§ 104.002.State Liability; Conduct Covered

The conduct covered, and the exclusions are where most of the work is done.

Every route requires that the damages be based on an act or omission in the course and scope of the person’s office, employment, contractual performance or service on behalf of the agency.

The first route is negligence — except a wilful or wrongful act or an act of gross negligence.

The second is the significant one: damages arising from deprivation of a right, privilege, or immunity secured by the constitution or laws of this state or the United States.

That is the federal civil rights claim, which is how most suits against state officials are brought — and the state indemnifies against it.

The exclusion is correspondingly important: not where the court in its judgment or the jury in its verdict finds that the person acted in bad faith, with conscious indifference or reckless disregard.

Note that the finding must come from the judgment or the verdict. The attorney general does not make it, and an allegation of bad faith is not enough — it must be found.

The third route is open-ended: indemnification is in the interest of the state as determined by the attorney general or his designee.

That is a discretionary catch-all, allowing indemnification where neither of the first two applies, on the attorney general’s judgment about the state’s interest.

Subsection (b) is a separate and unconditional route for waste manifests. Where a person is liable solely because they signed an industrial solid waste or hazardous waste manifest, signed it in the course and scope, and did not increase or aggravate contamination by grossly negligent acts or wilful misconduct, the state is liable — and the damages caps do not apply.