§ 108.001.Definitions

The definition, and its exclusion and its addition both matter.

"Public servant" means a person who is a public official elected or appointed to serve a governmental unit and acting in that capacity when the act or omission occurred, or who is covered by the state or local government indemnification chapters.

Borrowing the two indemnification chapters is the efficient part. Those chapters already define who the state and local governments protect, and this chapter’s liability cap follows the same people.

The connection is not accidental. The cap applies only where the person is covered for the amount below it — by indemnification or insurance — so the two regimes are designed to interlock.

The exclusion is substantial: an independent contractor, an agent or employee of an independent contractor, or another person who performs a contract for a unit of government.

So contracted service providers are outside the cap, even where the state indemnification chapter covers some of them.

The reasoning is that a contractor prices its own risk. A company contracting with government sets its fee knowing its exposure and carries its own insurance, which an appointed official does not.

One category is added back: a licensed physician who provides emergency or postemergency stabilization services to patients in a hospital owned or operated by a unit of local government.

That addition is aimed at a real problem. Emergency physicians at public hospitals are frequently contractors rather than employees, they treat patients they did not choose in conditions they do not control, and without the cap public hospital emergency departments are harder to staff.