Texas Attorney General Opinion: JM-525 Page: 4 of 6
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Mr. L. L. Bounman, 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 dmages arise out of a cause of
action for negligence, except a wilful or
wrongful act or an act of gross negligence; or
(2) the dzrrages arise out of a cause of
action for deprivation of a right, privilege,
or immunity secured by the constitution or laws
of this state o r the United States, except when
the court in Lts judgment or the jury in its
verdict finds that the person acted in bad
faith. (Empha:3is added).
Section 104.008 provides:
This chapter does not waive a defense,
immunity, or jurisdictional bar available to the
state or its officers, employees, or contractors,
(Emphasis added).
The legislature did no: define "employee" for purposes of section
104.002 or section 104.008 of 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 511.011.
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 104.002. Therefore,
it is useful in determining the definition of "employee" for purposes
of section 104.001 to look to definitions of "employee" in tort cases
in which employer liability depends on the tortfeasor's being an
employee rather than an independent contractor. See also Civil
Practice and Remedies Code i101.001(1) (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 thE employer has the right to control the
details of the work. Newspapers Inc. v. Love, 380 S.W.2d 582, 591
(Tex. 1964). See also AttD:rney General Opinions H-180 (1973); H-94
(1973). Also, it is the right to control the details of the work
rather than the exercise 1) that right that governs the issue of
whether someone is an employee. Great Western Drilling Co. v.
Simmons, 302 S.W.2d 400, 41)3 (Tex. 1957). As we pointed out above,
the savings and loan commifsioner, who is an employee of the finance
commission, has the right to control the work of conservators,
supervisors, and liquidating agents. V.T.C.S. art. 8523, 8.08(c),p. 2413
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-525, text, July 17, 1986; (https://texashistory.unt.edu/ark:/67531/metapth272965/m1/4/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.