Can part-time doctors and nurses at a Texas county jail get state indemnification and a free legal defense?

Plain-English summary

Liberty County wanted to recruit part-time physicians and nurses to treat inmates in its jail, and to sweeten the offer it asked whether those professionals could get state-funded indemnification and a free legal defense if they were sued. The county attorney pointed to chapters 104 and 110 of the Civil Practice and Remedies Code. The Attorney General answered each separately.

Chapter 104 is the statute under which the state indemnifies and defends its own employees and officials, including, for some categories, physicians and psychiatrists under contract with a "state agency, institution, or department." The opinion concluded that does not reach county jail staff. A county is not a state agency, institution, or department, and a prior opinion (JM-197) had already read the predecessor statute to apply only to officers and employees of bodies with statewide jurisdiction. The Legislature had not changed that, so a doctor or nurse working for or under contract with the county jail gets no chapter 104 indemnification or legal representation.

Chapter 110 is different: it indemnifies health care professionals who devote at least 10 percent of their patient encounters to "charity care," up to a damages cap, in malpractice claims. Whether any particular professional clears that 10 percent threshold depends on the overall shape of their practice, which is a fact question the opinion said it could not decide. It could, though, say what counts. Care provided "under" the Indigent Health Care and Treatment Act qualifies as charity care, and some indigent inmates' care is ultimately delivered through that Act. So a professional who treats inmates under a contract to provide care in compliance with that Act may count those encounters toward the 10 percent. But a contract that just pays a flat fee plus a per-patient fee, regardless of how the patient's care is funded, would not necessarily qualify, because incidentally treating a patient who happens to be covered by the Act is not the same as providing care "under" it.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The indemnification provisions in chapters 104 and 110 of the Civil Practice and Remedies Code, and the charity-care definitions and dollar caps described here, have been amended since 1992.

Background and statutory framework

Chapter 104 of the Civil Practice and Remedies Code provides that the state will indemnify and defend state employees and officials in certain actions. Section 104.001 lists who is covered (including, under subsection (3), "a physician or psychiatrist licensed in this state who was performing services under a contract with any state agency, institution, or department," and under subsection (1) employees, board members, and officers of a state agency, institution, or department), section 104.002 defines the conduct entitled to indemnification, and section 104.004 directs the attorney general to defend those persons. The pivotal question was whether the county qualified as a "state agency, institution, or department." Drawing on Attorney General Opinion JM-197 (1984), which read the predecessor statute (former article 6252-26, V.T.C.S.) to apply only to officers and employees of state bodies with statewide jurisdiction, and on JM-1005 (1989) (river authority officials not covered), the opinion concluded the county did not qualify and the Legislature had not added county personnel. So chapter 104 did not cover the jail's health care professionals.

Chapter 110 indemnifies "health care professionals" (defined in section 110.001(3) to include licensed physicians, advanced practice nurses or certified nurse midwives registered with the Board of Nurse Examiners, and physician assistants recognized by the Board of Medical Examiners) who render charity care, up to a cap, in malpractice claims. Section 110.004 set the indemnity cap (not to exceed $25,000, with up to $100,000 for claims arising from prenatal care, labor and delivery, or emergency care). Section 110.001(2) required that the professional render charity care in at least 10 percent of patient encounters during the policy year. Section 110.001(1) defined "charity care or services" as care provided under listed state and federal programs for the needy, including the Indigent Health Care and Treatment Act (chapter 61, Health and Safety Code), Medicaid (Human Resources Code chapter 32), the Maternal and Infant Health Improvement Act, the Texas Primary Health Care Services Act, the Chronically Ill and Disabled Children's Services Act, and certain federally funded migrant or community health center contracts (42 U.S.C. §§ 254b, 254c).

Whether a particular professional met the 10 percent threshold was a fact question outside the opinion process. But on the legal question of what counts, the opinion looked to article 104.002(d) of the Code of Criminal Procedure, under which a county jail prisoner must pay for medical services unless indigent, in which case the county assists the prisoner in applying for reimbursement under the Indigent Health Care and Treatment Act or through the prisoner's hospital district. So some indigent inmates' care ends up provided under that Act, and care provided under that Act is charity care. The opinion drew the line at contracts genuinely "under" the Act versus flat-fee arrangements where the professional is paid regardless of the patient's funding source; the latter does not necessarily qualify.

Common questions

Do county jail doctors and nurses get the state's chapter 104 legal defense?
No. The opinion concluded chapter 104 covers state employees and officials, not county ones. Because a county is not a "state agency, institution, or department," a health care professional employed by or contracting with the county jail is not entitled to indemnification or a state-provided defense under chapter 104.

Does treating jail inmates automatically make a doctor eligible under chapter 110?
No. Chapter 110 eligibility depends on whether at least 10 percent of the professional's patient encounters are charity care, which turns on the whole practice and is a fact question the opinion could not resolve. The opinion rejected the idea that treating jail inmates automatically qualifies a professional.

When does treating indigent inmates count as charity care?
When the care is provided under a contract to deliver it in compliance with the Indigent Health Care and Treatment Act (or another listed program). A contract that simply pays a flat fee plus a per-patient fee regardless of the patient's payment source does not necessarily count, because incidental treatment of a patient covered by the Act is not the same as care provided "under" the Act.

Citations

• Civil Practice and Remedies Code §§ 104.001, 104.002, 104.004 (ch. 104); §§ 110.001(1), (2), (3), (7), 110.002, 110.004 (ch. 110)
• V.T.C.S. art. 6252-26 (predecessor to ch. 104)
• Code of Criminal Procedure art. 104.002(d)
• Indigent Health Care and Treatment Act, ch. 61, Health and Safety Code; Human Resources Code ch. 32; Health and Safety Code chs. 31, 32, 35; 42 U.S.C. §§ 254b, 254c
• Tex. Att'y Gen. Ops. JM-197 (1984), JM-1005 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0098
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0098.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 18, 1992

Honorable A. J. Hartel
Liberty County Attorney
P. O. Box 9127
Liberty, Texas 77575-9127

Opinion No. DM-98

Re: Whether health care professionals employed on a part-time basis by a county to provide medical services to inmates in a county jail are entitled to indemnification and legal representation under sections 104.001, 104.004 and 110.002 of the Civil Practice and Remedies Code (RQ-158)

Dear Mr. Hartel:

You inform us that Liberty County is attempting to employ physicians and nurses to provide medical care to inmates in the Liberty County Jail on a part-time basis. We have also been informed that the county currently employs a physician who is paid a salary of $1,000.00 per month and also receives $10.00 per patient examined and $3.00 per drug prescription reviewed. Registered nurses are paid for their services on an hourly basis. You explain that in order to attract health care professionals to work in the county jail, Liberty County would like to offer them the greatest benefits available, including state-funded indemnification and legal representation if possible. To that end, you ask whether health care professionals employed on a part-time basis by the Liberty County Jail to provide medical services to inmates are entitled to indemnification and legal representation under sections 104.001, 104.004, and 110.002 of the Civil Practice and Remedies Code.

Chapter 104 of the Civil Practice and Remedies Code provides that the state will indemnify and defend state employees and officials in certain kinds of legal actions. Specifically, section 104.001 of the Civil Practice and Remedies Code provides that the state shall indemnify a state employee or official for damages in an action based on an act or omission by the person in the course and scope of the person's state duties and lists those persons entitled to indemnification. See Civ. Prac. & Rem. Code § 104.002 (defining conduct entitled to indemnification). In addition, section 104.004 provides that the attorney general shall defend those persons listed in section 104.001.

Certain physicians and psychiatrists are among the categories of persons entitled to indemnification and legal representation under sections 104.001 and 104.004. Specifically, section 104.001, subsection (3) indemnifies "a physician or psychiatrist licensed in this state who was performing services under a contract with any state agency, institution, or department . . . when the act or omission on which the damages are based occurred." In addition, subsection (1) of that provision indemnifies "an employee, a member of the governing board, or any other officer of a state agency, institution, or department." Therefore, the critical question for purposes of determining whether a physician or nurse employed by or under contract with the Liberty County Jail is entitled to indemnification and legal representation under chapter 104 of the Civil Practice and Remedies Code is whether Liberty County qualifies as a "state agency, institution, or department."

In Attorney General Opinion JM-197 (1984), this office considered whether county attorneys are entitled to indemnification and legal representation under former article 6252-26, V.T.C.S., the predecessor statute to chapter 104 of the Civil Practice and Remedies Code. Reasoning that "article 6252-26 was meant to apply only to officers and employees of state agencies, institutions and departments having statewide jurisdiction," and noting that state indemnification for certain county officials and employees is provided in other statutes, we concluded that county attorneys were not covered by the statute. Id. at 2-3; see also Attorney General Opinion JM-1005 (1989) (officials and employees of river authority not entitled to indemnification under chapter 104 of the Civil Practice and Remedies Code). The legislature has not amended chapter 104 since 1984 to include county employees and officials within the definition of persons entitled to indemnification and legal representation. Therefore, we must conclude that a health care professional employed by or under contract with Liberty County would not be entitled to indemnification or legal representation under chapter 104.

Next we consider whether a health care professional employed by Liberty County to provide medical care to inmates of the Liberty County Jail would be entitled to indemnification under chapter 110 of the Civil Practice and Remedies Code. Generally, chapter 110 of the Civil Practice and Remedies Code provides that the state will indemnify health care professionals[2] who devote a certain percentage of their professional energies to "charity care or services" in a medical malpractice claim in an amount not to exceed $25,000.00. See Civ. Prac. & Rem. Code § 110.004.[3] A health care professional is entitled to indemnification if he or she "renders charity care in at least 10 percent of the patient encounters engaged in by said health care professional during the policy year in which the claim was made." Id. § 110.001(2).[4] "Charity care or services" is defined as care or services provided by a health care professional under several state and federal statutes that provide health care for the needy, including the Indigent Health Care and Treatment Act, chapter 61, Health and Safety Code.[5] Id. § 110.001(1).

Your letter and the brief submitted in support of your request suggest that because many of the inmates in the Liberty County Jail are indigents, a health care professional who provides medical care for inmates would automatically qualify for indemnification pursuant to chapter 110. This is not the case. As noted above, whether a particular health care professional is qualified for indemnification will depend upon the extent to which his or her overall practice is devoted to the treatment of the needy under certain state and federal statutes. Such a determination involves questions of fact which cannot be resolved in the opinion process. Although we cannot address whether a particular health care professional is entitled to indemnification under chapter 110, we can address the question whether treatment of indigent county jail inmates under the part-time arrangement you describe would constitute "charity care," as defined by section 110.001(1), for purposes of the requisite ten percent of a health care professional's yearly patient encounters.

Chapter 110 defines "charity care or services" to include "care or services provided by a health care professional under [the Indigent Health Care and Treatment Act]." Article 104.002 of the Code of Criminal Procedure provides that a prisoner in a county jail who receives medical services is required to pay for the services when rendered. Code Crim. Proc. art. 104.002(d). If, on the other hand, a prisoner "cannot pay for such services because of indigence, as defined in the Indigent Health Care and Treatment Act, [the] county shall assist the prisoner in applying for reimbursement through [the] Act or the hospital district of which he is a resident." Id. Thus, the medical care of some indigent inmates will ultimately be provided pursuant to the Indigent Health Care and Treatment Act.

We believe that treatment of such inmates pursuant to a contract to provide medical care under the Indigent Health Care and Treatment Act constitutes "care or services provided by a health care professional under [the act]" and therefore qualifies as "charity care or services" under chapter 110. On the other hand, we believe that treatment of such inmates under a contract such as the one you describe, where the health care professional agrees to render medical care in exchange for a flat fee and a per patient fee, regardless of the patient's payment source, would not necessarily qualify as "charity care or services." Chapter 110 explicitly requires that medical care be provided "under" the Indigent Health Care and Treatment Act. Thus, the contract with the health care professional must be drafted in light of the requirements of the Indigent Health Care and Treatment Act. A health care professional's incidental treatment under an arrangement such as the one you describe of a patient who happens to be entitled to medical care under the Indigent Health Care and Treatment Act does not necessarily constitute care under the act.

In sum, the medical care of county jail inmates pursuant to a contract to provide such care under the Indigent Health Care and Treatment Act constitutes "charity care."[6] Therefore, although the position of part-time physician or nurse in a county jail would not automatically qualify a health care professional for state indemnification, a health care professional who treats county jail inmates pursuant to a contract to provide such care in compliance with the Indigent Health Care and Treatment Act may count such patient encounters toward the ten percent patient encounter minimum required for indemnification under chapter 110.

SUMMARY

Health care professionals employed on a part-time basis by the Liberty County Jail to provide medical services to county jail inmates are not entitled to indemnification or legal representation under chapter 104 of the Civil Practice and Remedies Code.

The determination whether a particular health care professional employed on a part-time basis by the Liberty County Jail to provide medical care to inmates is entitled to indemnification under chapter 110 of the Civil Practice and Remedies Code depends upon the overall nature of his or her practice and involves questions of fact which cannot be resolved in the opinion process. If a health care professional provides medical care to indigent inmates pursuant to a contract to provide such care in compliance with the Indigent Health Care and Treatment Act, such care constitutes "charity care or services" for purposes of section 110.001(1), and counts toward the ten percent patient encounter minimum required for indemnification under that chapter. Treatment of such inmates under a contract where the health care professional agrees to render medical care in exchange for a flat fee and a per patient fee, regardless of the patient's payment source, would not necessarily qualify as "charity care or services."

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[2] For purposes of chapter 110 of the Civil Practice and Remedies Code, a "health care professional" includes a person licensed to practice medicine under the Texas Medical Practice Act, a person registered by the Board of Nurse Examiners as an advanced practice nurse or a certified nurse midwife, or a person recognized by the Board of Medical Examiners as a physician assistant. Civ. Prac. & Rem. Code § 110.001(3).

[3] Section 110.004(a) authorizes indemnification in an amount up to $100,000.00 in cases resulting from prenatal care, labor and delivery, or resulting from emergency care.

[4] A "patient encounter" means "an occasion on which a health care professional renders professional health care services to a patient." Id. § 110.001(7).

[5] Other provisions included in the definition of "charity care or services" include Medicaid under chapter 32 of the Human Resources Code, the Maternal and Infant Health Improvement Act, chapter 32 of the Health and Safety Code, the Texas Primary Health Care Services Act, chapter 31 of the Health and Safety Code, the Chronically Ill and Disabled Children's Services Act, chapter 35 of the Health and Safety Code, or a contract with a migrant or community health center that receives funds pursuant to a specified federal program, 42 U.S.C. §§ 254b, 254c. Id. § 110.001(1).

[6] Of course, the medical care of county jail inmates pursuant to a contract to provide such care under any of the other statutes or programs listed in section 110.001(1), see note 5, supra, would also constitute "charity care."