CHAPTER 104. STATE LIABILITY FOR CONDUCT OF PUBLIC SERVANTS - Texas Statutes

CIVIL PRACTICE AND REMEDIES CODE

TITLE 5. GOVERNMENTAL LIABILITY

CHAPTER 104. STATE LIABILITY FOR CONDUCT OF PUBLIC SERVANTS

Sec. 104.001. STATE LIABILITY; PERSONS COVERED. In a cause of

action based on conduct described in Section 104.002, the state

shall indemnify the following persons, without regard to whether

the persons performed their services for compensation, for actual

damages, court costs, and attorney's fees adjudged against:

(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;

(3) a physician or psychiatrist licensed in this state who was

performing services under a contract with any state agency,

institution, or department or a racing official performing

services under a contract with the Texas Racing Commission when

the act or omission on which the damages are based occurred;

(3-a) a phlebotomist licensed in this state who was performing

services under a contract with the Texas Department of Criminal

Justice when the act or omission on which the damages are based

occurred;

(4) a chaplain or spiritual advisor who was performing services

under contract with the Texas Department of Criminal Justice, the

Texas Youth Commission, or the Texas Juvenile Probation

Commission when the act or omission on which the damages are

based occurred;

(5) a person serving on the governing board of a foundation,

corporation, or association at the request and on behalf of an

institution of higher education, as that term is defined by

Section 61.003(8), Education Code, not including a public junior

college;

(6) a state contractor who signed a waste manifest as required

by a state contract; or

(7) the estate of a person listed in this section.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., ch. 1099, Sec. 47, eff. Sept. 1,

1987; Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.08, eff.

Sept. 2, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 29, Sec. 1,

eff. Oct. 20, 1987; Acts 1991, 72nd Leg., ch. 386, Sec. 72, eff.

Aug. 26, 1991; Acts 1995, 74th Leg., ch. 139, Sec. 2, eff. Sept.

1, 1995; Acts 1995, 74th Leg., ch. 883, Sec. 5, eff. Aug. 28,

1995; Acts 2001, 77th Leg., ch. 1082, Sec. 1, eff. June 15, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

292, Sec. 1, eff. June 15, 2007.

Sec. 104.002. STATE LIABILITY; CONDUCT COVERED. (a) Except as

provided by Subsection (b), the state is liable for

indemnification under this chapter only if the damages are based

on an act or omission by the person in the course and scope of

the person's 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 negligence,

except a wilful or wrongful act or an act of gross negligence; or

(2) the damages arise out of a cause of action for deprivation

of a right, privilege, or immunity secured 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, with conscious indifference or reckless

disregard; or

(3) indemnification is in the interest of the state as

determined by the attorney general or his designee.

(b) The state is liable for indemnification under this chapter

if:

(1) the person is liable for the damages solely because the

person signed an industrial solid waste or hazardous waste

manifest or other record required by Section 361.036, Health and

Safety Code;

(2) the person signed the manifest or record in the course and

scope of the person's office, employment, or contractual

performance or service on behalf of the agency, institution, or

department; and

(3) the person or company who signed the manifest did not

increase or aggravate circumstances of contamination by grossly

negligent acts or wilful misconduct.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.09, eff.

Sept. 2, 1987; Acts 1991, 72nd Leg., ch. 702, Sec. 1, eff. Aug.

26, 1991; Acts 1995, 74th Leg., ch. 883, Sec. 6, eff. Aug. 28,

1995.

Sec. 104.003. LIMITS ON AMOUNT OF RECOVERABLE DAMAGES. (a)

Except as provided by Subsection (c) or a specific appropriation,

state liability for indemnification under this chapter may not

exceed:

(1) $100,000 to a single person indemnified and, if more than

one person is indemnified, $300,000 for a single occurrence in

the case of personal injury, death, or deprivation of a right,

privilege, or immunity; and

(2) $10,000 for each single occurrence of damage to property.

(b) The state is not liable under this chapter to the extent

that damages are recoverable under and are in excess of the

deductible limits of:

(1) a contract of insurance; or

(2) a plan of self-insurance authorized by statute.

(c) The limits on state liability provided by Subsection (a) do

not apply if the state liability is based on Section 104.002(b).

(d) For the purposes of this section, a claim arises out of a

single occurrence, if the claim arises from a common nucleus of

operative facts, regardless of the number of claimants or the

number of separate acts or omissions.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 59, eff. Sept. 1,

1987; Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.10, eff.

Sept. 2, 1987; Acts 1989, 71st Leg., ch. 785, Sec. 3.09, eff.

Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 702, Sec. 2, eff. Aug.

26, 1991; Acts 1995, 74th Leg., ch. 139, Sec. 3, eff. Sept. 1,

1995; Acts 1997, 75th Leg., ch. 468, Sec. 2, eff. May 30, 1997;

Acts 2003, 78th Leg., ch. 531, Sec. 1, eff. June 20, 2003.

Sec. 104.0035. STATE LIABILITY; CRIMINAL PROSECUTION. (a) The

state shall indemnify a person for reasonable attorney's fees

incurred in defense of a criminal prosecution against the person

if:

(1) the person is covered by Section 104.001;

(2) the attorney general determines that the conduct for which

the person is criminally prosecuted could give rise to a civil

cause of action covered by Section 104.002;

(3) the person is found not guilty after a trial or appeal or

the complaint, information, or indictment is dismissed without a

plea of guilty or nolo contendere being entered; and

(4) the attorney general determines that the complaint,

information, or indictment presented against the person was

dismissed because:

(A) the presentment was made on mistake, false information, or

other similar basis, indicating absence of probable cause to

believe, at the time of the dismissal, the person committed the

offense; or

(B) the complaint, information, or indictment was void.

(b) State liability for indemnification under this section may

not exceed $10,000 for the prosecution of a criminal offense or

the prosecution of two or more offenses prosecuted in a single

criminal action.

(c) This section does not apply to a person who is criminally

prosecuted for operating a motor vehicle while intoxicated under

Section 49.04, Penal Code, for intoxication assault committed

while operating a motor vehicle under Section 49.07, Penal Code,

or for intoxication manslaughter under Section 49.08, Penal Code.

(d) An initial determination of the liability of the state for

indemnification and the reasonableness of attorney's fees under

this section shall be made by the attorney general upon

application by any person other than:

(1) an employee or former employee of the attorney general's

office; or

(2) the attorney general or a former attorney general.

(e) If the attorney general determines under Subsection (d) that

the state is liable for indemnification, the attorney general

shall indemnify the person for reasonable attorney's fees as

provided by this section from funds appropriated for that

purpose. If the attorney general determines that the state is not

liable for indemnification, the person may appeal to a district

court in Travis County. A person who is not entitled to an

initial determination under Subsection (d) may bring an action in

a district court in Travis County.

(f) The district court in Travis County has jurisdiction to hear

a suit under this section and may issue an order directing the

attorney general's office to indemnify the person for reasonable

attorney's fees as provided by this section. The judgment of the

district court is final and is not subject to appeal.

Added by Acts 1987, 70th Leg., 2nd C.S., ch. 29, Sec. 2, eff.

Oct. 20, 1987. Amended by Acts 1995, 74th Leg., ch. 76, Sec.

14.02, eff. Sept. 1, 1995.

Sec. 104.004. DEFENSE BY ATTORNEY GENERAL. (a) The attorney

general shall defend a public servant or estate listed in Section

104.001 in a cause of action covered by this chapter.

(b) The attorney general may settle or compromise the portion of

a lawsuit that may result in state liability under this chapter.

(c) It is not a conflict of interest for the attorney general to

defend a person under this chapter and also to prosecute a legal

action against that person as required or authorized by law if

different assistant attorneys general are assigned the

responsibility for each action.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.11, eff.

Sept. 2, 1987.

Sec. 104.005. SERVICE OF PROCESS OR TIMELY NOTICE TO ATTORNEY

GENERAL REQUIRED. Except as provided by Section 104.0035, the

state is not liable for the defense of an action covered by this

chapter or for damages, court costs, or attorney's fees unless:

(1) the attorney general has been served in the case and the

state has been given an opportunity to defend the suit; or

(2) the person against whom the action is brought delivers to

the attorney general all process served on the person not later

than the 10th day after the date of service.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 29, Sec. 3, eff.

Oct. 20, 1987.

Sec. 104.006. SECURITY OR BOND. In a cause of action defended

by the attorney general under this chapter, the attorney general

or the individual or estate represented may not be required to

advance security for cost or to give bond on appeal or on review

by writ of error.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 104.007. FUNDS FOR DEFENSE. (a) Only funds appropriated

from the General Revenue Fund to the attorney general may be used

to conduct the defense of an action that the attorney general is

required to defend under this chapter.

(b) Conducting the defense of an action covered by this chapter

includes investigating, taking depositions, making discovery,

preparing for trial, preparing exhibits or other evidence, and

participating in actual trial.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 104.008. NO WAIVER OF DEFENSES. This chapter does not

waive a defense, immunity, or jurisdictional bar available to the

state or its officers, employees, or contractors.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 104.009. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. (a)

A state agency, institution, or department may purchase a

directors' and officers' liability insurance policy applicable to

damages for conduct described under Section 104.002 and other

conduct customarily covered under directors' and officers'

liability insurance policies for the benefit of:

(1) a director or officer of the agency, institution, or

department;

(2) a member of a governing board, commission, or council of the

agency, institution, or department; or

(3) a member of the executive staff of the agency, institution,

or department.

(b) An insurance policy purchased under this section must have a

deductible applicable to the liability of the state agency,

institution, or department in an amount equal to the amount of

the limits of liability established under Section 104.003. The

deductible applicable to an individual's liability may be set at

a lower amount.

(c) The purchase of an insurance policy under this section does

not waive a defense, immunity, or jurisdictional bar available to

the state agency, institution, or department purchasing the

insurance or to the insured.

Added by Acts 1997, 75th Leg., ch. 468, Sec. 1, eff. May 30,

1997.