Can a Texas city be sued for the negligence of a public health district it belongs to?

Texas AG Opinion JM-1077: Can a City Be Sued for a Public Health District's Negligence?

Plain-English summary

The Yoakum County Criminal District Attorney asked a pointed liability question on behalf of Denver City, a home rule municipality. Denver City belongs to the South Plains Public Health District, a multi-government body made up of several counties, several cities, and a school district. If the health district or one of its employees negligently injured someone, could Denver City be sued for the damages, even though the harm came out of the district's operations rather than the city's own?

The Attorney General answered yes. The key move in the analysis is that the health district is not itself a "governmental unit" that a plaintiff can sue under the Texas Tort Claims Act. The Local Public Health Reorganization Act (V.T.C.S. article 4436b) sets up these districts by agreement among member counties and cities, but it does not authorize a district to sue or be sued, to levy taxes, or to issue bonds. Those missing powers matter. The Tort Claims Act makes "governmental units" liable and lets a unit pay large judgments in installments out of its "budgeted tax funds," which assumes the defendant is an entity that can tax. An entity with no power to tax and no power to be sued does not fit that mold. A court had made the same point about a sheriff, who has no authority to levy a tax to pay a judgment and so is not a separate "unit of government" for Tort Claims Act purposes. County of Brazoria v. Radtke, 566 S.W.2d 326 (Tex. Civ. App. - Beaumont 1978, writ ref'd n.r.e.).

The opinion drew directly on a 1969 opinion, M-538, which had analyzed community health centers created by contract among local governments. That opinion concluded a community center was "merely a component part" of a unit of government, so tortious conduct by a center's employee was the responsibility of the local governments that created it, not of the center as a standalone body. Public health districts under article 4436b are structured the same way: members provide for the district's organization and funding by cooperative agreement, appoint a director, and set up a public health board, but the district performs only the public health functions its members could already perform. It has no legal existence apart from its members.

Because the district is not a separate governmental unit and has no independent status that would insulate its members, a member city like Denver City could be held liable under the Tort Claims Act for conduct of the district's personnel or for the condition or use of the district's property, in situations that would otherwise create Tort Claims Act liability.

Currency note

This opinion was issued in 1989. 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 Local Public Health Reorganization Act (then V.T.C.S. article 4436b) has since been recodified into the Health and Safety Code, and the Tort Claims Act provisions cited here have been amended. The statute numbers and the "governmental unit" definition described here reflect the law as it stood in 1989. The legislature also amended the community-center statute in 1979 to make those centers units of government, which shows how quickly this kind of classification can change. Anyone with a present-day question about liability in a shared public health district should check the current Health and Safety Code and Civil Practice and Remedies Code and any later opinions.

Who this opinion affected (as of 1989)

Cities and counties in a public health district: The opinion told member governments they could be sued under the Tort Claims Act for torts arising out of the district's operations, because the district itself was not a suable governmental unit.

Public health districts organized under article 4436b: The opinion treated the district as a component of its members rather than a standalone governmental unit, since it could not sue, be sued, tax, or issue bonds.

People injured by health district operations: The opinion pointed such claimants toward the member cities and counties as the proper defendants under the Tort Claims Act, rather than the district as an independent entity.

Common questions

Could a Texas city be sued for a public health district's negligence?
Under this opinion, yes. A member city of a public health district organized under V.T.C.S. article 4436b could be held liable under the Tort Claims Act for conduct of the district's personnel or the condition or use of the district's property.

Why wasn't the health district itself the defendant?
Because the statute creating these districts did not authorize a district to sue or be sued, levy taxes, or issue bonds. Without those powers, the AG concluded the district was not a separate "governmental unit" under the Tort Claims Act and had no legal status apart from its members.

What did the Tort Claims Act have to do with taxing power?
The Act lets a governmental unit pay a large judgment in installments out of its "budgeted tax funds." That assumes the unit can tax. An entity with no taxing power does not fit the definition, which is part of why the district was treated as a component of its members.

Did an earlier opinion reach the same result?
Yes. Attorney General Opinion M-538 (1969) had concluded that a community health center created by contract among local governments was only a component part of a unit of government, so its employees' torts were the responsibility of the creating governments. The AG found that reasoning applied to health districts too.

Background and statutory framework

The request came from the Criminal District Attorney for Yoakum County and asked whether Denver City, a home rule municipality, could be held liable for the negligence of the South Plains Public Health District or its employees. The district is organized under V.T.C.S. article 4436b, the Local Public Health Reorganization Act. Acts 1983, 68th Leg., ch. 190, at 797, as amended. Article IV of the Act allows a public health district to be established by majority vote of the governing bodies of two or more counties, two or more municipalities, or combinations of counties and municipalities. V.T.C.S. art. 4436b, § 4.01. Denver City was one of several member governments, including counties, other cities, and a school district (section 4.05 allows school districts and other governmental entities to join).

The question was framed under the Texas Tort Claims Act, Civil Practice and Remedies Code chapter 101, which provides a limited waiver of governmental immunity for "governmental units." The opinion assumed conduct that would otherwise create liability and focused on whether a member city could be liable for it. It noted first that article 4436b gives a health district no authority to sue or be sued, and no authority to levy taxes or issue bonds. V.T.C.S. art. 4436b, §§ 1.01-5.03.

Because of those missing powers, the opinion concluded a health district is not the kind of "governmental unit" the Tort Claims Act contemplates. Section 101.021 makes a "governmental unit" liable for certain negligence and property conditions, and section 101.107 lets a unit pay Tort Claims Act judgments in installments over up to five years when the judgments exceed one percent of the "unit's budgeted tax funds." Civ. Prac. & Rem. Code § 101.107(c). That installment provision assumes an entity with taxing power. A court had reasoned the same way about a sheriff, who has "no authority to levy an ad valorem tax for the purpose of paying a judgment" and so is not a separate unit of government against which a Tort Claims Act suit should be brought. County of Brazoria v. Radtke, 566 S.W.2d 326 (Tex. Civ. App. - Beaumont 1978, writ ref'd n.r.e.).

Finding no case or opinion directly on health districts, the opinion relied on Attorney General Opinion M-538 (1969), which had analyzed community health centers created under V.T.C.S. article 5547-203 by contract among counties, cities, and hospital and school districts. Because that statute did not authorize the centers to sue or be sued or to tax or issue bonds, M-538 concluded a community center was "merely a component part of a 'unit of government'" and that the Tort Claims Act imposed no direct liability on the center itself; instead, tortious conduct by a center's employee was the responsibility of the creating local governmental units. See also Attorney General Opinions H-291 (1974); H-735 (1975). The opinion noted that in 1979 the legislature amended article 5547-203 to state specifically that community health centers were units of government under the Tort Claims Act. Acts 1979, 66th Leg., ch. 797, at 2028.

Public health districts under article 4436b are structured similarly: members provide by cooperative agreement for the district's organization and operation and for payment of costs, create a public health board, and appoint a director. V.T.C.S. art. 4436b, §§ 4.03, 4.06. A district may perform the public health functions any of its members could perform unless otherwise restricted, V.T.C.S. art. 4436b, § 4.02, and its board may adopt rules to promote public health that do not conflict with state law or member ordinances, V.T.C.S. art. 4436b, § 4.03. The opinion concluded a public health district is not a governmental unit under the Tort Claims Act and has no legal status independent of its members that would insulate them, Civ. Prac. & Rem. Code § 101.001, so a member city could be held liable for the district's tortious conduct or property conditions that would create Tort Claims Act liability.

Citations

Statutory authorities:

• V.T.C.S. art. 4436b (Local Public Health Reorganization Act); §§ 4.01, 4.02, 4.03, 4.05, 4.06 (establishment, powers, members, board, director); §§ 1.01-5.03 (no authority to sue/be sued, tax, or issue bonds)
• Civ. Prac. & Rem. Code ch. 101 (Texas Tort Claims Act); § 101.001 (definition of "governmental unit"); § 101.021 (liability of a governmental unit); § 101.107(c) (installment payment of judgments from budgeted tax funds)
• V.T.C.S. art. 5547-203 (community health centers); § 3.01(c) (1979 amendment making centers units of government)
• Acts 1983, 68th Leg., ch. 190 (Local Public Health Reorganization Act); Acts 1979, 66th Leg., ch. 797 (community-center amendment)

Cases:

• County of Brazoria v. Radtke, 566 S.W.2d 326 (Tex. Civ. App. - Beaumont 1978, writ ref'd n.r.e.) (a sheriff with no taxing power is not a separate unit of government under the Tort Claims Act)

Attorney General materials referenced:

• Relied on: M-538 (1969)
• Referenced: H-291 (1974); H-735 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1077
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1077.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The article number appears in the source as several OCR variants; the correct citation is V.T.C.S. article 4436b. The case name was confirmed by citation lookup.

July 31, 1989

Honorable Linda Shoemaker Lowrey
Criminal District Attorney
121st Judicial District
Yoakum County
P. O. Box 359
Plains, Texas 79355

Opinion No. JM-1077

Re: Liability of a municipality for acts of employees of a public health district of which the city is a member (RQ-1555)

Dear Ms. Lowrey:

You present the following question:

Can the City of Denver City, a home rule municipality, be held liable in a damage suit brought for the negligence of the South Plains Public Health District or one of its employees acting on behalf of the South Plains Public Health District?

Information provided with your request indicates that the South Plains Public Health District is organized under V.T.C.S. article 4436b, the Local Public Health Reorganization Act. Acts 1983, 68th Leg., ch. 190, at 797, as amended. Article IV of the Act provides for the establishment of public health districts. Section 4.01 provides:

(a) By a majority vote of each governing body, a public health district may be established by:

(1) two or more counties;

(2) two or more incorporated municipalities;

(3) a county and one or more incorporated municipalities situated therein; or

(4) two or more counties and one or more incorporated municipalities situated therein.

V.T.C.S. art. 4436b, § 4.01. The information accompanying your request indicates that Denver City is one of several governmental entities -- including several counties, several other cities, and a school district -- comprising the current membership of the health district.1

The discussion submitted with your request refers to various provisions of the Texas Tort Claims Act, Civil Practice and Remedies Code, chapter 101, which provides for limited waiver of the governmental immunity of "governmental units" in Texas. We do not understand you to ask, however, what sorts of conduct or conditions might fall within exceptions to governmental immunity and thus might result in liability for a responsible governmental unit. Rather we understand your question to be: assuming conduct of health district personnel, or conditions or use of property in its control, which would give rise to such liability, could a member city of the health district be held liable?

As your discussion refers exclusively to liability under the Tort Claims Act, we limit this opinion to potential liability under that act and will not speculate as to what other provisions of law might be held to create further exceptions to governmental immunity vis a vis the affairs of the health district.

We note first that the provisions in the Local Public Health Reorganization Act regarding health districts contain no authorization for a health district to sue or be sued. Also, there is no authorization for such a district to levy taxes or issue bonds. V.T.C.S. art. 4436b, §§ 1.01-5.03.

A health district therefore does not appear to be the sort of "governmental unit" contemplated by the Tort Claims Act. The latter act provides in section 101.021 of the Civil Practice and Remedies Code that "governmental units" shall be liable for certain conduct and certain conditions or uses of property.2 Section 101.107, regarding payment of judgments under the Tort Claims Act by a "governmental unit," provides that "the governmental unit may pay the judgments in equal annual installments for a period of not more than five years" if the amount of judgments in one year, excluding amounts payable by an insurer, "exceeds one percent of the unit's budgeted tax funds" for the year, excluding debt service. (Emphasis added.) Civ. Prac. & Rem. Code § 101.107(c). See also County of Brazoria v. Radtke, 566 S.W.2d 326 (Tex. Civ. App. - Beaumont 1978, writ ref'd n.r.e.) (a sheriff, having "no authority to levy an ad valorem tax for the purpose of paying a judgment" is not a separate "unit of government" against which suit should be brought and recovery be allowed under the Tort Claims Act).

We find no cases or attorney general opinions addressing the issue whether health districts are "units of government" under the Tort Claims Act, but we believe that Attorney General Opinion M-538 (1969), which considered whether community health centers established under V.T.C.S. article 5547-203 were such "units of government," is apposite. The community centers were authorized to be established by contract among counties, cities, and hospital and school districts. The organizing contract was to provide for the constituting of a board of trustees. But the governing statute did not authorize the centers to sue or be sued, or to levy taxes or issue bonds. The opinion concluded:

[I]t is our view that a community center is merely a component part of a 'unit of government' as defined in section 2 of the Texas Tort Claims Act. Such a center is simply a local agency created either by unilateral action or contract by or between designated local governmental bodies. It is our opinion that the legal effect of the Texas Tort Claims Act is not to impose direct liability upon such an agency as such, but rather that any tortious conduct attributable to an employee, officer or agent of a community center would be the responsibility and liability of the creating local governmental unit or units.

Attorney General Opinion M-538 (1969) at 3-4. See also Attorney General Opinions H-291 (1974); H-735 (1975).3

Similarly, as previously stated, public health districts created under V.T.C.S. article 4436b are not authorized to sue or be sued or to levy taxes or issue bonds. The member cities, counties, etc., of a health district are authorized to provide by cooperative agreement for the organization and operation of the health district -- including payment of costs by the members "necessary for implementation of the public health district" -- the creation of an administrative or advisory "public health board," and the appointment of a director of the district. V.T.C.S. article 4436b, §§ 4.03, 4.06. A district is authorized "to perform the public health functions that any of its members is authorized to perform unless otherwise restricted by law." V.T.C.S. art. 4436b, § 4.02. The public health board is authorized to adopt rules necessary and appropriate "to promote and preserve the health and safety of the public," but the rules may not conflict with state law or with ordinances of member cities or counties. V.T.C.S. art. 4436b, § 4.03.

We do not believe a public health district is a governmental unit under the provisions of the Tort Claims Act, or that it has a legal status independent of its members such that the latter would be insulated from liability arising from conduct of the district's personnel or the condition or use of its property under the Tort Claims Act. Civ. Prac. & Rem. Code § 101.001.

It is our opinion that a member city of a health district could be held liable for conduct of health district personnel or conditions or use of its property which would be grounds for liability under the Tort Claims Act.

SUMMARY

A member city of a public health district created under V.T.C.S. article 4436b could be held liable under the Tort Claims Act, Civil Practice and Remedies Code chapter 101, for conduct of health district personnel or for the condition or use of property under the control of the health district.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnotes

[1] Section 4.05 provides for school districts "and other governmental entities" becoming members of a public health district.

[2] "Governmental unit" is defined in section 101.001 of the Tort Claims Act as: (A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts; (B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district and river authority; and (C) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution. Section 101.021 provides for liability of a "governmental unit" as follows: A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

[3] In 1979, the legislature added a subsection 3.01(c) to V.T.C.S. article 5547-203 to provide specifically that community health centers were units of government under the Tort Claims Act. Acts 1979, 66th Leg., ch. 797, at 2028.