2.
p. 2210