Did Texas have to indemnify volunteers, contractors, and state-agency workers who helped a regional poison control center?

TX AG Opinion DM-0409: Who qualified for poison-center indemnification?

Plain-English summary

The Advisory Commission on State Emergency Communications asked which people involved with Texas's regional poison control centers were entitled to state indemnification. Health and Safety Code section 777.007 required the state to indemnify a poison control center and an employee of a center under Civil Practice and Remedies Code chapter 104. The Attorney General concluded that the section's plain language stopped at employees.

Because chapter 777 did not define employee, the opinion used two characteristics. First, the poison control center had to possess the right to control the details of the person's work, the traditional line between an employee and an independent contractor. Second, the center and worker had to have an express or implied agreement for compensation. The opinion read compensation into the ordinary meaning of employment and drew support from the Texas Tort Claims Act's “paid service” definition and workers' compensation decisions.

Under that definition, volunteers were not employees because they had no contractual expectation of compensation. Independent contractors were not employees because the center lacked the right to control their work details. A person employed by another state agency remained that agency's employee even when statutory duties required work with a poison control center. Section 777.007 therefore did not indemnify staff of the Advisory Commission, Department of Health, General Services Commission, or poison-control coordinating committee merely because they assisted a center.

Other laws could still apply. Chapter 104 separately required indemnification of state-agency officers and employees in specified circumstances. The opinion treated the Advisory Commission, Department of Health, and General Services Commission as state agencies, so their personnel could fall within chapter 104 when the conduct occurred in the course and scope of office or employment and met chapter 104's cause-of-action requirements. Health and Safety Code section 771.053(b) also could exempt Advisory Commission members from liability.

The opinion could not classify specialty consultants without facts. A consultant who was a compensated worker subject to the center's control was an employee covered by section 777.007. A consultant who did not meet that test was not covered by that section, though another statute might apply.

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.

Who this opinion affected (as of 1996)

Regional poison control center employees: Section 777.007 covered workers who had a right to compensation and whose work details the center had the right to control.

Volunteers: The opinion concluded they were outside section 777.007 because they had no promise or expectation of compensation.

Independent contractors and specialty consultants: Contractors were outside the employee definition when the center lacked the right to control their work. A specialty consultant's status required facts about control and compensation.

State-agency personnel: Work performed for a poison control center did not turn an employee of another agency into a center employee, but chapter 104 could independently cover qualifying state officers and employees.

Common questions

Did section 777.007 cover poison-center volunteers?
No. The opinion concluded that an employee had to have an express or implied contractual right to compensation, which volunteers lacked.

Did paying a consultant automatically make the consultant an employee?
No. Both elements were necessary: compensation and the center's right to control the details of the work. A paid consultant not subject to that control was an independent contractor.

Were Advisory Commission or Department of Health employees covered?
Not under section 777.007 merely because they worked with a poison control center. The opinion said chapter 104 could separately indemnify state-agency officers and employees when its conditions were met.

Why did the opinion use the Tort Claims Act's employee definition?
Both laws concerned governmental liability for a worker's conduct, and chapter 777 supplied no definition. The opinion therefore used the Tort Claims Act's paid-service concept together with the common-law right-to-control test.

Were specialty consultants covered?
The opinion could not answer categorically. Coverage depended on whether the consultant was compensated by the center and subject to its right of control.

Background and statutory framework

Chapter 777 designated regional poison control centers and required them to provide continuous poison-information services, public and professional education, toxicologic assistance to state agencies, and medical-toxicology consultation. Health and Safety Code section 777.004(a) required centers to use physicians, pharmacists, nurses, other professionals, and support staff trained in toxicology and poison control.

Section 777.007 required indemnity for a poison control center and an employee under chapter 104. When the Legislature enacted the provision in 1993, chapter 104 did not define employee. A 1995 amendment expanded chapter 104 to cover uncompensated service, but the opinion declined to import that later amendment backward into the earlier chapter 777 provision.

Attorney General Opinion JM-525 had used the right-to-control test to distinguish employees from independent contractors under chapter 104. DM-0409 added compensation to distinguish employees from volunteers. It relied on Civil Practice and Remedies Code section 101.001's paid-service language, Texas Employers Ins. Ass'n v. Burrell, and ordinary dictionary usage. It treated the inclusion of volunteers in section 102.001(1) as a context-specific exception rather than the general rule.

Citations

Statutes:

• Tex. Health & Safety Code §§ 771.031, 771.051, 771.053, 771.071, 771.072, 771.075
• Tex. Health & Safety Code §§ 777.001, 777.002, 777.003, 777.004, 777.007, 777.008, 777.009
• Tex. Civ. Prac. & Rem. Code §§ 101.001, 101.002, 102.001, 104.001, 104.002
• Tex. Gov't Code §§ 2109.001, 2109.002, 2109.004, 2151.001, 2151.002, 2152.051, 2155.061, 2170.051

Cases:

• Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964)
• Great Western Drilling Co. v. Simmons, 302 S.W.2d 400 (Tex. 1957)
• Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ)
• Brown v. Darden, 50 S.W.2d 261 (Tex. 1932)
• Haavistola v. Community Fire Co., 812 F. Supp. 1379 (D. Md.), rev'd on other grounds, 6 F.3d 211 (4th Cir. 1993)
• Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1994)
• Texas Employers Ins. Ass'n v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref'd n.r.e.)
• Nobles v. Texas Indem. Ins. Co., 24 S.W.2d 367 (Tex. Comm'n App. 1930, judgm't adopted)
• Riverbend Country Club v. Patterson, 399 S.W.2d 382 (Tex. Civ. App.-Eastland 1965, writ ref'd n.r.e.)
• Graves v. Women's Professional Rodeo Ass'n, 907 F.2d 71 (8th Cir. 1990)

Related opinions:

• Tex. Att'y Gen. Op. JM-525 (1986); DM-346 (1995); JM-1005 (1989); H-297 (1974)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0409
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0409.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

August 20, 1996

Mr. James D. Goerke
Executive Director
Advisory Commission on State Emergency Communications
333 Guadalupe Street, Suite 2-212
Austin, Texas 78701-3942

Opinion No. DM-409

Re: Whether Health and Safety Code section 777.007 requires the state to indemnify an individual who is not an employee of a regional poison control center and related questions (RQ-874)

Dear Ms. Boyd:

Section 777.007 of the Health and Safety Code requires the state to indemnify an
employee of a regional poison control center under Civil Practice and Remedies Code
chapter 104. We understand you to ask primarily whether section 777.007 requires the
state to indemnify an individual who is not an employee of a regional poison control cen-
ter. In our opinion, the plain language of section 777.007 limits indemnity under that
section to employees; it does not indemnify individuals who are not employees of a poison
control center. Thus, section 777.007 does not require the state to indemnify a volunteer
and an independent contractor, nor does it require the state to indemnify an employee of a
state agency whose job involves performing some work for a poison control center. An-
other statute, however, may indemnify an employee of a state agency acting within the
scope of his or her official duties.

We believe it will be helpful to begin by discussing Health and Safety Code chapter
777, which designates six health-care facilities as regional poison control centers.'_ Each
poison control center must provide a twenty-four hour, toll-free telephone referral service
that provides to the public and health-care professionals information on ingested poisons
and exposure to poisons.2 Moreover, a poison control center must attempt to educate the
public about poison prevention and health-care professionals about the treatment of poi-

Health & Safety Code § 777.001(a). Health and Safety Code section 777.001(a) designates as
the six regional poison control centers the University of Texas Medical Branch at Galveston; the Dallas
County Hospital District/North Texas Poison Center, The University of Texas Health Science Center at
San Antonio; RE. Thomason General Hospital, El Paso County Hospital District; Northwest Texas Hospi-
tal, Amarillo Hospital District; and Scott and White Memorial Hospital, Temple. The Texas Board of
Health may designate a seventh regional poison control center in Harris County. Id. § 777.001(c).

2Id. § 777.002(a). Indeed, each regional poison control center must meet the criteria of the
American Association of Poison Control Centers, and that association requires a regional poison control
center to provide information to health-care professionals and the public 24 hours each day, 365 days per
year. See American Ass’n of Poison Control Centers, Criteria for Certification as a Regional Poison
Center pt. II.A (Jan. 1996).

son and overdose victims, provide toxicologic? assistance to state agencies, and be avail-
able to consult on medical toxicology.4 To carry out its functions, a poison control center
is required to “use” physicians, pharmacists, nurses, other professionals, and support staff
trained in various aspects of toxicology and poison control and prevention.‘

Section 777.007, about which you specifically ask, requires the state to indemnify
“a poison control center and an employee of a poison control center under” Civil Practice
and Remedies Code chapter 104.6 In your letter to this office, you have described various
individuals and organizations that are involved with a poison control center: the Advisory
Commission on State Emergency Communications and its personnel; the Texas Depart-
ment of Health and its personnel; personnel of the General Services Commission; the
members of the coordinating committee on poison control; health-care professionals who
volunteer their time to the poison control center; and specialty consultants who provide, as
you state, “sophisticated toxicology or patient care information in their areas of expertise,”
e.g., herpetology, botany, and forensic toxicology.”? As we understand your question, you
wish to know which, if any, of these persons section 777.007 requires the state to in-
demnify, to the extent they serve a poison control center.

Aside from volunteer health-care professionals and specialty consultants, the enti-
ties you list require some explanation. The first entity, the Advisory Commission on State
Emergency Communications, is created by Health and Safety Code chapter 771. Twelve
of its sixteen members are appointed by various public officials; the remaining four mem-
bers sit on the advisory commission because of another public office they hold.* With

3Toxicology is a science that deals with poisons and their effects. WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY 1248 (1990).

‘Health & Safety Code § 777.003.

Id. § 777.004(a). To be certified by the American Association of Poison Control Centers as a
regional poison center, a center must have at least one specialist in poison information in the center at all
times, sufficient additional staff promptly to handle the center’s incoming calls, and the medical director
or qualified designee available, at least on-call by telephone, at all times. Criteria for Certification as a
Regional Poison Center supra, pt. II.A.

SBecause you do not ask about a poison control center’s corporate liability, we consider only the
indemnity to which an employee is entitled.

7To be certified by the American Association of Poison Control Centers, a regional poison con-
trol center must maintain a list of specialty consultants who are available on an on-call basis. Criteria for
Certification as a Regional Poison Center supra, pt. II.C.4. A specialty consultant must be qualified to
provide sophisticated toxicology or patient-care information in the consultant’s area of expertise. Id. pt.
II.E.5. A specialty consultant should be available on-call, as needed. Id. Finally, the areas of expertise
reflected by the center’s list of consultants should mirror the types of poisonings encountered in the re-
gion. Id.

8Health & Safety Code § 771.031(a).

reference to the poison control center network, the advisory commission is to administer
the centers’ telecommunications requirements.? The advisory commission funds poison
control center services by collecting a surcharge on local exchange and intrastate long-
distance telephone charges. !°

The Texas Department of Health is established generally to protect and promote
public health.'1_ The department is governed by a six-member board, each member of
which is appointed by the governor.!2 With respect to the regional poison control centers,
the Department of Health shares rule-making authority with the Advisory Commission on
State Emergency Communications;}° it also shares with the advisory commission respon-
sibility to award grants to fund the regional poison control centers. !4

The General Services Commission, whose six members are gubernatorial appoint-
ments, 5 is generally responsible for procuring all of a state agency’s goods and services.!¢
Significant to your question, the General Services Commission must manage the operation
of a telecommunications system for all state agencies.'7 The General Services Commis-
sion also must, to the extent possible, satisfy each state agency’s telecommunications
needs.!® For purposes of the State Purchasing and General Services Act,!° a “state
agency” includes an agency in the executive branch of state government created by a state
statute.20 The Advisory Commission on State Emergency Communications, which admin-
isters the poison control centers’ telecommunications needs, qualifies as a state agency
under the State Purchasing and General Services Act.

%d. § 771.051(a(1).
10Id. §§ 771.071(a), .072(a), (d), (€), .075.
jd. § 11.002.

127g, § 11.005(a). The board employs a commissioner to administer the department, but the
commissioner is always subject to the board’s supervision. Id. §§ 11.012(a), .013(a), (b).

137g. § 777.001(b).

14Id. § 777.009.

15Gov’t Code § 2152.051.

16Id. § 2155.061(a).

17Id. § 2170.051(a).

187g § 2170.051(b).

19Gov’t Code tit. 10, subtit. D; see id. § 2151.001.

20Id. § 2151.002(2)(A).

The coordinating committee on poison control, the last entity you specifically
mention, advises the Texas Board of Health and the Advisory Commission on State
Emergency Communications.?! Six of the committee’s members are appointed by each of
the health-care institutions that serve as regional poison control centers; the remaining
nine members are appointed by other public health-care institutions and state agencies,
including the Advisory Commission on State Emergency Communications and the De-
partment of Health.

To resolve whether these entities, as well as volunteers and specialty consultants,
are entitled to indemnity under Health and Safety Code section 777.007, we must interpret
the section. On its face, section 777.007 requires the state to indemnify only an employee
of the center under Civil Practice and Remedies Code chapter 104. Consequently, anyone
who is not employed by a poison control center is not entitled to indemnity under section
777.007.

Chapter 777 of the Health and Safety Code does not, however, define the term
“employee.” Incidentally, when the legislature enacted Health and Safety Code section
777.007 in 1993,22 chapter 104 of the Civil Practice and Remedies Code also did not de-
fine the term.23 We must, therefore, define the term in context and consistent with
common usage.24 In Attorney General Opinion JM-525 this office defined the term
“employee” for purposes of Civil Practice and Remedies Code chapter 104 in light of the
statute’s purpose to indemnify an employee of the state.2> Because chapter 104 generally
renders the state liable for damages caused by an employee’s conduct, the opinion exam-

2lHealth & Safety Code § 777.008(a).

22See Act of May 27, 1993, 73d Leg., R.S., ch. 670, sec. 1, § 777.007, 1993 Tex. Gen. Laws
2495, 2497.

23Prior to 1995, Civil Practice and Remedies Code chapter 104 indemnified, among others, an
employee or officer of a state agency. See Civ. Prac. & Rem. Code § 104.001(1), amended by Act of May
9, 1995, 74th Leg., R-S., ch. 139, § 2, 1995 Tex. Sess. Law Serv. 982, 982. The Seventy-fourth Legisla-
ture amended section 104.001 to indemnify the same people but regardless of whether they performed
their services for compensation. See Act of May 9, 1995, 74th Leg., R.S., ch. 139, § 2, 1995 Tex. Sess.
Law Serv. 982, 982. To the extent that the 1995 amendment defines the term “employee” to include a
volunteer, we cannot import the definition into Health and Safety Code section 777.007; we may import a
statutory definition only into a later-enacted statute. See Brookshire v. Houston Indep. Sch. Dist., 508
S.W.2d 675, 677-78 (Tex. Civ. App.--Houston [14th Dist.] 1974, no writ) (citing Brown v. Darden, 50
S.W.2d 261 (Tex. 1932)). Because the “definition” cannot be imported, for purposes of this opinion we
discuss Civil Practice and Remedies Code chapter 104 as though the 1995 amendment to section 104.001
had not occurred. Of course, if an individual performing services for a regional poison control center is
doing so as a volunteer for a state agency to which Civil Practice and Remedies Code chapter 104 ap-
plies, the individual is indemnified under chapter 104.

24See Attorney General Opinion JM-525 (1986) at 4 (citing Gov’t Code § 311.011).

25 Id.

ined analogous private-sector tort cases in which an employer’s liability depends on the
tortfeasor’s being an employee, not an independent contractor.26 In these cases, an indi-
vidual’s status as an employee depends upon whether the employer has the right to control
the details of the work.2”7 Whether the employer actually exercises the right is inconse-
quential.2®

In our opinion, because the context of Health and Safety Code section 777.007 is
similar to that of Civil Practice and Remedies Code chapter 104, we may define
“employee” in the same way. The definition articulated by Attorney General Opinion
JM-525 is designed to distinguish an employee from an independent contractor, however;
it does not necessarily distinguish an employee from a volunteer. Nevertheless, a federal
court in Maryland has noted that the nature of a volunteer’s service is such that an
“employer” has little control over the volunteer.29 For instance, although an employer
may instruct a volunteer as to the services the employer wishes the volunteer to perform,
the employer has little control over the volunteer’s hours of work, dress, absenteeism, or
whether the volunteer satisfactorily completes the assigned tasks.>°

Furthermore, we believe an express or implied contract for compensation is an
additional characteristic of the employee-employer relationship that distinguishes an em-
ployee from a volunteer. Section 101.001 of the Civil Practice and Remedies Code
defines “employee” for purposes of the Texas Tort Claims Act?! as “a person . . . who is in
the paid service of a governmental unit .. . .”32 A volunteer is not an employee for whose
conduct a governmental unit may be liable under the Tort Claims Act.>3 Because the pur-

261d.
271d. (citing Newspapers Inc. v. Love, 380 S.W.2d 582, 591 (Tex. 1964)).
28/4 (citing Great Western Drilling Co. v. Simmons, 302 S.W.2d 400, 403 (Tex. 1957)).

29See Haavistola v. Community Fire Co., 812 F. Supp. 1379, 1386 (D.C. Md.), rev’d on other
grounds, 6 F.3d 211 (4th Cir. 1993).

39See id.
31Civ. Prac. & Rem. Code ch. 101; see id. § 101.002.

32Ip Attorney General Opinion DM-346 this office stated that commissioners of the Texas Work-
ers’ Compensation Commission are in the paid service of a governmental entity and therefore
“employees” for purposes of Civil Practice and Remedies Code chapter 101 because they are “entitled to
reimbursement for actual necessary expenses and actual lost wages due to attendance at commission
meetings.” Attorney General Opinion DM-346 (1995) at 1 n.1. Although a volunteer for a regional poi-
son control center may receive reimbursement for his or her expenses, we find no statute entitling a
volunteer to reimbursement. Cf Gov't Code § 2109.004(b)(1) (authorizing governmental entity that pro-
vides human services to reimburse volunteers for actual and necessary expenses). In addition, a volunteer
is not compensated in any way for lost wages due to the volunteer work.

33See Harris County v. Dillard, 883 S.W.2d 166, 167 (Tex. 1994).

poses of the Tort Claims Act and section 777.007 of the Health and Safety Code pertain
to the state’s liability in tort cases, we believe we must construe the term “employee”
consistently in both statutes, especially since the legislature has not provided to the con-

trary.

In addition, for purposes of the Workers’ Compensation Act, the Texas Court of
Civil Appeals has held that an individual who performs a service of his or her own free will
without any promise of remuneration is a volunteer, not an employee.*4 While the court
based its conclusion on the definition of the term “employee” in the Workers’ Compensa-
tion Act, we believe the court’s definition comports with the common understanding of
the term. For example, Black’s Law Dictionary defines employee generally as “a person
in the service of another under [a] contract of hire®> .... a person working for salary or
wages.”36 A volunteer, by contrast, is an individual who serves with no promise of remu-
neration.37

We therefore conclude that, unless defined otherwise by statute, an individual’s
status as an employee is determined not only by whether the putative employer has a right
to control the employee, but also by whether the putative employer has contracted, ex-
plicitly or implicitly, to compensate the employee for the employee’s services. We note
that Civil Practice and Remedies Code section 102.001(1) explicitly defines “employee”
for purposes of determining a local government’s tort-claim liability to include a volunteer.
We think, though, that this inclusion of volunteer is an exception to the general rule.
Moreover, we believe the definition of employee in the Texas Tort Claims Act?® more
closely fits the legislature’s intended usage of the term in Health and Safety Code section
777.007, given that both statutes involve the state’s liability for its employees’ conduct.

Consequently, in answer to your specific questions, Health and Safety Code sec-
tion 777.007 requires the state to indemnify only those individuals with whom a poison
control center contracts, explicitly or implicitly, to compensate and whose services the
poison control center has a right to control. Both of these requirements must be met. An

See Texas Employers Ins. Ass'n v. Burrell, 564 S.W.2d 133, 134 (Tex. Civ. App.--Beaumont
1978, writ ref'd n.r.e.) (citing Nobles v. Texas Indem. Ins. Co., 24 S.W.2d 367, 369 (Tex. Comm’n App.
1930, judgm’t adopted) and other cases).

35Black’s cites, for this definition of “employee,” Riverbend Country Club v. Patterson, 399
S.W.2d 382, 383 (Tex. Civ. App.--Eastland 1965, writ ref'd n.r.e.). BLACK’s LAW DICTIONARY 471 (5th
ed. 1979).

36]. (footnote added); see also Graves v. Women's Professional Rodeo Ass'n, 907 F.2d 71, 73
(8th Cir. 1990) (stating that essential prerequisite of employer-employee relationship is that employer
compensates employee).

37BLACK’s LAW DICTIONARY at 1413.

38See supra text accompanying notes 31-32.

individual employed by a state agency who, in accordance with statutory duties bestowed
upon that agency, works with a regional poison control center is not an employee of the
center, although the individual is an employee of the state agency. A volunteer who serves
a regional poison control center is not an employee of the center because the volunteer has
no expectation of remuneration for his or her services. Likewise, an individual who is
contractually entitled to payment from a poison control center, but who is not subject to
the center’s right to control the details of the work, is an independent contractor, not an
employee of the center.

Accordingly, section 777.007 does not require the state to indemnify many of the
individuals you list. The state need not indemnify under that section individuals who serve
a regional poison control center because they are employed by a state agency that has
some responsibility with respect to the center. Thus, officers and employees of the Advi-
sory Commission on State Emergency Communications, the Texas Department of Health,
the General Services Commission, or the coordinating committee are not employees of a
regional poison control center, and section 777.007 does not require the state to indemnify
them.

Other statutes may provide these individuals with indemnity or exempt them from
liability, however. Health and Safety Code section 771.053(b), for example, may exempt
from liability members of the Advisory Commission on State Emergency Communications.
Furthermore, chapter 104 of the Civil Practice and Remedies Code requires the state to
indemnify an employee or officer of a state agency.2? Although chapter 104 does not de-
fine state agency, we believe the term includes entities created by statute, that have
statewide jurisdiction, and the members of which are appointed by state officials. Ac-
cordingly, we conclude that employees and officers of the Advisory Commission on State
Emergency Communications (to the extent they are not exempt from liability), the Texas
Department of Health, and the General Services Commission are within the indemnity
Civil Practice and Remedies Code chapter 104 provides. Of course, chapter 104 requires
the state to indemnify an employee or officer only if the damages are predicated on the
employee’s or officer’s act or omission performed in the course and scope of the employ-
ment or office.! Additionally, chapter 104 requires the state to indemnify an employee or
officer only if the damages arise out of a cause of action for negligence; the damages arise
out of a cause of action for deprivation of a federal constitutional or statutory right, privi-
lege or immunity; or the attorney general determines that the state’s best interest warrants
indemnifying the employee or officer.?

39Ciy, Prac. & Rem. Code § 104.001(1).

49See Attorney General Opinion JM-1005 (1989) at 4 (citing Attorney General Opinion H-297
(1974)) (defining “state agency”).

4\Civ. Prac. & Rem. Code § 104.002(a).

42Health & Safety Code § 777.007.

Section 777.007 of the Health and Safety Code does not require the state to in-
demnify a volunteer of a regional poison control center.44 We cannot determine whether
section 777.007 requires the state to indemnify a specialty consultant because you do not
indicate the circumstances of a specialty consultant’s service to a regional poison control
center. If the specialty consultant is an employee of a regional poison control center, he or
she is entitled to indemnity under section 777.007. If, on the other hand, the specialty
consultant is not a poison control center employee, he or she is not entitled to indemnifi-
cation under section 777.007, although the consultant may be entitled to indemnification,
under another statute, as an employee of another agency.

43Government Code chapter 2109 requires a governmental entity that provides for basic human
mental or physical needs to use volunteers, if feasible. Gov't Code § 2109.002; see also id. § 2109.001
(defining “governmental entity,” “human services”). A governmental entity’s volunteer program may,
among other things, “establish an insurance program to protect volunteers in the performance of volunteer
services.” Id. § 2109.004(b)(2). You do not ask, and we do not, therefore, determine whether a regional
poison control center is a governmental entity that provides human services, to which Government Code
chapter 2109 is applicable. We also do not consider whether the insurance program chapter 2109
authorizes a governmental entity to establish includes liability insurance.

SUMMARY

Health and Safety Code section 777.007 requires the state to in-
demnify only an employee of a regional poison control center. An
individual’s status as an employee is determined by whether the pu-
tative employer has a right to control the details of the individual’s
work. In addition, an employee is distinguished from a volunteer by
an employee’s contractual (express or implied) right to compensa-
tion.

An employee of a state agency, not a regional poison control
center, is not entitled to indemnification under Health and Safety
Code section 777.007. Thus, an officer or employee of the Advisory
Commission on State Emergency Communications, the Texas De-
partment of Health, the General Services Commission, or the
coordinating committee established by Health and Safety Code sec-
tion 777.008 who are not employees of a regional poison control
center are not entitled to indemnification under section 777.007. Of
course, other statutes may provide these individuals with indemnity
or exempt them from liability. Furthermore, section 777.007 does
not require the state to indemnify volunteers or independent contrac-
tors of a regional poison control center.

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