Untitled Texas Attorney General Opinion ( 1988 )

September 2, 1988
Honorable Hugh Parmer Opinion No. JM-951
Chairman
Intergovernmental Relations Re: Whether a public tele-
Committee vision station is a "char-
Texas State Senate itable organization" for
P. 0. Box 12068 purposes of liability, in-
Austin, Texas 78711 eluding slander and libel,
and related questions
(RQ-1513)
Dear Senator Parmer:
You ask our opinion on a number of questions concerning
the application of the Charitable Immunity and Liability Act
of 1987 (the Act) to suits against public television
,- stations and volunteer members of the supervisory boards
responsible for the control of such.stations. We will first
review the Act and then answer each of your questions in
turn.
We assume that‘by "public television stations" YOU
mean those broadcasting entities licensed by the Federal
Communications Commission pursuant to section 301 of Title
47 of the United States Code: and which are owned and
operated by nonprofit entities; and which provide non-
commercial, educational broadcast programming for the
public.1 --
See also 47 U.S.C. 9 396.
The Charitable Immunity and Liability Act of 1987 was
adopted by the legislature to "reduce the liability exposure
and insurance costs" of "bona-fide" and *'well-supported@'
charitable organizations "and their employees and volunteers
in order to encourage volunteer services and maximize the
1. We do not address those public television stations
which are licensed to public entities such as the state, its
universities, or a political subdivision. See aenerally
Civ. Prac. & Rem. Code ch. 101.
h
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Honorable Hugh Panzer - Page 2 (JM-951)
resources devoted to delivering these services." Civ. Prac.
& Rem. Code § 84.002.
The Act provides for limited grants of immunity for
volunteers serving charitable organizations and for limita-
tions on liability in money damages for employees and for
the organizations. See Civ. Prac. & Rem. Code !j!j 84.004,
84.005, 84.006, 84.007. Both the grants of immunity and the
limitations on liability are subject to numerous provisos.
See Civ. Prac. & Rem. Code 8 84.007. In particular, it is
important to note in reviewing your questions that none of
the immunity-conferring and liability-limiting provisions in
the Act apply to
an act or omission that is intentional,
wilfullv or wantonlv nealiaent, or done with
conscious indifference or reckless disregard
for the safety of others. (Emphasis added.)
Civ. Prac. & Rem. Code 9 84.007(a). Additionally, the
limitations on liability available to charitable
organization and its employees do not appl; unless the
organization maintains a specified amount of liability
insurance. Civ. Prac. & Rem. Code 5 84.007(g).
You first ask whether a public television station is
a "charitable organization" within the meaning of section
84.003(l) of the Act.
Such.a determination is a question of fact: The Act
sets.out two alternative sets of criteria for determining
whether a particular entity is a "charitable organization"
for the purposes of the Act:
(1) 'Charitable organization' means:
(A) any organization exempt from federal
income tax under Section 501(a) of the
Internal Revenue Code of 1986 by being listed
as an exempt organization in Section 501(c)
(3) or 501(c)(4) of the code, if it is a
nonprofit corporation, fcundation, community
chest, 'or fund organized and operated exclus-
ively for charitable, religious, prevention
of cruelty to children or animals, youth
sports and youth recreational, or educational
purposes, excluding private primary or
secondary schools, alumni associations and
related on-campus organizations, or is
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Honorable Hugh Parmer - Page 3 (JM-951)
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: or
(B) any bona fide charitable, religious,
prevention of cruelty ~to children or animals,
youth sports and youth recreational, or
educational organization, excluding alumni
associations and related on-campus organiza-
tions, or other organization 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, and that:
(i) is organized and operated exclu-
sively for one or more of the above
purposes:
(ii) does not engage in activities
which in themselves are not in furtherance
_--. of the purpose or purposes:
(iii) does not directly or indirectly
participate or intervene in any political
campaign on behalf of or in opposition to
any candidate for public office;
(iv) dedicates its assets to achieving
the stated purpose or purposes of the
organization:
(vi does not allow any part of its net
assets on dissolution of the organization
to inure to the benefit of any group,
shareholder, or individual: and
(vi) normally receives more than one-
third of its support in any year from
private or public gifts, grants, .contribu-
tions, or membership fees.
(2) 'Volunteer' means a person rendering
services for or on behalf of a charitable
organization who does. not receive compensa.-
tion in excess of reimbursement for. expenses
incurred, and such term includes a person
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Honorable Hugh Parmer - Page 4 UM-951)
serving as a director,'officer, trustee.I or
direct service-voluntier.
(3) 'Employee' means any person, in-
cluding an officer or director, who is in the
paid service of a charitable organization,
but does not include an independent con-
tractor.
(4) 'Good faith' means the honest, con-
scientious pursuit of activities and pur-
poses that the organization is organized and
operated to provide.
Civ. Prac. & Rem. Code g 84.003.
We cannot engage in fact-finding in the opinion
process, and you provide no facts concerning a particular
public television station. Certainly, the licensee of a
public television station may be, in the appropriate
circumstances, a "charitable organization." For instance,
we note that the rules and regulations of the Federal
Communications Commission stipulate that public non-
commercial television broadcqsting stations will
be licensed only to nonprofit educational
organizations upon showing that the
proposed stations willa be used primarily to
serve the educational needs of the community;
for the advancement of educational programs:
and to furnish a nonprofit and noncommercial
television broadcast service.
47 C.F.R. 5 73.621. & &&p Commission Policy Concerning
the Noncommercial Nature of Educational Broadcast Stations,
86 F.C.C.2d 141 (1981). The Act clearly protects nonprofit
(whether or not tax-exempt) entities organized and operated
for educational purposes as "charitable organizations."
Civ. Prac. & Rem. Code § 84.003(1)(A) and (B). Thus, public
television stations may qualify as charitable organizations,
but each case must await resolution on a proper factuai
record.
YOU next ask whether libel or slander, or both, are
included within the definitions of lVdamage*lor "injury" as
used in sections 84.004(a) of the Civil Practices and
Remedies Code.
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Section 84.004(a) of the code-provides in relevant part
that
a volunteer who is serving as an officer,
director, or trustee of charitable
organization is immune from citil liabilitv
for any act resulting in death, damaae, or
iniury if the volunteer was acting in the
course and scope of his duties or functions
as an officer, director, or trustee within
the organization. (Emphasis added.)
Civ. Prac. & Rem. Code 0 84.004(a).
Libel is
a defamation expressed in written or other
graphic form that tends to blacken the memory
of the dead or that tends to iniure a living
person's reputation and thereby expose
the person to public hatred, contempt or
ridicule, or financial iniury or to impeach
any personrs honesty, integrity, virtue, or
reputation or to publish the natural defects
of anyone and thereby expose the person to
public hatred, ridicule, or financial iniurv.
(Emphasis added.)
~Civ. Prac. & Rem. Code 5 73.001. Slander -- the oral
transmission of a defamatory statement -- is actionable
under the common law. McDaniel v. Kinq, 16 S.W.2d 931, 932
(Tex. Civ. App. - San Antonio 1929, no writ). The broad-
casting of defamatory statement read from a script is libel,
rather than slander. Kennedv v. Texoma Broadcasters, Inc.,
507 S.W.2d 864~, 866 (Tex. Civ. App. - Dallas 1974, no writ).
Thus, defamation is an "injury" within the meaning of
section 84.004(a) of the Act. An action for defamation may
or may not require the plaintiff to plead and prove actual
damages. See generallv 36 Tex. Jur. 2d §§ 93-95.
You also ask whether a defamatory public television
broadcast will subject a public television station and
volunteer members of the board of directors which govern the
station to liability for the defamation.
The special nature of some defamations may mean that
the Charitable Immunity and Liability Act will not apply to
every libel or slander. This is so because section 84.007 of
the Act states unequivocally that the Act does not
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Honorable Hugh Parmer - Page 6 (JM-951)
apply to an act'~or omission that is- inten-
tional, wilfully or wantonly negligent, or
done with conscious indifference or reckless
disregard for the safety of others.
(Emphasis added.)
Civ. Prac. and Rem. Code § 84.007(a).. While proof of intent
is not required to establish liability for actual damages
in a defamation action, see yornbv v . Hunter 385 S.W.2d 473
(Tex. Civ. App. - Corpus Christi 1964, no writ), any defama-
tion proven to be intentional is outside of the protection
conferred by the Act. Thus, volunteers and employees
associated with a charitable entity will not be able to
claim the protection of the Act in the case of intentional
defamation.
The Civil Practice and Remedies Code provides a limited
defense for broadcasters accused of transmitting a defama-
tion:
(a) A broadcaster is not liable '
damages for a defamatory statement publish::
or uttered in or as a part of a radio. or
television broadcast by one other than the
broadcaster unless the complaining party
proves that the broadcaster failed to
exercise due care to prevent the publication
or utterance of the statement in the broad-
cast.
(b) In this section, 'broadcaster' means
an owner, licensee, or operator of a radio
or television station . . . and the agents
and employees of the owner, licensee, or
operator.
Civ. Prac. & Rem. Code 5 73.004. This provision furnishes a
limited defense for the members of the board of directors of
a public television station licensed to a Texas not-for-
profit corporation, for they are the "operators" of the
station. See, e.s., V.T.C.S. art. 1396-2.14 (the affairs of
a nonprofit corporation shall be managed by a board of
direct,ors).
We also caution that in addition to the Texas law of
defamation, public broadcasters are subject to the "personal
attack" rules of the Federal Communications Commission.
That rule provides:
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(a) When, during the presentation of
views on a controversial issue of public
importance, an attack is made upon. the
honesty, character, integrity like
personal qualities of an identifier person
or group, the licensee shall, within
reasonable time and in no event later thai
one week after the attack, transmit to the
persons or group attacked:
(1) Notification of the date,, time and
identification of the broadcast;
(2) A script or tape (or an accurate
summary if a script or tape is not available)
of the attack: and
(3) An offer of a reasonable opportunity
to respond over the licensees' facilities.
(b) The provisions of paragraph (a) of
this section shall not apply to broadcast
material which falls within one or more of
-. the following categories:
(1) Personal attacks on foreign groups or
foreign public figures;
(2) Personal attacks occurring during
uses by legally qualified candidates.
(3) Personal attacks made during broad-
casts not included in paragraph (b)(2) of
this section and made by legally qualified
candidates, their authorized spokespersons,
or those associated with them in the
campaign, on other such candidates, their
authorized spokespersons or person associated
with the candidates in the campaign: and
(4), Bona fide newscasts, bona fide news
interviews, and on-the-spot coverage of bona
fide~news events, including commentary or
analysis contained in the foregoing programs.
(c) The provisions ~of paragraph (a) of
this section shall be applicable to edi-
torials of the licensee, except in the case
of noncommercial educational stations since
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Honorable Hugh Parmer - Page 8 (JM-951)
they .are precluded from~ editorializing
(section 399(a), Communications Act).
47 C.F.R. 5 73.1920.
A violation of this rule will not result in civil
liability, but it may cause the Communications Commission to
revoke the license of a public broadcaster.
SUMMARY
~The Charitable
'. Immunity and Liability
Act of 1987, Civ. Prac. & Rem. Code ch. 84,
may provide for immunity to volunteers
serving as members of the boards of directors
of public broadcasters. Whether the Act
applies to a public broadcasting station, its
employees, and volunteers is a question of
fact. Defamation is a category of injury
subject to the Act. Public broadcasting
stations, their operators, agents and
employees may have a limited defense in the
case of defamations broadcast over their
facilities. Civ. Prac. & Rem. Code 9 73.004.
d jk
Very truly yo s
A;,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney.General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIY
Chairman, opinion Committee
Prepared by D. R. Bustion, II
Assistant Attorney General
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