Appendix in support of the motion to disqualify (attachment to Dkt. 46)¶

Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · Dkt. 46-1 · 2026-04-07 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
§
Plaintiff,
§
§ Civil Action No. 5:25-cv-00244-H-BV
v.
§
§
TEXAS TECH UNIVERSITY HEALTH
§
SCIENCES CENTER, et al.,
§
Defendants.
§
APPENDIX IN SUPPORT OF
PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL
FOR DEFENDANT DARREN G. GIBSON

INDEX TO APPENDIX
Tab A
Tab B
Tab C
Tab D
Tab E
Tab F
Tab G
Tab H
Tab I

OCC No. 2025-768-0071 (Selected pages: face page, § 8.1, signature, Addendum A)..3–6
1 Tex. Admin. Code § 57.1 — Definitions, Outside Counsel Oversight...................... 8–9
Tex. Att’y Gen. Op. DM-0409 (1996) — Independent contractors excluded............11–19
Tex. Att’y Gen. Op. DM-0457 (1997) — Volunteers excluded from Ch. 104..........21–28
Tex. Att’y Gen. Op. GA-0523 (2007) — Criminal DA not covered by Ch. 104.......30–34
Tex. Att’y Gen. Op. MW-475 (1982) — Universities cannot indemnify contractors. 36–40
Tex. Ethics Op. 579 (2007) — Gov’t offices are single "law firm" for conflicts.......42–43
Student Conduct Board Findings, Dkt. 27-8 (excerpt) — "outside attorney"..................46
LBB Contracts Database Summary — Gibson, 11 agencies (2018–2027)................48–49

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:25-cv-00244-H-BV

TAB A
OUTSIDE COUNSEL CONTRACT
No. 2025-768-0071
Between Texas Tech University System
and Michael Best & Friedrich LLP
Referenced in: Sections IV.A.1, IV.A.2, IV.A.3, IV.B.1
Description:

Selected pages: Contract face page (p.1), Section
8.1 — Independent Contractor (p.10), Signature
page (p.14), Addendum A — Scope of Services
(p.15)

Source:

TPIA production, Office of the Attorney General
(Dec. 2025)

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

2

DocuSign Envelope
Docusign
Envelope ID:
ID: A41C999C-81D0-481C-B407-29A33E54635C
41D6C2EB-04EB-4045-8110-1B3EAB73A29B

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OUTSIDE COUNSEL CONTRACT
OAG Contract No. 2025-768-0071
_____________

This Agreement, including all Addenda (incorporated herein by reference), is hereinafter referred
to as the “Outside Counsel Contract,” “Contract” or “OCC.” This Outside Counsel Contract is
made
and
entered
into
by
and
between
the
Texas Tech University System
____________________________________________________________________ (“Agency”)
and Michael Best & Friedrich LLP
_________________________________________________________ (“Outside Counsel”).
The term “Parties” as used in this OCC refers to Agency and Outside Counsel and does not include
the Office of the Attorney General of Texas (“OAG”). This OCC is made and entered into with
reference to the following facts:
INDUCEMENTS
Whereas, Agency requires the assistance of outside legal counsel in carrying out its
responsibilities;
Whereas, Agency has received prior approval from the OAG to contract for outside legal services;
and
Whereas, Outside Counsel desires to provide legal services to Agency, subject to the authority of
the OAG.
AGREEMENT
Now, therefore, in consideration of the inducements, covenants, agreements, and conditions
herein contained, the Parties agree as follows:
Section 1.

Purpose/OAG Approval.

1.1
Purpose. Outside Counsel shall provide legal services to Agency, as described in
Addendum A. Outside Counsel and Agency understand and agree to the OAG’s continuing
authority and right to expand or limit the scope of legal services provided by Outside Counsel to
Agency.
1.2
OAG Approval. The Texas Attorney General’s, or his Designee’s, signature on this OCC
represents the OAG’s approval of Outside Counsel serving as legal counsel to Agency during the
term of, and for the purposes expressed in, this OCC. Consistent with Section 402.0212 of the
Texas Government Code, the OAG may withdraw, modify, or expand this approval at any time.
1.2.1 Litigation. Outside Counsel shall not represent Agency in any litigation unless
Addendum A specifically and unambiguously authorizes litigation in a particular matter. If
Addendum A does not specifically authorize Outside Counsel’s representation of Agency in a
particular litigation matter and Agency requires such representation, Agency must request and
receive OAG approval of a new Outside Counsel Contract for litigation, before filing or responding
to litigation matters. If Addendum A specifically authorizes litigation in a particular matter,
Outside Counsel has the duty to promptly notify Agency and the OAG of the desirability or
likelihood of an appeal.

3

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Section 8.

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General Terms and Conditions.

8.1
Independent Contractor. Outside Counsel agrees and acknowledges that during the OCC
Term, Outside Counsel and Outside Counsel’s subcontractors are independent contractors of
Agency or the State of Texas and are not employees of Agency or the State of Texas.
8.1.1 Responsibility for Acts and Omissions. Outside Counsel will be solely and
entirely responsible for its acts and omissions and the acts and omissions of its agents, employees,
subcontractors, and representatives in the performance of this OCC.
8.1.2 Responsibility for Employee Costs. Outside Counsel agrees and acknowledges
that during the OCC Term, Outside Counsel shall be entirely responsible for the liability and
payment for Outside Counsel or Outside Counsel’s employees or assistants, of all taxes of
whatever kind, arising out of the performance of this OCC. Other than the payments described in
this OCC, Outside Counsel agrees and acknowledges that Outside Counsel or Outside Counsel’s
employees or assistants shall not be entitled to any State benefit on account of the services provided
hereunder. Agency shall not be liable to Outside Counsel, its employees, agents, or others for the
payment of taxes or the provision of unemployment insurance and/or workers’ compensation, or
any benefit due to a state employee. If Agency or the State of Texas shall nonetheless become
liable for such payments or obligations, Outside Counsel shall promptly pay or reimburse Agency
or the State of Texas for such liability or obligation.
8.2
Assignment of OCC. Outside Counsel may not assign this OCC, or assign any right or
delegate any duty under this OCC, and any attempted assignment in violation of this provision is
void and without effect.
8.3
Survival. The obligations of Outside Counsel under the following Sections and
Subsections shall survive the termination or expiration of this OCC: 3.3, 4, 5, 6.5, 7.1, 7.3, 7.4,
8.3, 8.7, 8.11, 8.13, and Addendum C, Section 8.
8.4
Copyright/Intellectual Property. Outside Counsel shall take reasonable measures to
protect Agency from material risks of Agency liability known to, or reasonably anticipated by,
Outside Counsel for any copyright or patent infringement or disclosure of trade secrets resulting
from the use of any equipment, materials, information, or ideas furnished by Outside Counsel
pursuant to this OCC (other than equipment, materials, information, or ideas supplied or required
by Agency or its employees or other agents). Outside Counsel and Agency agree to furnish timely
written notice to each other, and to the OAG, of any claim of copyright, patent, trade secret, or
other intellectual property infringement arising out of services under this OCC.
8.5
Media Releases or Pronouncements. Outside Counsel understands that the OAG and
Agency do not endorse any vendor, commodity, or service. Outside Counsel, its employees,
representatives, agents, or subcontractors may not participate in any media event or news
interview, or issue any media release, advertisement, social media post, publication, editorial,
article, or public pronouncement that pertains to this OCC or the services or project to which this
OCC relates, or that mentions the OAG or Agency, without the prior written approval of the OAG
and Agency.
Outside Counsel Contract
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IN WITNESS THEREOF, THE PARTIES HAVE SIGNED AND EXECUTED THIS OCC.
Michael Best & Friedrich LLP

Texas Tech University System

_______________________________

_______________________________

Darren G. Gibson

Eric Bentley
Vice Chancellor and General Counsel

Partner
515 Congress Avenue, Suite 2500
Austin, Texas 78701

Office of General Counsel
P.O. Box 42021
Lubbock, TX 79409

Tax ID# 39-0934985
Approved:
By the Office of the Attorney General of Texas

___________________________________
Texas Attorney General or Designee

Outside Counsel Contract
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OUTSIDE COUNSEL CONTRACT
OAG Contract No. 2025-768-0071
_____________

Addendum A
Scope of Services
OUTSIDE COUNSEL WILL ASSIST TEXAS TECH UNIVERSITY SYSTEM WITH POLICY AND PROCEDURAL
MATTERS RELATED TO SEXUAL MISCONDUCT, AND ITS IMPACT ON THE TTU SYSTEM AND ITS
COMPONENT INSTITUTIONS AND PROGRAMS, INCLUDING PROVIDING ADVICE REGARDING TITLE IX
LAW AND REGULATIONS AND POTENTIALLY SERVING AS A HEARING OFFICER IN LIVE HEARINGS
REQUIRED BY TITLE IX AND/OR THE UNIVERSITY.
OUTSIDE COUNSEL WILL PROVIDE LEGAL ADVICE AND CONSULTATION REGARDING EMPLOYMENT
LAW, EMPLOYEE BENEFITS, AND HIGHER EDUCATION MATTERS ON AN AS-NEEDED BASIS, INCLUDING
WITH RESPECT TO CONDUCTING INTERNAL INVESTIGATIONS OF SEXUAL HARASSMENT,
DISCRIMINATION, AND SIMILAR MATTERS WHERE A CONFLICT OF INTEREST OR VOLUME EXISTS;
PROVIDING LEGAL ADVICE AND COUNSEL ON EMPLOYMENT LAW AND HIGHER EDUCATION ISSUES,
INCLUDING NIL AND REVENUE SHARING FOR STUDENT ATHLETES; CONDUCTING EMPLOYMENT LAW
AND HIGHER EDUCATION TRAININGS; PERFORMING EMPLOYMENT LAW AND HIGHER EDUCATION
AUDITS/REVIEWS AND OVERSEEING IMPLEMENTATION OF LEGAL RECOMMENDATIONS; AND SERVING
AS A HEARING OFFICER FOR EMPLOYMENT AND ACADEMIC GRIEVANCE HEARINGS TO COVER THE
TITLE IX, NON-TITLE IX DISCRIMINATION, ADA/504, AND OTHER HEARING OFFICER WORK.

Outside Counsel Contract
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:25-cv-00244-H-BV

TAB B
1 TEXAS ADMINISTRATIVE CODE § 57.1
Definitions — Outside Counsel Oversight
Referenced in: Section IV.A.2
Description:

Office of the Attorney General rule defining
“outside counsel” as attorneys retained under
contract who are not full-time state employees.

Source:

Texas Secretary of State

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

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TEXAS ADMINISTRATIVE CODE
Title 1. Administration
Part 3. Office of the Attorney General
Chapter 57. Approval of Payment for Legal Services
of Outside Counsel

§ 57.1. Definitions
Source: Adopted effective March 27, 2012, 37 TexReg 2065

The following words and terms, when used in this chapter, shall have the following meanings,
unless the context clearly indicates otherwise.
(1) Agency — A department, commission, board, authority, office, or other agency in
the executive branch of state government, including university systems and institutions
of higher education as defined by § 61.003 of the Education Code, but excluding public
junior colleges.
(2) Chief Administrator — Has the meaning defined by § 660.002(4) of the
Government Code.
(3) Contingency Fee — Has the meaning defined by § 2254.101(1) of the Government
Code.
(4) Invoice — An itemized list of legal services provided, and fees, charges, or
expenses associated with those services, by Outside Counsel to an Agency pursuant to
an Outside Counsel Contract.
(5) Invoice Summary — A document furnished by Outside Counsel in support of each
Invoice showing total hours worked by each legal professional or, for each task or
project, showing: a description of work performed; subtotals for legal fees and
expenses; and cumulative Invoice totals under the Outside Counsel Contract.
(6) Outside Counsel — An attorney or law firm selected by an Agency to provide
legal services. The term does not include a full-time employee of the Agency or the
Office of the Attorney General.
(7) Outside Counsel Contract — A contract for legal services between an Agency
and Outside Counsel selected by the Agency that must be approved by the Office of the
Attorney General pursuant to this chapter.
(8) Request for Voucher Approval — A request from an Agency to the Office of the
Attorney General to review and approve an Outside Counsel Invoice for payment.

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(9) Request to Retain Outside Counsel — A request from an Agency to the Office of
the Attorney General for approval to retain Outside Counsel for the provision of legal
services.
(10) State Fiscal Biennium — A period of time running concurrent with that set by
the General Appropriations Act.

Source: The provisions of this § 57.1 adopted to be effective March 27, 2012, 37 TexReg 2065.

Retrieved from Cornell Law Institute, Legal Information Institute:
https://www.law.cornell.edu/regulations/texas/1-Tex-Admin-Code-SS-57-1

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:25-cv-00244-H-BV

TAB C
TEXAS ATTORNEY GENERAL
OPINION DM-0409
August 20, 1996
Referenced in: Section IV.A.3
Description:

Independent contractors are excluded from state
indemnification under Health & Safety Code §
777.004 and the Tort Claims Act because they are
not state “employees.” The AG concluded that the
legislature’s enumeration of covered persons is
exclusive.

Source:

Office of the Attorney General of Texas

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

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Office of the Bttornep @enera
&date of PCexae
DAN MORALES
ATTORNEY
GENERAL

August 20,1996

Mr. James D. Goerke
Executive Director
Advisoly 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 quires
the state to indemnify an individual who is not an
employee of a regionsl poison control center and related questions (RQ-874)

Dear Ms. Boyd:
Section 777.007 of the Health and Safety Code requires the state to indemnity sn
employee of a regional poison control center under Civil Bractice and Remedies Code
chapter 104. We understand you to ask primarily whether section 777.007 requires the
state to indemnity an individual who is not an employee of a regional poison control center. 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 indw
a volunteer
and an independent contractor, nor does it require the state to indemnity an employee of a
state agency whose job involves performing some work for a poison control center. Another statute, however, may indemnify an employee of a state agency acting within the
scope of his or her 05&l duties.
We believe it wig be help&l to begin by discus@ Health and Safety Code chapter
777, which designates six health-care thcilities as regional poison control centerst Bach
poison control center must provide a twenty-four hour, toll&e-e telephone refd
service
that provides to the public and health-care professionals information on ingested poisons
and exposure to poisonss Moreover, a poison control center must attempt to educate the
public about poison prevention and health-care professionals about the treatment of poi-

zId. 0 777.@02(a). Indeed, each @mal

poison amtml center must meet the crita’ia of the

Anurican Associationof Poison ControlCenters,and that asocibn rfxpk a regional poison control
wntcr to provideinformationto heallhcarc professionalsand the public 24 hours each day, 365 days pa
year. See American Ass% of Poiin control Centers,Cxitaia for btifscation as a Regional Poison
cmter pt. II.A (Jan. 19%).
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son and overdose victims, provide toxocologid assistance to state agencies, and be available 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.J
Section 777.007, about which you specifically ask, requires the state to indemnity
“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 organixations that are involved with a poison control center: the Advisory
Commission on State Emergency Communications and its personnel; the Texas Department of Health and its personnel; personnel of the General Services Commission; the
members of the coordinatmg committee on poison control; health-care professionals who
vohmteer 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.7 As we understand your question, you
wish to know which, if any, of these persons section 777.007 requires the state to indemnity, to the extent they serve a poison control center.
Aside from volunteer health-care professionals and specialty consultants, the entities 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 members sit on the advisory commission because of another public 05ce they hold.* With
NINTTI
NEW
~oxieology is a science that deals with poisons and their effects. WEBSTER’S
COUMIA~DIC~ONARY
1248 (1990).
‘Health

& safely code 5 777.003.

51d. p 777.004(a). To be certified by the American Association of Poison ControlCentersas a
mgiooal poison center,a eentcrmust have at least one specialistia poison ioformationin the ccoterat all
timea, softicientadditionalstaff promptlyto handle the center’sincoming calls, sod the medical dhector
or qoalified desigaee available,at least oncall by telephoae, at all times. Criteriafor Cutitication as a
RegionalPoison Centersupro pt. EA.
%a-awe yoo do not ask abouta poison controlcenter’scorporateliiility, we mnsider only the
indemnityto which an employeeis entitled.

‘To be ecrtiftedby the AmericanAssociationof P&on Ccntrcl Centcn, a regional potson ccn-

tml emotermust maintaina list of sqecialtyeoosoltantswho are availableon ao on-call basis. Criteriafor
Chiitieation as a Regional Poison Centersupro, pt. ll.C.4. A specialtywnsoltant most be qoaliied to
pvidc sophisticatedtoxicologyor patient-careinformationin tbe consultant’sama of expertise. Id. pt.
ll.E.5. A specialtymnsoltaot should be availableon-call, as needed. Id. Finally, the amas of expertise
rdeued by the eat&s list of eonsoltantsshould mirrorthe @pmof poisonings ewnmtemd io the mpion. Id.

Qealth & Safetycode $771.031(a).
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reference to the poison control center network, the advisory commission is to administer
the centers’ telecommunications requirements. 9 The advisory commission funds poison
control center services by collecting a surcharge on local exchange and intrastate longdistance telephone charges.r”
The Texas Department of Health is established generally to protect and promote
public health.11 The department is governed by a six-member board, each member of
which is appointed by the governor.12 With respect to the regional poison control centers,
the Department of Health shares r&-making authority with the Advisory Commission on
State Emergency Communications;~3
it also shares with the advisory wmmission responsibiity to award grants to fund the regional poison control centers.t4
The General Services Commission, whose six members are gubernatorial appointments,rr is generally responsible for procuring all of a state agency’s goods and service~.~~
Sign&ant to your question, the General Services Commission must manage the operation
of a telecommunications system for all state agencies.*7 The General Services Commission also must, to the extent possible, satisfy each state agency’s telecommunications
needs.t* For purposes of the State Purchasing and General Services Act,lg 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 admittisters the poison control centers’ telecommunications needs, qualiies as a state agency
under the State Purchasing and General Services Act.
gId. p 771.051(a)(l).
‘Old. 08 771.071(a), .072(a), (d), (e), ,075.
“Id. 8 11.002.
121d. § 11.005(a). ‘lb board employs a ammissionu to admUter the dcpartmcnf but tbc
cOrnmiSSiOneris always subject to the bed’s mpervision Id. $8 11.012(a), .013(a), @I.
‘)Id. 0 777.001(b).
“1d. 5 777.009.
‘%ov’t

9d.

Chic $2152.051.

8 2155.061(a).

“Id. 0 2170.051(a).
‘*Id. 8 2170.051(b).

%ov’t Codetit. 10, s&tit. D; see id. 8 2151.001.
3”Id. 8 2151.002(2)(A)~

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The coordinating committee on poison control, the last entity you specitically
mention, advises the Texas Board of Health and the Advisory Commission on State
Emergency Communications.sl 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 Department of Health.
To resolve whether these entities, as well aa volunteers and specialty wnsultants,
are entitled to indemnity under Health and Safety Code section 777.007, we must interpret
the section. On its face, section 777.007 rewires 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,n chapter 104 of the Civil Practice and Remedies Code also did not detine the term.u We must, therefore, define the term in context and wnsistent with
wmmon usage.14 In Attorney General Opinion lM-525 this o5ce de&ted 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.25 Because chapter 104 generally
renders the state liable for damages caused by an employee’s conduct, the opinion exam-

21Hcalth& SafetyCcdc p 777.008(a).
%ee Act of May 27, 1993, 73d Leg., RS., ch 670, sec. 1, § 777.007, 1993 Tex. Gen Laws
2495.2497.
“Prior to 1995, Civil Practiceand RemediesCode chapter 104 indemnified,among others, an
employeeor &cer of a stateagency. See Civ. Rx. & Rem. Code 5 104.001(l), amended by Act of May
9, 1995,74th Leg., RS., ch. 139.8 2, 1995 Tex. Sees. Law Serv. 982,982. The Seventy-fomtbLegislaturnamended s&on 104.001 to indemn@ the same people but regard1es.s of whether t%?y pe#md
their servtces for compensation. See Act of May 9, 1995, 74th Leg., R.S., ch. 139, 5 2, 1995 Tex. SesF.
Law Serv. 982,982. To the extent that the 1995 amembentdefinestheterm”employee”toinc1edea
vohmccr, we eaonot importthe deJinitioninto Healthend SafetyCode section 777.007; we may importa
statutoryddlnition only into a Iater-enaUedstatute. See &v&Me v. HoustonIndep. Sch. Dist., 508
S.W.2d 675.677-78 (Tea. Civ. App.-Houston 114thDist.] 1974, no tit) (citing Brown v. Lkden, 50
S.W.2d 261 (Tex. 1932)). Becausethe “detinition”cannot be imported,for puqnxs of this opinion we
diseomCivil Fvacticcand RemediesCodechapter 104 as though the 1995 amendmentto section 104.001
had not oaxmd. Of cootse, if an individualperformingservicesfor a regionalpoison controlcenteris
doiog KIas a volunteerfor a state agency to which Civil Pm&es and RemediesCode chapter 104 applies, the individualis indannified m~derchapter104.
24SeeAttorneyGeneralOpinionJh4-525(1986) at 4 (citing Gw’t Code8 311.011).
25~

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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 individual’s status as an employee depends upon whether the employer has the right to control
the details of the wok2’ Whether the employer actually exercises the right is inwnsequentiaL2*
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 detlnition articulate-d by Attorney General Opinion
Jh4-525 is designed to distinguish an employee from an independent contractor, however;
it does not necessarily distinguish an employee from a volunteer. Nevertheless, a federal
wurt in Maryland has noted that the nature of a volunteer’s service is such that an
%mployer” 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.30
Furthermore, we believe an express or implied contract for compensation is an
additional characteristic of the employee-employer relationship that distinguishes an employee from a volunteer. Section 101.001 of the Civil Practice and Remedies Code
d&es ‘kmployee” for purposes of the Texas Tort Claims Act31 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.33 Because the pur“Id.
nId. (citing Newqxzpers Inc. v. Low, 380 S.W.Zd582,591 (-k.x. 1964)).
IsId. (citing Great Western Killing Co. v. Simmms,302 S.W.2d 400,403 (Tex 1957)).
%ee

Haavistola v. Cmnmunity Fin Co., 812 F. Supp. 1379, 1386 (D.C. Md.), mv’d on other

gram& 6 F.3d 211 (4th Cu. 1993).
%ee id.
31Cii.

Fmc. &Rcm. Cde ch. 101;see id. 8 101.002.

32h An0rneyGeneralO@iOODM-346this Offia SIatCd
that mOMiSSiOtlcrs of the Taras wokcm’ Compensation Commission am io the paid ervia of a govmlmentalcnutyandtbemfore
“employees”for pmpom of Civil Practia and RemediesCcdc chapter101 becausethey am ktitkd to
rcimburscmcntfor actual nectasaryexpcmesmdactuallc4twagesductoatkndaxeatmmmission
matings.” AttorneyGeneralOpinion DM-346 (1995) at 1 n.1. Although a vohmteerfor a regional pi-

sonwn~lcentermayrcaivenimburscmcntforhisorhncxpenses,wcfiodmstatutccntitlinga
volunteertc reimbursement.CJ Gov’tCode 5 2109.004(b)(l) (authorizinggwcmmm talemilytbatpmvidcs human servicesto reimbursevolunteersfor actualand necesaty expenses). In addition,a volunteer
is not compensatedin any wayfor lost wagesdueto the voluntar work.
“‘See Harris Cmmry v. Dihrd,

883 S.W.Zd166, 167 (lb.

1994),
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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”
wnsistently in both statutes, especially since the legislature has not provided to the wntrary.
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.” While the court
based its conclusion on the detlnition of the term “employee” in the Workers’ Compensation Act, we believe the court’s definition comports with the wmmon understanding of
the term. For example, BLrck ‘r Low LXwonmy defines employee generally as “a person
in the service of another under [a] contract of hire”
. a person working for salary or
wages.“% A volunteer, by contrast, is an individual who serves with no promise of remuneration.f7
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 wntrol the employee, but also by whether the putative employer has wntracted, explicitly or implicitly, to compensate the employee for the employee’s services. We note
that Civil Practices and Remedies Code section 102.001( 1) explicitly detines “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 genera) rule.
Moreover, we believe the detinition of employee in the Texas Tort Claims Actss 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 section 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
34See Texas Employers Ins. Au’n v. BurrelI, 564 S.W.2d 133, 134 (Tcx. Civ. App.-Beamnont
1978, writ refd nr.e.) (citing Nobles v. Texas bdem. Ins. Co., 24 S.W.Zd367.369 (Xx. Comm’u&.

1930,judgm’tadopted)and othercases).
35Black’s cites, for tbis dehitiou of “employa,” Rtverbend Country Club v. Patterson, 399
S.W.Zd382,383 (Tex. Civ. App.-E&and 1965, tit r&d n.r.e.). BUCK’SLAW
DICTIONARY
471 (5th
cd. 1979).

NId. (fwtnok add@; see also Graves v. Women’s professional Rodeo Au’n, 907 F.2d 71.73
(8th Cu. 1990) (stating that essential prerequisiteof employer+mployeerelationshipis that employer
mmPcu.m= anployec).
“BLACK’S LAW DICTIONARY
at 1413.

3*&e supra text accompanyingnotes 31-32.
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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
wntractually 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 indemnity 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, 05cers and employees of the Advisory 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 liabii members of the Advisory Commission on State Emergency Communications.
Furthermore, chapter 104 of the Civil Practice and Remedies Code requires the state to
indemnity an employee or officer of a state agency.39 Although chapter 104 does not defme state agency, we believe the term includes entities created by statute, that have
state-wide jurisdiction, and the members of which are appointed by state 05cials.~ Acwrdingly, we conclude that employees and officers of the Advisory Commission on State
Emergency Communications (to the extent they are not exempt from liabiity), 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 employment or ~ffice.~r Additionally, chapter 104 requires the state to indemnify an employee or
officer only ifthe damages arise out of a cause of action for negligence; the damages arise
out of a cause of action for deprivation of a federal wnstitutional or statutory right, pritilege or immunity; or the attorney general determines that the state’s best interest warrants
indemnifying the employee or o5cer.”
‘viv. Rat. &Run. c!dc 8 104.001(1).
%ee AttorneyGateral Opinion JM-1005(1989) at 4 (citing Attotmy’ Gzncd Opinion H-297
(1974)) (defining “stateagency”).
41Cii.

Pmt. &Rem. Cadc 8 104.002(a).

42Health

& say

CcJde8 777.007.
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Section 777.007 of the Health and Safety Code does not require the state to indemnify a volunteer of a regional poison control center:3 We camtot determine whether
section 777.007 requires the state to indemnify a specialty consultant because you do not
indicate the circumstances of a specialty wnsultant’s service to a regional poison control
center. If the specialty wnsultant 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
wnsultant is not a poison control center employee, he or she is not entitled to indemnitication under section 777.007, although the consultant may be entitled to indemniftcation,
under another statute, as an employee of another agency.

“Govcmmat Code chapter2109 tquires a gwcnuncntal entity that providesfor basic human
mental or physical ueeds to um volt,
if feasible. Gov’t Code 0 2109.002; se also id. 0 2109.001
@dining ‘gowmmed entity,” “humau services”). A govmuacatal entity’s vohnltar pmgram may,
amougotherthiugs,%tubliiauinsumuce programtoprotectvol~teersintheperformance ofvuluntccr
mrvias.” Id. p 2109.004@~2). You do uot ask, uud we do uot, therefore,determinewhethera regioual
poison controlcenteris a goverummtal entity that provide6human services,to which Gwemmcut Code
zcrFg
is applicable. We also do not consider whether the insuraua programchapter 2109
overmueutalentityto establishincludesliabilityinsurance.
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SUMMARY
Health and Safety Code section 777.007 requires the state to indemnity only an employee of a regional poison control center. An
individual’s status as an employee is determined by whether the putative 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 wntractual (express or implied) right to wmpensation.
An employee of a state agency, not a regional poison control
center, is not entitkd to indemnikation under Health and Safety
Code section 777.007. Thus, an 05cer or employee of the Advisory
Commission on State Emergency Communications, the Texas Department of Health, the General Services Commission, or the
wordiiting
wmmittee established by Health and Safety Code saction 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 6om liability. Furthermore., section 777.007 does
not require the state to indemnify vohmteers or independent wntractars of a regional poison control center.

DAN MORALES
Attorney General of Texas
JORGE VEGA
Fht Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:25-cv-00244-H-BV

TAB D
TEXAS ATTORNEY GENERAL
OPINION DM-0457
November 26, 1997
Referenced in: Section IV.A.3
Description:

Volunteers are excluded from Chapter 104
indemnification and defense because § 104.001
enumerates specific categories of persons entitled
to representation, and “volunteers” are not listed.
Applies expressio unius est exclusio alterius.

Source:

Office of the Attorney General of Texas

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

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Qtate

DAN MORALES
ATTORNEY
CENERAL

PageID 1453

QBeneraI

of ZEexae

November 26,199l

Mr. William Treaty
Executive Director
Texas State Board of Public Accountancy
333 Guadalupe, Tower III, Suite 900
Austin, Texas 78701-3900
Mr. Wayne Scott
Executive Director
Texas Department of Criminal Justice
P.O. Box 99
Huntsville, Texas 77342-0099

Page 21 of 49

Opinion No. DM-457
Re: Whether state indemnification and defense
in certain legal actions pursuant to chapter 104
of the Civil Practice and Remedies Code is
available to a volunteer performing services for
a state agency (RQ-905)

Dear Gentlemen:
Civil Practice and Remedies Code section 104.001 requires the state to indemnify those
individuals listed in that section for damages, court costs, and attorney fees if the damages are
premised on an act or omission that occurred during the individual’s service to the state. Section
104.004 requires the state to defend those same individuals. Section 104.001 does not list
volunteers. You both ask whether the state must indemnify and defend a volunteer’ who provides
services for your agency if a civil action is brought against him or her for an action performed in the
course and scope of the voluntary services? The Department of criminal Justice inquires generally
about volunteers who provide services for it,3 while the Board of Public Accountancy asks about its
constructive enforcement volunteers, who assist the board with investigations. Because vohmteers
are not among those individuals listed in section 104.001, we conclude that they are not entitled to
indemnification from and legal representation by the state.

‘SeeGov’tCode5 2109.004(a)(listingreqtdmments
to which stateagenciesthatwish to establisha volunteer
progl-anlmustadhere).
‘AttorneyGeneralOpinionDM-173 (1992) concludesthatsection 101.063 of the HumanResourcesCode
accorded inummity from liability to volunteerombudsmen in the Texas Depqent of Aging long-term care
ombudsmanprogramfor the good-faithperformanceof theirfi~~c.tions
as volunteers,and AttorneyGeneralOpinion
DM-206 (1993) concludesthatthis statutealso appliedto internsin the volunteerombudsmanprognun ‘Il~esetwo
opinionsaddressa specificpmvisii of the HumanResourcesCodeadoptedto complywith a federalrequirement,and
they do not addresstbe questionof immunityfor volunteersin general.
‘See Gov’tCode.5 501.009 (requiringDepartmentof CriminalJusticeto encouragevolunteerorganizations
to providevariousprogramsfor inmates).
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The executive diitor
of the State Board of Public Accountsncy also asks whether a
constructive enforcement vohmteer may claim an absolute or quahtied privilege if the volunteer is
sued for defamation for his or her official work. We conclude that, in appropriate circumstances,
the volunteer may claim one or the other.
We will consider first your questions about the extent of Civil Practice and Remedies Code
chapter 104. Section 104.001 of that chapter requires the state to indemnify certain individuals for
damages, court costs, and attorney fees:
In a cause of action based on conduct described in Section 104.002, the
state shall indemnify the following persons, without regard to whether the
persons perfoned their services for compensation, for actual damages, court
costs, and attorney’s fees adjudged against:
(1) an employee, a member of the goveming board, or any other
officer of a state agency, institution, or department;
(2) a former employee, former member of the governing board, or any
other former officer of a state agency, institution, or department who was an
employee or officer when the act or omission, . . occurred,
(3) a physician or psychiatrist . . . who was performing services under
a contract with any state agency, institution, or department or a racing official
performing services under a contract with the Texas Pacing Commission
when the act or omission. . . occurred;
(4) a person serving on the governing board of a foundation,

corporation, or association at the request and on behalf of an institution of
higher education, . . . , not including a public junior college;
(5) a state contractor who signed a waste manifest as required by a
state contract; or
(6) the estate of a person listed in this section. [Emphasis added.]
Section 104.002 limits indemnification to damages based on sn action or omission committed in the
course of the individual’s service to the state, with certain qualifications irrelevant here4 Any public

‘An appropriationto pay a claim underCivil Practiceand RemediesCode chapter 104 is to be made hm
otherwiseunappropriated
amountsin a specialfundor an accountthatmaybe appropriated
to the aff&ed stateagency,
totheextentIhat
tends
areavailable.
Id.$5109.002(b),003, ,007 (exceptingcertainclaimshm chapter109). If funds
areunavailable,the appropriation
may be made fromthe generalrevenuefund. Id.$109.003.
Thecomptrollerwill
(continued...)
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s-t
who is entitled to indemnification under sections 104.001 and 104.002 similarly is entitled
to be defended by the attorney general?
To conclude that a volunteer is entitled to indemnification under section 104.001, we must
interpret the section in one of two ways: either the list of positions numbered (1) through (6) is
exemplary and not exclusive, or one of the listed positions includes volunteers. Because you ask
about vohmteers whose service fits under none of the listed categories except perhaps employee, we
will consider only whether the term “employee” in section 104.001( 1) enwmpasses volunteers6 We
believe the section’s plain language precludes either conclusion. Because we find the language clear,
we need not rely on legislative history to determine what the legislature intended the section to
mean.’
We first conclude that section 104.001 provides indemnification to only those individuals
explicitly listed. A statute that creates an entitlement and designates the individuals who may claim
the entitlement should be wnstrued restrictively to infer that any individual not expressly described
is excluded* unless the statute clearly states the wntrary.9 Section 104.001 contains no language
clearly stating the contrary, nor does it imply that the class of positions entitled to indemnification
is broader than those positions specifically listed. The section does not, for example, require the
state to indemnity those public servants including those listed. Similarly, the section does not
suggest that the listed positions are described as an example. Nor does the list establish a seventh,
open-ended category indemnifying, for example, any otherpublic servant.
Second, we do not believe the term %mployee” includes volunteers, even though the section
refers to individuals who are not compensated for their service to the state. This office refused in

‘(...wtltiilued)
reducethe appmpdion forthe stateagencyin s.nsmountnot to exwed $S,ooOperclaii or five percentof the agency’s
appmpriationfor thatf=cal yearfor all claims. Id 5 109.004.
'Id.
5 104.004(a).
6Wedo not considerin this opinionwhethers stateemployeeis entitledto indemnificationand representstion
for an act 01 omission committedin the courseof volunteerwork.
‘SeeBoykinv. St&e,818 S.W.Zd782,785-86 a.4 (Tex. Grim.App. 1991)(explainingthat,despiteGovemmnt
Code’sinvitationto extie
legislativehistoryregardlessof statute’sclarity,courtgenerallyshoulddecline to do so
wherelanguageof statutein questionis unambiguous);Lumbermen's
Undenwiterr
v.State
Bd ofIns., 502S.W.Zd217,
219 (Tex. Civ. App.--Austin1973, writ refd n&e.) (citing 53 TEX.JUR.2~ Statutes$ 125, at 182 11.17)(statingthat,
when leg&law plainlyhas expressedits intentin statute’slanguage,intentmustbe effectuatedwithoutattemptingto
conshue or interpretlaw).
'See
Bidelspach
v.State,
840S.W.2d516,518 (Tex. App.-Dallas 1992). writdism'd,
850S.W.Zd183 (Tex.
Grim.App. 1993) @a cwiam); ~ANORMAN
J. SINGER,
STATUTES
ANDSTATUTORY
CONSTRUCTION
5 47.23 (5th ed.
1992).
?k 2A SINGER,
supra note 8, g 41.23.
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Attorney General Opinion DM-409 to construe Health and Safety Code section 777.007, which
requires the state to indemnify under Civil Practice and Remedies Code chapter 104 %n employee”
of a regional poison control center, to require the state to indemnity a regional-poison-control-center
vohmteer.“’ In that opinion, we distinguished an employee from a vohmteer on two bases: employer
control and an express or implied contract for compensation.” An employer has control over an
employee, but little over a volunteer. I2 In addition, an employee has an express or implied wntract
for wmpensation with the employer, while a volunteer has no such contraw” We believe the same
rationale applies here.
Our wnstruction of section 104.001 does not render the phrase “without regard to whether
the persons performed their services for compensation” meaningless, although our conclusion
necessitates a finding that an employee cannot be uncompensated. In our opinion, the phrase refers,
at the least, to board members, officers, and former board members whom the state must indemnify.
We understand from one of the briefs we received on this issue that individuals serving as board
members and officers generally are not compensated for their services, and evidently this fact caused
confusion as to whether an individual must be compensated to be entitled to indemnification and
defense. The smendment thus rectifies this incongruity and “clearly indicates that board members
and former board members sre entitled to indemnification, . . . whether or not they perform their
services for monetary wmpensation.“r4
Finally, with respect to your joint question, because a volunteer is not entitled to
indemnification from the state under section 104.001, a volunteer is likewise not entitled to the
attorney general’s defense under section 104.004.
We turn now to the additional questions posed by the executive director of the State Board
of Public Accountancy regarding the board’s constructive enforcement vohmteers. Under the
board’s direction, wnstructive enforcement volunteers are asked to do various investigative tasks
including:
(1) on-site investigations;

“‘Attorney
GeneralOpinionDM-409(1996) at 6-7.
“Seeid.
at 4-6.
‘*Seeid at 5 (citiag Haavzktola
v.Community
FireCo.,
812F. Supp. 1379, 1386(D.C. Md.), rev’don
other
ground.~,6 F.3d 211 (4th Ci. 1993)).
“Id.
at 5-6.
“Letterfrom DelmarCaii GeneralCounsel,The Texas A&h4UniversitySystem,to SarakShirley,Chair,
AttorneyGerteralOpinionCommittee(Oct. 23, 1996) (on tile with the OpinionCommittee,Of&x of the Attorney
General).
p. 2559

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(a) taking photographs,
(b) obtaining statements;
(c) gathering evidence such as letterhead or business cards;
(2) locating witnesses;
(3) making telephone calls to verify compliance with the Act, the
Rules and Board Orders;
(4) testifying at administrative hearings;
(5) reviewing contimting professional education sponsors’ courses;
and
(6) carrying out other investigative tasks, as needed.
The executive director inquires whether sn absolute privilege against a suit for defamation
would apply to its constructive enforcement volunteers. Chapter 73 of the Civil Practice and
Remedies Code defines defamation as follows:
A libel is a defamation expressed in written or other graphic form that
tends to blacken the memory of the de& or that tends to injure a living
person’s reputation and thereby expose the person to public hatred,
contempt or ridicule, or fmsncial injury or to impeach any person’s
honesty, integrity, virtue, or reputation or to publish the natural defects
of anyone and thereby expose the person to public hatred, ridicule, or
financial injury. [Footnote added.]
There is an absolute privilege for communications in the due course of a judicial proceeding
made by the judge, jurors, counsel, parties, or witnesses.t6 Such communications will not serve as
the basis of a civil action for libel or slander, regardless of the negligence or malice with which they
are made.” The privilege attaches to all aspects of the proceedings, including statements made in
open court, pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the

‘sRecoverymay be had for defamationof the dead only uponproof of irju$ to the reputationof the person
by or for whom the actionis brought. Renfio
DrugCo.v.Lawson,
160S.W.Zd246,250 (Tex. 1942).
‘4/ames
v.Brown,
631S.W.Zd914,916-17 (Tex.
1982);
Reaganv.Guardian
Life
Ins.
Co.,166 S.W.Zd909,
912 (Tex. 1942).
“Jamq 631S.W.Zdat 916-17; Reagan,
166 S.W.Zdat 912.
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case.” The privilege barring defamation suits applies to proceedings before executive officers and
boards and commissions that exercise quasi-judicial powersJ9
Also subject to the absolute privilege are out-of-court communications made by attorneys
preliminary to a judicial pmceeding or in connection therewith, if the statements relate to a judicial
proceeding in which the attorney is employed and are in lktherance of the representation?o In a suit
for damages instituted by a woman who was involuntarily hospitalized upon the application of her
son and daughter, the Texas Supreme Court held that reports by three psychiatrists to the probate
judge in the mental health proceedings were absolutely privileged?’ A letter by one of the
psychiatrists to the attorney for the plaintiffs children was also within the privilege because it was
written in contemplation of a judicial proceeding.‘2
Accordingly, we believe that the constructive enforcement volunteers would have an absolute
privilege against a civil action for libel or slander for statements made as witnesses in a quasijudicial proceeding before the State Board of Public Accountancy and for communications
preliminary to a proposed proceeding in which the volunteer will testify, if the communication has
some relation to the hearing.” Whether a preliminary communication is related to the proceeding
is a question of law, to be determined by considering the entire communication in its context.”

‘sJames,
637S.W.2dat 916-17.
‘9Reagan,
166 S.W.Zdat 912 (Boardof InsuranceCommissioners);
Putter v. Anderson,
601 S.W.Zd73.76
(Tex. Civ. App.-Dallas 1980, writnf d n.r.e.)(internalaffairsdivisionof city police deparhnentwheninvestigating
citizen’scomplaintabout
policeofficer);see also Odenealv. Woffoni,
668 S.W.Zd819,820 (Tex. App.-Dallas 1984,
wit ref d n.r.e.)(St&zBarGrievanceCommittee).
~Rtmell
v. Clark,620 S.W.M865,869 (Tex. Civ. App.-Dallas 1981,wit refd me.); see also Odeneal,
668
S.W.2dat 820 (privilegeappliesto letterwrittenby attorneywho is subjectto grievanceproceeding).The questionof

the relationshipof the defamatorymatterto a judicialproceedingis a questionof law,to be determkd by the COIUI
by
consideringthe entireemmum‘cationin itscontextandextendingtheprivilegeto any statementthatbearssomerelation
to a judicial pmceediag. Russell,
620S.W.Zdat 870.
“James,
637S.W.Zdat 91617.
221d.
at 917. The Jamescourtdescribedthe scopeof the privilegefor matterswrittenin contemplationof a
judicial proceeding:
A wi!nessis absolutelyprivilegedto publishdefanmbxymatterconcerninganotherin
communicationspreliminaryto a proposedjudicial proceedingor as a:part of a judicial

proc&iig in whichhe is testifying,if it has somerelationto the proceeding.
Id.(quotingfrom THERESTATEMENT 2~ OFTORTS
$!588 (1981)).
“Id.
uRwsell,
620S.W.2dat 870.
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PageID 1459

You also ask whether a conditional or qualified privilege might be available to constructive
enforcement volunteers in defamation suits. This privilege applies to bona fide communications,
oral or written, made in good faith on any subject matter in which the author has an interest or with
reference to which he has a duty to perform, to another person having a corresponding interest or
duty.rr It does not change the actionable quality of the words published, but merely rebuts the
inference of malice that is imputed in the absence of privilege and makes a showing of falsity and
actual malice essential to the right of recovery.26 The communication of alleged wrongful acts to an
official authorized to protect the public from such acts is protected by a qualified privilege.27 In our
opinion, a constructive enforcement volunteer acting at the direction of the State Board of Public
Accountancy or of paid employees who supervise volunteers would have a sufficient interest in the
work of the board to invoke this privilege for communications to the board or to employees that have
a corresponding interest or duty with respect to the substance of the communication. Whether this
privilege would apply in a particular situation must be decided in light of all the facts and
circumstances.
We wish to emphasize that the privileges we have discussed apply only to utterances that are
made the basis of a subsequent suit for libel or slander. zs An action taken by a witness may be the
basis of a civil suit on other grounds, even though it is the subject of the witness’s testimony fin a
judicial or quasi-judicial proceeding. 29 Communicating investigative fmdings to the board and
testifying at hearings are only two of many tasks that constructive enforcement volunteers might
perform for the board. Causes of action other than an action for defamation might arise out of a
volunteer’s other activities on behalf of the board?”

%ay@ld v. Gleichert,
484 S.W.Zd619,625 (Tex. Civ. App.-Tyler 1972, no wit).
‘6rd.
at626,
27.Zzrafe
v.Corfinm,
553S.W.Zd652,655 (Tex. Civ. App.--CorpusChristi1977, no wit) (accusationfiled
with sheriffs office accusingdeputycountyclerkof unauthorizedloan of countyequipment).
“Charter
Med.Corp.v. Miller,
605 S.W.Zd943,953 (Tex. Civ. App.--Dallas1980, wit ref d n.r.e.).
*9James,
637S.W.Zdat 917-18 (defamationactioncannotbe basedon do&s communicationto ccnui of
diagmsesof plaintiffs mentalcondition,butdiagnosesthemselvesmaybe actionableon othergrounds,suchas medical
malpractice).
‘We. do not lmowthe Fidel
extentof the servicesperformedby constructiveenfonxment volunteers,because,
as the.executive directorof the Boardof Public Accountancyinformsus, theirservice includes “carryingout other
investigativetasks,as needed.”
p. 2562

27

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Mr. William Treaty - Page 8
Mr. Wayne Scott

Filed 04/07/26
(DM-457)

Page 28 of 49

PageID 1460

SUMMARY
A person who serves a state agency as an unwmpensated volunteer
is not entitled to indemnification against actual damages, court costs, and
attorney fees adjudged against him or her under the circumstances described
in section 104.002 of the Civil Practice and Remedies Code. Likewise, a
volunteer is not entitled to be defended by the attorney general in suits
subject to chapter 104 of the same code.
Constructive enforcement volunteers who assist in investigations for
the State Board of Public Accountancy would have an absolute privilege
against a civil action for defamation for statements made as witnesses in a
quasi-judicial proceeding before the board. They would have a conditional
or qualified privilege against a defamation suit under appropriate
circumstances. The conditional or qualified privilege applies to bona fide
wmmunications, oral or written, made in good faith on any subject matter in
which the author has an interest or with reference to which he has a duty to
perform, to another person having a corresponding interest or duty. The
absolute and conditional privileges apply only to a defamation suit and not
to other causes of action that might arise Out of a volunteer’s activities on
behalf of the Board of Public Acwuntancy.

DAN MORALES
Attorney General of Texas
JORGE VEGA
Fit Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Susan Garrison and Kymberly K. Ohrogge
Assistant Attorneys General

ps 2563

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Document 46-1

Filed 04/07/26

Page 29 of 49

PageID 1461

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:25-cv-00244-H-BV

TAB E
TEXAS ATTORNEY GENERAL
OPINION GA-0523
March 5, 2007
Referenced in: Section IV.A.3
Description:

A criminal district attorney is not covered by
Chapter 104 defense obligations because the
statute’s enumerated list of covered persons is
exclusive. Confirms that individuals not
specifically listed in § 104.001 fall outside the
AG’s defense authority.

Source:

Office of the Attorney General of Texas

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

29

Case 5:25-cv-00244-H-BV

Document 46-1

GREG

Filed 04/07/26

Page 30 of 49

PageID 1462

ABBOTT

March 5,2007

Ms. Margie Ainsworth
Interim Auditor
San Jacinto County
1 State Highway 150, Room B 1
Coldspring, Texas 7733 1

Opinion No. GA-0523
Re: County's payment of legal fees of a
criminal district attorney charged with criminal
offenses (RQ-046 1-GA)

Dear Ms. Ainsworth:
Your predecessor informed us that over the last few years, several local officials and
employees in San Jacinto County were defendants in diverse civil and criminal litigation.' His
request letter recounts that a number of such criminal charges, including charges against the criminal
district attorney for the county, resulted in acquittal or dismissal. See Request Letter, supra note 1,
at 2. Some of these officials and employees sought reimbursement for attorneys fees incurred in
defending these matters. See id. Given these circumstances, your predecessor asked whether the
state or the county may reimburse a criminal district attorney's legal fees incurred in connection with
official duties, whether the commissioners court may reimburse unbudgeted legal fees of county
officials without finding the existence of "a grave public necessity," and whether the county "would
expose itself to liability" if it pays the legal bills of some of the officials but not others. See id. at
2-3.
The request letter states that the county has not had a policy in the past to pay legal fees for
county officials charged with criminal offenses. See id. at 1. In work-related civil actions, the
county's insurance carrier has generally provided county officials with a defense, although in one
instance a commissioner had to pay for his own defense in a suit arising out of an accident involving
the commissioner's private trailer used to move county equipment. See id. at 1, 3. Recently,
however, the commissioners court adopted a policy that "[ilf and when an elected county official of
San Jacinto County, [Sltate of Texas incurs [certain civil or criminal legal] expenses and meets
[specific] criteria . . . , those expenses will be reimbursed by the ~ o u n t y . " ~

'See Letter from Mr. Ray Stelly, C.P.A., San Jacinto County Auditor, to Honorable Greg Abbott, Attorney
General of Texas, at 1-2 (Mar. 6, 2006) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter].
OF LEGALEXPENSES
FORELECTED
COUNTY
OFFICIALS,
submitted by Mr. Ray Stelly, C.P.A.,
'REIMBURSEMENT
San Jacinto County Auditor, to Honorable Greg Abbott, Attorney General of Texas (Mar. 6,2006) (submitted as part
of Request Letter, on file with the Opinion Committee, also available at http:llwww.oag.state.tx.us) [hereinafter
Reimbursement Policy].

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Margie Ainsworth - Page
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Page 31 of 49

PageID 1463

First, we are asked generally whether the criminal district attorney for San Jacinto County
would be covered by chapter 104 of the Texas Civil Practice and Remedies Code, concerning the
indemnification and defense of state officials in various circumstances. See Request Letter, supra
note 1, at 2; see also TEX. CIV. PRAC.& REM. CODEANN. $5 104.001-.002, .0035, .004-.005
(Vernon 2005); TEX.GOV'TCODEANN. 5 44.304 (Vernon 2004) (creating the office of criminal
district attorney for San Jacinto County). Chapter 104 covers "an employee, a member of the
governing board, or any other officer of a state agency, institution, or department." TEX.CIV.PRAC.
& REM. CODEANN. 5 104.001(1) (Vernon 2005). The chapter does not define "state agency,
institution, or department," nor has any court construed the phrase in the context of chapter 104.
However, a criminal district attorney must be considered to be an employee or officer of a "state
agency, institution, or department" for chapter 104 to apply. Id.
Article V, section 21 of the Texas Constitution provides for criminal district attorneys, as
well as district attorneys and county attorneys. See TEX.CONST.art. V, 8 21. The Legislature has
created the offices of criminal district attorneys by county. See TEX.GOV'TCODEANN. 5 44.001
(Vernon 2004) (providing that the voters of specified counties shall elect criminal district attorney).
As the Legislature provides, a resident criminal district attorney performs the duties of county
attorneys. See Neal v. Sheppard, 209 S.W.2d 388, 390 (Tex. Civ. App.-Texarkana 1948, writ
ref d) (stating "A resident criminal district attorney acts in lieu of the county attorney and necessarily
would perform the duties of the county attorney in both civil and criminal matters."). And the
geographic jurisdiction of the criminal district attorney is San Jacinto County rather than statewide.
See, e.g., TEX.GOV'TCODEANN.5 44.304 (Vernon 2004). We therefore conclude that the criminal
district attorney is not an employee or officer of a "state agency, institution, or department" for
purposes of chapter 104. See TEX.CIV.PRAC.& REM. CODEANN. 5 104.001 (Vernon 2005). Cf
Crane v. State, 766 F.2d 193, 195 (5th Cir. 1985), cert. deniedsub. nom., Dallas County v. Crane,
474 U.S. 1020 (1985) (finding a district attorney to be a county official for purposes of county
liability due to the district attorney's local election, funding, powers, and duties); Hill County v.
Sheppard, 178 S.W.2d 26 1,263 (Tex. 1944) (criminal district attorney is a "class or kind" of district
attorney). As a criminal district attorney is not a covered person under section 104.001, a criminal
district attorney is not entitled to be defended by the attorney general or receive reimbursement of
defense costs under that chapter. See TEX.CIV.PRAC.&REM. CODEANN.$5 104.001-.005 (Vernon
2005).
Next, we are asked broadly if the county is responsible for the criminal district attorney's
criminal defense. See Request Letter, supra note 1, at 2. As a court has determined, however, a
county does not have a general duty to provide for the criminal defense of any of its officers and
employees. See White v. Eastland County, 12 S.W.3d 97,102 (Tex. App.-Eastland 1999, no pet.).
A pertinent statute, section 157.901 of the Local Government Code, requires a county to employ and
pay for private counsel to represent a county official or employee in an action arising out of the
performance of public duties. See TEX.LOC.GOV'TCODEANN. 5 157.901 (Vernon 1999). The
court in White determined that section 157.901 creates a duty to provide for a defense in civil cases,
but does not create a duty to defend an official or employee against a criminal charge. See White,

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Ms. Margie Ainsworth - Page 3

Page 32 of 49

PageID 1464

12 S.W.3d at 10L3 The court in White also determined that the common law does not impose a duty
on a county to pay for the criminal defense of its officers and employees. Id. at 103. Consistently
with the opinion in White, we conclude that a county does not have either a statutory or common-law
duty to provide for criminal defense expenses of an officer or employee.
The reimbursement policy adopted by the commissioners court that was included with the
request letter represents another potential source of duty to reimburse an officer's or employee's
criminal defense costs. Reimbursement Policy, supra note 2, at 1. Although a county has no
statutory or common-law duty to provide or pay for criminal representation of its officers or
employees, it has the discretion to do so for certain kinds of claims. See White, 12 S.W.3d at 102-03
(discussing discretionary authority of county to pay employee or officer's criminal legal fees when
it serves a public purpose); see also Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9 (discussing limits
on a city's discretion to pay criminal defense expenses). The policy adopted by the commissioners
court states that legal expenses meeting certain criteria "will be reimbursed by the county."
Reimbursement Policy, supra note 2, at 1. We cannot say as a matter of law whether the policy
makes the county legally responsible for the criminal district attorney's legal fees, however. The
answer to that question would require a construction of the policy and resolution of fact questions,
which are matters for the commissioners court to determine in the first instance. See Tex. Att'y Gen.
Op. Nos. GA-0433 (2006) at 1 (stating that this office generally refrains from construing
ordinances); GA-0308 (2005) at 3 (approval of requested expenditure is a matter for commissioners
court to determine in the first instance). Consequently, we do not opine on whether the county policy
identified in this request requires the reimbursement of the criminal district attorney's legal expenses
in this instance.
We are also asked whether the commissioners court could pay any of these officials' legal
bills from the current budget only upon finding the existence of "a grave public necessity." Request
Letter, supra note 1, at 2. The request letter states that "payment of the bill is not budgeted." Id.
Local Government Code section 111.010 governs this question. See TEX.LOC.GOV'TCODEANN.
€j 11 1.010 (Vernon 1999). A commissioners court must "spend county funds only in strict
compliance with the budget, except in an emergency." Id. €j 111.Ol O(b). The court may amend the
original budget for an emergency item "only in a case of grave public necessity to meet an unusual
and unforeseen condition that could not have been included in the original budget through the use
of reasonably diligent thought and attention." Id. 5 111.010(c). Assuming that no budget item
corresponds to the payment of the legal expenses of an individual or individuals, it is correct that the
county may pay the bills from the current budget only by amending the budget upon the
commissioners court's finding of a grave public necessity consistent with section 111.01O(c). See
Tex. Att'y Gen. Op. No. GA-0426 (2006) at 7.
Finally, we are asked whether the county may pay legal bills in some instances but not in
others. See Request Letter, supra note 1, at 3. A county's "decision to provide or not provide

3Additionally, this office observed that the statutory predecessor to section 157.901 of the Local Government
Code applied to county officers and employees but not to a district attorney who is a district officer. See Tex. Att'y Gen.
Op. No. MW-252 (1980) at 2.

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Margie Ainsworth - Page
4
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Page 33 of 49

PageID 1465

counsel is one of governmental policy and discretion." White, 12 S.W.3d at 104 (discussing a
county's discretion to defend a sheriff from criminal charges). Provided that the official or employee
is not found guilty, the commissioners court may reimburse criminal defense costs upon its
determination that the prosecution was for an act performed in the bona fide performance of official
duties and that the expenditure will serve a public interest and not merely an officer's or employee's
private interest. See Tex. Att'y Gen. Op. No. JC-0294 (2000) at 1'2-3. Consequently, within these
bounds, the commissioners court has discretion to determine whether to pay legal bills in some
instances but not in others, subject to judicial review.

33

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46-1
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Margie Ainsworth - Page
5

Filed 04/07/26

Page 34 of 49

PageID 1466

S U M M A R Y
A criminal district attorney is not a person covered by chapter
104 of the Civil Practice and Remedies Code and is not entitled to be
defended by the attorney general or receive reimbursement of defense
costs under the chapter. A commissioners court has discretion to pay
for a person's legal expenses in a criminal matter upon findings that
the payment furthers a county purpose and that the prosecution was
for an act performed in the bona fide performance of official duties.
After approving its budget, a county may not pay for unbudgeted legal
defense expenses without a finding of grave public necessity.
Very truly yours,

A-

GREG
BBOTT
~ t t o r n e w e n e r a lof Texas

KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee

34

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Document 46-1

Filed 04/07/26

Page 35 of 49

PageID 1467

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:25-cv-00244-H-BV

TAB F
TEXAS ATTORNEY GENERAL
OPINION MW-475
May 20, 1982
Referenced in: Section IV.A.3
Description:

State universities lack authority to execute
contractual indemnity agreements. Universities
cannot agree to hold harmless or indemnify
private contractors, reinforcing that contractors
operate outside the state’s liability framework.

Source:

Office of the Attorney General of Texas

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

35

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Document 46-1

The Attorney

Filed 04/07/26

General

Page 36 of 49

PageID 1468

of Texas

May 20, 1982
MARKWHITE
Attorney

General

Supreme Court Suildin9
P. 0. BOX 12548
Austin. TX. 78711.2548
51214752501
Telex 91m74.1367
Telecopier 512/47502S9

1807 Main St., Suite 1400
Dallas, TX. 752014709
214&‘42-S944

4824 Alberta Ave.. Suite 160
El Paso. TX. 799052793
915r533-3484

122G Dallas Ave.. Suite 202
fiouston. TX. 77002699S
71-

806 Broadway. Suite 312
Lubbock, TX. 79401-2479
9W747-5238

43G9 N. Tenlh. Suite 6
McAllm. TX 795WlS95
512fss24547

2aa MaIn Plaza. twte 400
San Anfonlo. TX. 78205-2791
512/225%4191

A” Equal Opportunity/
Afftmutfve Action Employer

Mr. Al Hurley
President
North Texas State University
P. 0. Box 13426
76203
Denton, Texas

Opinion No.,m-475
Re:
Authority
of
state
universities
to
execute
contractual indemnity agreements, and related questions

Dear Mr. Huriey:
You have asked about the authority of the state to indemnify
others contractually. If such authority exists, you ask what acts can
be covered by the indemnity agreement. If .it does not exist, you ask
whether a contract containing such a” agreement
would be void or
voidable.
The following clause is one, you advise,’ that commonly is found
in contracts proffered by the university:
University shall indemnify and hold harmless
contractor from and ags’inst.any and all claims;
actions, or damages including .attoceys
fees
caused by or arising out of the performance,
failure to perform or breach of’ any of the
university’s obligations~under this lease.
,Some indemnity agreements require: the indemaitor to hold the
indemnitee harmless from liability arising by reason of the
indemnitee’s own acts. or arising from the acts of third parties. See
14. Tex. Jur.yI
Contribution and Indemnification 024, at 675. ‘But
x
V.T.C.S. arts. 249d. 2212b. The clause set out above Is notof
that type. h-ever.
It purports to indemnify- only ,against harm
arlsing from acts of the university itself.
To the extent that such a clause merely reinforces obligations
the university has legally undertaken eisewhere, and does not expand
or increasesthe school’s liability or the scope of its liability, it
is harmless surplusage. But to the extent that It purports to create
liability or potential liability on the part of the university beyond
its statutory or constitutional powers to incur liability, it is
invalid. The governing bodies of state universities are creatures of
statute and may ~o”stitutio”ally exercise only powers properly

36

P. 1669

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Document 46-1

Mr. Al Hurley - Page 2

(NW-475)

Filed 04/07/26

delegated to them by the legislature.
S.W.2d SO5 (Tex. 1932).

Page 37 of 49

PageID 1469

-See Foley V. Benedict, 55

A contractually imposed obligatfon of indemnity creates a "debt"
in the constitutional sense unless
at the time of the agreement it is
within the lawful and reasonable contemplation of the parties that it
will be satisfied out of current revenues or some currently available
fund. Tex. Const. art. III, §49. art. XI, §§5, 7; T A N.O.R.R.
Comlanv v. Galveston County, 169 S.W.2d 713~ (Tex. 1943). See also
Brown v. Jeffe&o n County,
406 S.W.2d 185 (Tex. 1966)~. Cf. city of
Big Spring v. Board of Control, 404 S.W.2d 810 (Tex. 1966)duration
and extent of liability controlled by agency); Harris County V.
Dowlearn, 489 S.W.2d ,140 (Tex. Civ. App. - Houston [14th Dist.] 1973,
writ ref'd n.r.e.) (orohibition not
annlicable to non-contractual
..
obligations). settidr; 49, article III of the Texas Constitution
commands that "no debt shall be created by or on behalf of the
State...." The only exceptions are for supplying casual deficiencies
of revenue, repelling invasion, suppressing insurrection, defending
the 'state in war, or paying "existing debt." The term "existing debt"
apparently refers to the debt existing ~ln 1876 when the provision was
adopted. Further, the provision places a $2OO,COO limit on "debt
created to supply deficiencies in the revenue."
There are no saving provisions fin the article III, section 49
constitutional prohibition against state debt such as there are in the
article XI, sections 5 and 7 provisions dealing with debts of cities
and counties. The latter..sectionprovides:
[N]o debt for any purpose shall .ever .be incurred
in any manner by .any city or .county unless
provision is made, at the time of creating the
same, for levying ,and collecting a sufficient tax
to pay the interest thereon and provide at least
two percent (2%) as a sinking fund...;
The Texas Supreme Court has held that this provision does not prevent
a county from agreeing to assume.indebtedness in the form of a "hold
harmless'! agreement so long, as provision is made. for levying and
collecting'the.tax required. Brown v. Jefferson Counte, gupra. See
also County of Ector v. City of Odessa, 492 S.W.2d 360 (Tex. Civ. AK
-E1Paso
1973. no writ).
In light of .~therestrictive constitutional'prohibition against
state debt, especially when coupled with the "cash basis" requirements
of article III. section 49a of the constitution, a state agency will
ordinarily be unable to execute an enforceable indemnity agreement in
favor of another party. Persons contracting with agents~of the state
are bound at their peril to ascertain the limitations of the agent's
authority and cannot recover to the extent the agent exceeds it.

p. 1670

37

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3 @f~-475)

Page 38 of 49

PageID 1470

Sta~te
V.
Ragland Clinic-Hospital, 159 S.W.2d 105 (Tex. 1942). Nor
will statutory "control and management" authority In the agent suffice
if there is no constitutional warrant for it. T & N.O.R.R. Company v.
Galveston'County, supra. See Kearse v. Kearse, 276 S.W. 690 (Tex.
1925). Constitutional limitations must be read into a statute so as
V. Kearse, supra;
"to restrict literalism to proper bounds." Kearse
cf.
Educ.
Code
9105.41
(management
and
control
of
N.T.S.U.).
-

A relatively recent Texas Supreme Court case might at first
appear to undermine the holding of State v. Ragland Clinic-Hospital.
supra. and then efficacy of the section 49, article III Idebt"
prohibition, but not if seen in proper perspective. In State v. City
National Bank of Austin, 603 S.W.2d 764 (Tex. 1980), the ,court held a
state agency liable for the "holdover occupancy" of office building
space wafter the expiration of a four year lease containing a
"holdover" clause. The state contended, as briefs on file with the
court reveal, that the "holdover" arrangement was a new one negotiated
with the lessor after the original lease expired, and.that the agency
was prohibited from contracting with respect to it by both the
"prekexisting law" provision of the constitution (article.111. section
44) and a' statute. But the state did not claim that, the original
lease had been invalidsfor lack of authority'in~ the agency -to.incur
debt on behalf of the state. Since the validity of the original lease
contract - which contained'a "holdover" clause -- was.uncontested,
the court said (after noting the state's contentions applicable only
to an alleged "subsequent" agreement): "In view of our holding that
the State is liable.because of the written agreement, we find it
unnecessary to discuss these points." Similarly, -the prohibition of
section 49, article III was not put at issues in either Board of
Regents of the University.of Texas v. S. 8 Gi. Construction Company,
529 S.W.2d 90. (Tex. .Civ. App. - Austin 1975, writ ref'd n.r.e.), or
University of Texas System V. Robert E. McKee,.Inc.. 521 S.W.2d 944
(Tex. Civ. App. - Eastland 1975, writ ref'd n.r.e.).
We think it continues ~to be the law in this state that the State
of Texas.,cannotbe held liable for a contractual obligation concluded
by an agent of the state in excess of his authority, and that no state
agent can be given authority to Incur or create a debt on behalf of
the state in contravention of.the constitution. See City of Wichita
Palls V. Kemp Public Library Board of Trustees, 593 S.W.2d 834 (Tex.
Civ. App. - Fort Worth 1980, writ ref'd n.r.e.). In holding that
Jefferson County had complied with the constitutional requirement that
provision be made for .levying and collecting the required tax, the
supreme court In Brown v. Jefferson County.-supr'a. did not declare
that the county was unconditionally bound to perform the indemnity
agreement as agreed. It said:
The 'hold and save' agreement herein .involved...
may be one which may be funded and paid off

p. 1671

38

.

.

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(MW-475)

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Page 39 of 49

PageID 1471

without violating any constitutional debt limit or
taxing restrictions applicable to counties. If
such obligation may be so discharged, the CounF
has bound itself to do so.... Necessarily, the
agreement to levy a 'sufficient tax' fromyear to
year is subject to constitutionally imposed
restrictions.... 406 S.W.Zd 189, 190. (Emphasis
added).
-See Galveston, H & S.A.Ry. Company v. Uvalde County. 167 S.W.2d 305
(Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.); Attorney
General Opinion..WW-423 (1958). See also Attorney General Opinion
C-385 (1965).
We advise, therefore, that only those obligations which the state
agency or university has the constitutional and statutory power to
discharge may be the subject of a valid indemnity agreement by it in
favor of others. An indemnity agreement negotiated by a state
instrumentality in violation of law is unenforceable and void,
although an invalid indemnity clause in an.otherwise enforceable
coutract'will not ordinarily invalidate the remainder of the contract.
See Williams v. Williams, 569 S.W.2d 867 (Tex. 1978); Paschal1 v. Gulf
c.& S.F.Ry. Company, 100 S.W.2d~183 (Tex. Civ. Appt - Dallas 1936).
modified and aff.'dsub nom. Campbell v. Pas&all, 121 S.W.2d 593 (Tex.
1938). See generally Susman, Contracting With the State Fiscal and
~Constitutional Limitations, 44 Tex. L.Rev. 106 (1966).
.~
SUhMARY
'Only those obligations which the state agency
or university has the constitutional and statutory
authority to discharge may be the subject of a
valid indemnity agreement by it in favor of
others. An indemnity agreement negotiated by a
state instrumentality in violation of law is
unenforceable and VOi&
although- an invalid
indemnity clause in an otherwise enforceable
contract will not ordinarily invalidate the
remainder of ~the contract.

JOEN W. FAINTER, JR.
First Assistant Attorney

General

p. 1672

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(nw-475)

RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
?PINION COMMITTEE
Susan L. Garrison, Chairman
Virglna Daugherty
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood

p. 1673

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

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Civil Action No. 5:25-cv-00244-H-BV

TAB G
TEXAS PROFESSIONAL ETHICS
COMMITTEE OPINION No. 579
November 2007
Referenced in: Section IV.B.2
Description:

Government legal offices constitute a single “law
firm” for purposes of conflict-of-interest
imputation under Texas Disciplinary Rule 1.06(f).
Conflicts attributable to one lawyer in a
government office are imputed to all lawyers in
that office.

Source:

State Bar of Texas

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

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THE PROFESSIONAL ETHICS COMMITTEE
FOR THE STATE BAR OF TEXAS
Opinion No. 579
November 2007

QUESTIONS PRESENTED
Question 1: May a lawyer in a public defender’s office avoid a conflict of interest arising
from representation of two different clients by referring one of the clients to another lawyer in the
same public defender’s office?
Question 2: May a lawyer in a public defender’s office, after concluding that a conflict
exists, continue to represent a client subsequent to withdrawing as counsel for another client?

STATEMENT OF FACTS
Lawyer, employed in a public defender’s office, represents Client A in a criminal case.
While this case is pending, Lawyer receives another assignment to represent Client B in a
separate criminal case. During the initial interview of Client B, it becomes apparent to Lawyer
that the criminal charges against both clients are substantially related to a single alleged incident.
It also becomes apparent to Lawyer that the interests of each client could become adverse to the
interests of the other client. Lawyer then concludes that, in view of Lawyer’s representation of
Client A, Lawyer will not be able to represent Client B because the continuing representation of
Client B would be materially affected by Lawyer’s continuing representation of Client A.
Lawyer proposes to continue to represent Client A and to withdraw from representing Clint B and
arrange for another lawyer in the public defender’s office to take over Client B’s case.

DISCUSSION
Raising questions of conflict of interest is first and foremost the responsibility of the
lawyers undertaking the representation of clients. See Comment 17 to Rule 1.06 of the Texas
Disciplinary Rules of Professional Conduct. In the facts presented, Lawyer correctly determined
that a conflict of interest under Rule 1.06(b)(2) would exist in the continued representation of
both Client A and Client B.
Rule 1.06(b) addresses conflicts of interest that arise in cases where clients are not
opposing each other in the same litigation within the meaning of Rule 1.06(a). Client A and
Client B, in the facts presented, are not opposing each other in the same litigation. Rule
1.06(b)(2) provides:
“(b) In other situations and except to the extent permitted by paragraph
(c), a lawyer shall not represent a person if the representation of that person:
...
(2) reasonably appears to be or become adversely limited by the lawyer’s
or law firm’s responsibilities to another client or to a third person or by the
lawyer’s or law firm’s own interests.”
Rule 1.06(b)(2) precludes the representation of Client B on the facts presented here
because Lawyer’s representation of Client B appears likely to become adversely limited by
Lawyer’s responsibilities to Client A. Moreover the exception provided by Rule 1.06(c) does not
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apply because Lawyer has concluded that representation of one of the two clients would be
materially affected by representation of the other.
The issue then becomes whether transferring Client B to another lawyer in the public
defender’s office will resolve the conflict. Transferring Client B to another lawyer in the public
defender’s office does not resolve this conflict of interest. Under Rule 1.06(f), any conflict that
prevents a particular lawyer from undertaking or continuing representation of a client also
prevents any other lawyer who is a member of or an associate with that lawyer’s firm from
undertaking the same representation. See also Comment 1 to Rule 1.06. A “ law firm” is defined
in the Terminology section of the Texas Disciplinary Rules of Professional Conduct as “. . . a
lawyer or lawyers in a private firm; or a lawyer or lawyers employed in the legal department of a
corporation, legal services organization, or other organization, or in a unit of government.” All
lawyers in a public defender’s office are in the same “law firm” for purposes of Rule 1.06(f).
Therefore, another lawyer in the public defender’s office may not represent Client B after Lawyer
withdraws from representing Client B because of a conflict of interest based on representation of
Client A.
If Lawyer withdraws from representation of Client B and the representation is not
undertaken by another lawyer in the public defender’s office, Lawyer may continue to represent
Client A without violation of the Texas Disciplinary Rules of Professional Conduct if the
following requirements are met: (1) Lawyer does not use to the disadvantage of Client B
confidential information that was obtained from Client B and that has not become generally
known unless Client B consents after consultation under Rule 1.05(b)(3) and (2) the
representation of Client A is not “adverse” to Client B within the meaning of Rule 1.09(a) or, if
the representation is adverse to Client B, Client B consents to Lawyer’s representation of Client A
under Rule 1.09(a).
Rule 1.06(e) contemplates that there will be circumstances in which, after multiple
representation becomes improper under Rule 1.06, the lawyer withdraws from representation of
one or more clients in order to remove the conflict of interest and then continues the
representation of one or more other clients. However, in such cases, the requirements of Rule
1.09 relating to conflicts of interest involving former clients must be considered. Rule 1.09
states:
“(a) Without prior consent, a lawyer who personally has formerly
represented a client in a matter shall not thereafter represent another person in a
matter adverse to the former client:
. . .
(3) if it is the same or a substantially related matter.”
If Lawyer’s representation of Client A is not adverse to Client B, then Rule 1.09 would not affect
the representation. However on the facts presented Lawyer would have to consider whether it
was likely that either Client A or Client B would be a witness against the other. See Comment
4A to Rule 1.09. If because of such circumstance or for some other reason, the representation of
Client A would be adverse to Client B, then Lawyer could represent Client A only if Client B
gave valid consent to the representation under Rule 1.09(a).

CONCLUSION
Question 1 is answered in the negative. A public defender’s office is a “law firm” as
defined in the Terminology section of the Texas Disciplinary Rules of Professional Conduct.
Therefore, under Rule 1.06(f), a conflict of interest precluding a lawyer in the public defender’s
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office from representation of a client precludes the representation of the client by any other
lawyer in that office.
Question 2 is answered in the affirmative, provided that the continued representation is
not “adverse” to the former client under Rule 1.09 of the Texas Disciplinary Rules of Professional
Conduct and that there is no violation of Rule 1.05 relating to use of confidential information
obtained from the former client. If, however, the continued representation of a client is or
becomes “adverse” to the former client, consent for continuing representation of the client must
be obtained from the former client as required under Rule 1.09. Further, in the absence of an
exception to the general prohibition on revealing or using confidential information received from
clients, confidential information that was obtained from the former client and remains
confidential may not be used to the disadvantage of the former client without the former client’s
consent after consultation as required by Rule 1.05(b)(3).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

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Civil Action No. 5:25-cv-00244-H-BV

TAB H
STUDENT CONDUCT BOARD
FINDINGS (EXCERPT)
Dkt. 27-8, p. 6
Referenced in: Section IV.A.1
Description:

Defendants’ own filing describing Defendant
Gibson as “an outside attorney” — supporting
Plaintiff’s position that Gibson is not a state
employee entitled to AG representation under
Chapter 104.

Source:

Filed by Defendants in support of Motion to
Dismiss (Dkt. 27)

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

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questioned an attending physician’s diagnosis . Dr. Nunez’s evaluation is one of the six
“below expectations” professionalism evaluations referenced above.
Each of Dr. Bass’s six grievances is addressed below in the Findings section.
III.

Hearing and Process
a. Pre-Hearing Process

On November 9, 2023, Dr. Trotter sent Dr. Bass a letter informing him that TTUHSC was
consolidating multiple outstanding matters regarding Dr. Bass, including the pending misconduct
complaints, his “below expectations” professionalism evaluations, and his grievances, into the
Consolidated Hearing process. Dr. Trotter also stated, “To ensure that you are afforded maximum
due process, the Consolidated Hearing will proceed according to the Student Conduct Board
hearing procedures as set forth in the TTUHSC Student Handbook, Part II Code of Professional
Conduct.”
On November 16, 2023, Dr. Morales, as Chair of the Student Conduct Board, provided Dr.
Bass and Dr. Islam the hearing notice, including the names of the five Board members, in
accordance with the Code of Conduct Part II.F.4.b. In addition, the hearing notice included: (i) a
list and copies of the four misconduct complaints against Dr. Bass and the relevant Code of
Conduct sections allegedly violated; and (ii) the first five “below expectations” performance
evaluations to be considered under the SOM Operating Policy 40.04, Student Promotion. 1 Dr. Bass
was provided an opportunity to challenge the individual Board members in accordance with Part
II.F.4.b. He did not provide any challenge to the specific Board members, and instead expressed
general concerns about bias against him at TTUHSC and challenged “the impartiality of the
committee, as a whole.” In accordance with Part II.F.4.b, Dr. Trotter denied his challenge.
In addition, the parties were provided the opportunity to present evidence in accordance
with the Code of Conduct Part II.F.4.d, and each parties’ submission was shared with the other
party in advance of the hearing in accordance with Part II.F.4.e. Notably, Dr. Morales granted Dr.
Bass multiple extensions to present evidence beyond the applicable deadline. Both parties
submitted evidence to the Board, and the SOM Administration included the sixth “below
expectations” performance evaluation in its submission, as the evaluation had been completed in
the intervening period.
b. Consolidated Hearing
The Board conducted the Consolidated Hearing on December 11, 2023. The hearing was
conducted in accordance with Part II.F.4 of the Code of Conduct. As the Chair of the Student
Conduct Board, Dr. Morales delegated his authority regarding procedural matters to the Hearing
Officer, Darren G. Gibson, an outside attorney who is experienced in conducting these types of
hearings for higher education institutions. Mr. Gibson conducted the hearing as hearing officer and
addressed any issues related to evidence and relevance. Each Board member confirmed that they
had reviewed the evidence and information provided by the parties prior to the hearing.
1

At the time of Dr. Morales’s letter, Dr. Thomas’s Family Medicine evaluation was not yet completed.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

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Civil Action No. 5:25-cv-00244-H-BV

TAB I
LBB CONTRACTS DATABASE
SUMMARY
Darren G. Gibson / Littler Mendelson P.C. /
Michael Best & Friedrich LLP
Referenced in: Sections IV.A.1, IV.A.2
Description:

38 contracts with 11 Texas state agencies (2018–
2027), with total contract authority exceeding $3.2
million. Documents Gibson’s independent
contractor relationships across the state.

Source:

contracts.lbb.texas.gov (258,678 contracts
searched); supplemented by TPIA responsive
documents

Appendix to Plaintiff’s Motion to Disqualify Counsel
Bass v. TTUHSC et al., No. 5:25-cv-00244-H-BV

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LEGISLATIVE BUDGET BOARD CONTRACTS DATABASE
Summary: Darren G. Gibson / Littler Mendelson, P.C. /
Michael Best & Friedrich LLP

Source: contracts.lbb.texas.gov (258,678 contracts searched)
Supplemented by TPIA responsive documents from TSUS, UTS, TTUS, OAG
Date compiled: March 5, 2026

I. TEXAS TECH UNIVERSITY SYSTEM (Agency 768)
8 contracts — $393,000 total
OCC / Contract No.

Vendor

Term

2020-768-0641

Littler Mendelson

2020-03 to 2021-08

Value
$49,000

2020-768-0674

Littler Mendelson

2020-06 to 2021-08

$49,000

2022-768-0123

Littler Mendelson

2021-09 to 2023-08

$49,000

2022-768-0124

Littler Mendelson

2021-09 to 2023-08

$49,000

2024-768-0010 *

Littler Mendelson

2023-09 to 2025-08

$49,000

2024-768-0018

Littler Mendelson

2023-09 to 2025-08

$49,000

2025-768-0071 *

Michael Best

2025-05 to 2025-08

$50,000

2026-768-0034

Michael Best

2025-09 to 2027-08

$49,000

* Contract under which Gibson presided over Plaintiff’s December 11, 2023 hearing.

II. TEXAS STATE UNIVERSITY SYSTEM (Agency 758)
4 contracts — $448,997 total
OCC / Contract No.

Vendor

Term

2022-758-0459

Littler Mendelson

2021-10 to 2023-08

Value
$339,000

2024-758-0159

Littler Mendelson

2023-09 to 2025-08

$49,999

2025-758-0065

Michael Best

2025-04 to 2025-08

$9,999

2026-758-0176

Michael Best

2025-09 to 2027-08

$49,999

III. UNIVERSITY OF TEXAS SYSTEM (Agency 720)
8 contracts — $600,000+ total
OCC / Contract No.

Vendor

Term

Value

2018-720-0432

Littler Mendelson

2018

Redacted

2020-720-0427

Littler Mendelson

2019

Redacted

2022-720-0199

Littler Mendelson

2022

Redacted

2024-720-0347

Littler Mendelson

2024

Redacted

2024-720-0564

Littler Mendelson

2024

Redacted

2025-720-0069

Michael Best

2025

Redacted

2025-720-0070

Michael Best

2025

Redacted

2026-720-0015

Michael Best

2025 to 2027

$600,000

IV. OTHER STATE AGENCIES
Agency

Contracts

Total Value

Lamar University

1

$339,000

Stephen F. Austin State University

4

$317,554

Teacher Retirement System of Texas

2

$190,000

Texas Woman's University

2

$187,041

The University of Texas Rio Grande Valley

1

$35,000

University of Houston

3

$633,000

University of North Texas System

3

$372,493

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Administration

TOTALS
Total contracts (excl. Comptroller):

36

Total documented contract authority:

$3,516,085+

TTUS-specific total (relevant to this motion):

$393,000

Consecutive TTUS contracts (2020–2027):

8

Note: Multiple UTS contracts have redacted caps. Minimum documented figure shown. Hearing officer role expressly in scope of TTUS contracts.
Independent contractor status defined in Section 8.1 of each OCC.

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