Are Texas resource conservation council volunteers protected by charitable immunity?

Plain-English summary

The Charitable Immunity and Liability Act of 1987 (chapter 84 of the Civil Practice and Remedies Code) shields the officers, directors, trustees, and volunteers of a "charitable organization" from most civil liability for things they do within the scope of their duties. The Act also caps a charitable organization's own liability, as long as it carries the required insurance. So whether a group counts as a "charitable organization" under the Act decides whether its people are protected when something goes wrong.

Representative David Counts asked whether a resource conservation and development council qualifies. These councils are nonprofits, usually federally tax-exempt under section 501(c)(3), that rural communities set up under federal law (16 U.S.C. chapter 54, subchapter V) to write and carry out an area plan for conserving land, developing natural resources, and improving rural living conditions. The plan can include land conservation, water management, community development (rural water and waste systems, recreation, housing, health and education facilities, transportation), and other elements like energy conservation and wildlife habitat protection.

The Attorney General concluded that a council's purposes can match the Act's definition of a charitable organization in section 84.003(1)(A). The Act itself does not define "charitable purposes" or "promotion of social welfare," so the office borrowed from two sources. For "charitable purpose," it used the Charitable Raffle Enabling Act's definition, "initiating, performing, or fostering worthy public works in this state," which the office had previously said closely tracks the courts' charitable-trust definition. A council can do exactly that, building dams and reservoirs, developing rural water and waste disposal systems, improving recreation, and providing health and education facilities. For "promotion of social welfare," the office used its earlier chamber-of-commerce opinion (JM-1257), which read that phrase to mean an organization "that provides services to individuals who are in need of them." A council can fit there too, by controlling erosion on farmland, improving rural housing, and supplying health, education, and transportation services.

But the office did not declare any particular council immune. Whether a specific council is "organized and operated exclusively" for a charitable purpose, or exclusively to promote social welfare, or for educational purposes, is a fact question, and the office repeatedly said fact questions are inappropriate to the opinion process. The bottom line: a resource conservation and development council can fit the charitable-organization definition, but whether a given one actually does is decided on its own facts, not by this opinion.

Currency note

This opinion was issued in 1996. 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.

This opinion construed the Charitable Immunity and Liability Act of 1987 (chapter 84 of the Civil Practice and Remedies Code) as it stood in 1996, along with the Charitable Raffle Enabling Act (V.T.C.S. art. 179f) and the federal resource conservation and development program (16 U.S.C. chapter 54, subchapter V). Chapter 84's definitions and liability caps have been amended since, including changes to the insurance thresholds and covered organizations. Read this page for the office's 1996 reasoning, and verify the current Civil Practice and Remedies Code before relying on any specific provision.

What the opinion meant at the time

For resource conservation and development councils: The opinion meant a council's purposes could place it within the Act's definition of a charitable organization under section 84.003(1)(A), but it did not guarantee that any particular council qualified; that depended on the council's actual organization and operation.

For council officers, directors, trustees, and volunteers: The opinion meant that if their council was a charitable organization under the Act, they could be immune from civil liability for acts within the scope of their duties, subject to the Act's exceptions and (for the organization's liability cap) its insurance requirements.

For anyone trying to apply the Act to a specific council: The opinion meant the office would not decide the ultimate question. Whether a council is organized and operated "exclusively" for a charitable purpose or to promote social welfare is a fact question, which an AG opinion cannot investigate or resolve.

For lawyers: The office filled the Act's undefined terms with the Charitable Raffle Enabling Act's "worthy public works" definition of charitable purpose (art. 179f, § 2(a)(2)) and JM-1257's "services to individuals who are in need of them" gloss on social welfare, concluded a council's statutory functions can satisfy section 84.003(1)(A), and left the "exclusively organized and operated" inquiry as a fact question.

Common questions

Does the Charitable Immunity and Liability Act protect resource conservation council volunteers?
It can. The office concluded a council can fit the Act's definition of a charitable organization, and if it does, the Act protects its volunteers (and officers, directors, and trustees) from most civil liability for acts within the scope of their duties. Whether a specific council qualifies is a fact question.

What makes an organization "charitable" under the Act?
The Act covers, among others, a 501(c)(3) nonprofit organized and operated exclusively for charitable, religious, educational, youth-recreation, or similar purposes, or exclusively to promote social welfare by primarily promoting the common good and general welfare of a community. The office focused on the charitable-purpose and social-welfare branches.

Why couldn't the Attorney General just say yes?
Because whether a particular council is "organized and operated exclusively" for a qualifying purpose turns on its actual activities and structure. The office said deciding that requires investigating and resolving fact questions, which it cannot do in an opinion.

What kinds of council activities count?
The office pointed to building dams and reservoirs, developing rural water and waste disposal systems, improving recreation, and providing health and education facilities (as "worthy public works"), and to controlling erosion, improving rural housing, and supplying health, education, and transportation services (as serving people in need).

Background and statutory framework

The Act's protection turns on the defined term "charitable organization." Section 84.003(1)(A) reaches a federally tax-exempt 501(c)(3) nonprofit that is organized and operated exclusively for charitable, religious, educational, youth-sports or youth-recreation, cruelty-prevention, or similar purposes, or exclusively for the promotion of social welfare by primarily promoting the common good and general welfare of the people in a community. (The office noted the definition also reaches certain other organizations under subsections (1)(B) and (C), and homeowners associations, but resolved the question under (1)(A).) If an organization qualifies, its officers, directors, and trustees are generally immune for in-scope acts, and its direct service volunteers are immune for good-faith acts in the course and scope of their functions; separate provisions cap the organization's own money-damages liability when it carries specified insurance.

Because the Act does not define "charitable purposes" or "promotion of social welfare," the office looked elsewhere. It took "charitable purpose" from the Charitable Raffle Enabling Act (V.T.C.S. art. 179f), which defines it as "initiating, performing, or fostering worthy public works in this state," noting the office had previously found that definition closely tracks the charitable-trust definition courts use (Opinion JM-1180). For "promotion of social welfare," it relied on Opinion JM-1257, which addressed whether a chamber of commerce is a charitable organization. JM-1257 had reviewed precedent on a chamber's economic-development purpose (citing, among others, 26 C.F.R. § 1.501(c)(6)-1, National Muffler Dealers Ass'n v. United States, and Kordus v. City of Garland) and concluded that an organization exclusively promoting social welfare is one "that provides services to individuals who are in need of them," which a chamber of commerce is not.

Applying those tests, the office found a resource conservation and development council can serve a charitable purpose, because it may initiate, perform, or foster public works, and can promote social welfare, because it may provide services to people in need. The federal program's required area-plan elements (16 U.S.C. § 3452 and related provisions) supplied concrete examples: erosion control, water management, rural water and waste systems, recreation, housing, health and education facilities, and transportation. The office then drew the line it had drawn throughout: whether a particular council is exclusively organized and operated for any of these purposes, including educational purposes, is a question of fact outside the opinion process (citing the line of opinions including DM-98, H-56, M-187, and O-2911).

Citations

Statutory and regulatory provisions discussed:

• Civil Practice & Remedies Code ch. 84 (Charitable Immunity and Liability Act of 1987), § 84.003(1)(A) (definition of charitable organization), § 84.004 (immunity for officers, volunteers, and the organization), and § 84.007 (insurance requirement for liability limits)
• 16 U.S.C. ch. 54, subch. V (resource conservation and development program), §§ 3452(1), 3453, 3456(a)(2) (area plan and funding eligibility)
• 26 U.S.C. § 501(c)(3), (4) (tax-exempt status) and § 528(c) (homeowners associations)
• V.T.C.S. art. 179f (Charitable Raffle Enabling Act), § 2(a)(2) (definition of charitable purpose)
• 26 C.F.R. § 1.501(c)(6)-1 (business leagues)

Cases cited:

• National Muffler Dealers Ass'n v. United States, 565 F.2d 845 (2d Cir. 1977), aff'd, 440 U.S. 472 (1979)
• Kordus v. City of Garland, 561 S.W.2d 260 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.)

Attorney General opinions cited:

• JM-1257 (1990), JM-1199 (1990), JM-1180 (1990), JM-516 (1986), H-397 (1974), DM-98 (1992), H-56 (1973), M-187 (1968), O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0402
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0402.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

July 16, 1996

The Honorable David Counts
Chair
Committee on Natural Resources
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-402

Re: Whether the Charitable Immunity and Liability Act of 1987, Civil Practice and Remedies Code chapter 84, applies to a resource conservation and development council established under 16 U.S.C. chapter 54, subchapter V (RQ-881)

Dear Representative Counts:

The Charitable Immunity and Liability Act of 1987 (the act)[1] generally deems a charitable organization's officers and volunteers immune from civil liability for actions taken in the scope of official or volunteer 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 ask 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 Internal 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 area plan "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 States."[3] An area plan must include at least one or more of four elements:

(A) a land conservation element, the purpose of which shall be to control erosion and sedimentation;

(B) 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] [Footnote 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 liability for any act or omission, done in the scope of the officer's duties, that results in death, damage, or injuries.[5] 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 functions within the organization.[6]

An organization's status as charitable under the act depends largely upon the purpose the organization serves. For example, a nonprofit corporation exempt from 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."[7] Of the listed purposes, we believe a resource 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)(B) of the Charitable Raffle Enabling Act,[8] 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 act.[9] Nevertheless, this office has stated that article 179f's definition of charitable purpose "closely tracks" the definition courts use in discussing the establishment of charitable trusts.[10] Accordingly, we believe the definition of the term "charitable purpose[]" 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.[11] 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.[13]

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 industries and encourage private industry and business.[15] 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 general welfare of the people in a community.[16]

Without delineating "the full range of activities that might be performed by organizations that are 'organized 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 organization 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 definition of charitable organization.[18]

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 facilities, provide health and education facilities, and satisfy transportation and communication needs. Of course, whether a particular resource conservation and development council exclusively serves a charitable purpose is a question of fact that is inappropriate to the opinion process.[20]

We believe a resource conservation and development council also may be organized 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 development council may be involved in controlling erosion from agricultural land, improving the quality of rural housing, providing adequate health and education facilities, and satisfying essential transportation and communication needs, among other things. Whether, of course, 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 council, established pursuant to 16 U.S.C. chapter 54, subchapter V, may be consistent with the purposes a charitable organization must serve under Civil Practice and Remedies Code section 84.003(1)(A). Whether, however, a particular resource conservation 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 Civil Practice and Remedies Code is a question of fact.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes:

[1] Civ. Prac. & Rem. Code ch. 84.

[2] 26 U.S.C.

[3] 16 U.S.C. § 3453; see also id. § 3456(a)(2).

[4] Id. § 3452(1).

[5] Civ. Prac. & Rem. Code § 84.004(a); see also id. §§ 84.004(c), .007 (exceptions). See generally Attorney General Opinion JM-1257 (1990) at 1-2.

[6] Civ. Prac. & Rem. Code § 84.004(b). The act limits employee and organizational liability to money damages in a maximum amount. Id. §§ 84.004-.006. These limitations on liability apply only to a charitable organization that carries liability insurance in specified amounts. Id. § 84.007(a).

[7] Id. § 84.003(1)(A). A charitable organization also includes a homeowners association as defined by 26 U.S.C. § 528(c), and an organization, not exempt from federal income tax or listed as exempt under 26 U.S.C. § 501(c)(3), (4), that serves bona fide charitable, religious, or educational purposes; that seeks to prevent cruelty to children or animals or to promote youth sports or youth recreation; or that operates exclusively to promote social welfare by promoting the common good and general welfare. Id. § 84.003(1)(B), (C). Because we believe the issue you raise may be resolved under section 84.003(1)(A) of the Civil Practices and Remedies Code, we do not discuss subsections (1)(B) and (C).

[8] V.T.C.S. art. 179f.

[9] 67 Tex. Jur. 3d Statutes § 106, at 684 (1989).

[10] Attorney General Opinion JM-1180 (1990) at 2 (and sources cited therein); see also Black's Law Dictionary 213 (5th ed. 1979).

[11] Attorney General Opinion JM-1257 (1990) at 5.

[12] Id. at 1.

[13] Id.

[14] Id.

[15] Id. at 5; see 26 C.F.R. § 1.501(c)(6)-1; National Muffler Dealers Ass'n v. United States, 565 F.2d 845 (2d Cir. 1977), aff'd, 440 U.S. 472 (1979); Kordus v. City of Garland, 561 S.W.2d 260 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.); Attorney General Opinions JM-1199 (1990), JM-516 (1986), H-397 (1974).

[16] Attorney General Opinion JM-1257 (1990) at 5 (quoting Civ. Prac. & Rem. Code § 84.003(1)(A)).

[17] Id. at 6.

[18] Id. at 6-7.

[19] Whether a particular public works project is "worthy," see V.T.C.S. art. 179f, § 2(a)(2)(B), is a question of fact that is inappropriate to the opinion process. See, 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.

[20] See, 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.

[21] See Attorney General Opinion JM-1257 (1990) at 6.

[22] See, 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.