Texas Attorney General Opinion: DM-346 Page: 4 of 7
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Mr. Todd K. Brown - Page 4
Section 402.063 of the Labor Code authorizes the commission to appoint an
executive director who "is the executive officer and administrative head of the
commission. The executive director exercises all rights, powers, and duties imposed or
conferred by law on the commission, except . . [those] specifically reserved.., .to
members of the commission [and] serves at the pleasure of the commission." Labor Code
402.041; see also id. 402.004(b) (voting requirements for decisions regarding
employment of executive director). The executive director conducts "the day-to-day
operations of the commission in accordance with policies established by the commission
and otherwise implement[s] commission policy." Id. 402.042(a). In addition, the
executive director appoints division directors who serve at his or her pleasure. Id.
402.021. Thus, at the very minimum, the executive director is "executive management
staff' for purposes of director's and officer's liability insurance. Whether other positions
are included in the term "executive management staff' according to the factors described
above involves issues of fact and must be determined on a case-by-case basis.' See also
supra note 4.
You also ask whether the purchase of director's and officer's liability insurance by
a state agency as authorized by section 53 constitutes a waiver of the state's sovereign
immunity. The Texas Tort Claims Act provides for limited governmental liability, and
waives sovereign immunity to suit to the extent of that liability. See Civ. Prac. & Rem.
Code 101.021, .025. "To the extent an employee has individual immunity from a tort
claim for damages," it is not affected by the Texas Tort Claims Act. Id. 101.026. Paid
board and commission members are "employees" for purposes of the Texas Tort Claims
Act. See supra note 1. In essence, you ask whether section 53 constitutes a waiver of the
state's sovereign immunity to any greater extent than the waiver in the Texas Tort Claims
Act. We believe it does not for the following reasons.
(footnote continued)
municipality to cover only those persons "whose position, power, and duties are established in the
municipal charter." We decline to construe the appropriations act provision to authorize the purchase of
liability insurance only for those department employees whose position, power, and duties are established
pursuant to state law. Most state agencies have only one or at most two positions set forth by statute.
Section 53 uses the term "executive management staff." The use of the term staff suggests that the
legislature intended to authorize state agencies to purchase liability insurance for more than one or two
positions.
5For example, section 402.021 of Labor Code requires the executive director to appoint "directors
of the divisions of the commission" and provides that they "serve at the pleasure of the executive
director." Although the directors listed in section 402.021 are clearly at-will employees, we do not believe
that their at-will status is dispositive in determining whether they are "executive management staff" for
purposes of the appropriations act provision. Rather, whether such employees are "executive management
staff" will depend upon the factors set forth above.p. 1841
(DM-346)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-346, text, May 3, 1995; (https://texashistory.unt.edu/ark:/67531/metapth274155/m1/4/: accessed May 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.