Untitled Texas Attorney General Opinion

Hon. Geo. H. Sheppard Opinion No. V-722 Comptrollerof Public Accts. Austin, Texas Re: Authority of A. &'M. College of Texas to pay premiums for lia- bility insurance on its airplane. Dear Sir: We refer to your recent letter from which we quote :

"I am attaching hereto Voucher No. 60, DepartmentNo. 842, Agriculturaland Mechanical College of Texas to Franks- Vincent Insurance Service covering~badily injury liabilityand.,property.damage liability under Hartford Accident dcIndemnity Company Aircraft Liability 80. HA3-2134 premium for $106.59, together with a letter addressed to this departmentOctober 23, 1948 from the auditor of A & M College. "1 shall thank you to advise this depart- ment whether we may legally issue warrant in payment of this claim." In submitting its voucher No. A-235 to the Comptrollerof Public Accounts for issuance of warrant thereon, the Auditor of A. & M. College attached his letter, which reads, in part: "This claim is submitted under auth- ority contained in House Bill No. 2.46, passed by the 50th LegislatureRegular Ses- sion, being the fifth paragraph of Section 4, which reads as follows: 'Any maintenance or support items listed in the Main College, or any of its branches or services shall be construed to include labor, supplies, equip- ment, travel, repairs, workmen's compensation payments, insurance and bond premiums, and contingentexpense.*

Hon. Geo. H. Sheppard, page 2 (V-722).

"Attorney Generals 0 inions O-184 O-201 O-S42 O-1100 O-E762 and O-2150 relative to ihe mat& of insurance are referred to in Opinion O-4315 which quotes from Opinion O-1100 as follows: n*An available specific appropriation to pay the premium on any kind of a policy issued in favor of the State would amount to a subsequentdeclarationof policy by the Legislatureand would, to that extent, repeal the policy announced by the Resolu- tion above referred to.' (Senate Concurrent Resolution No. 3, passed by the Second Call- ed Session of the 37th Legislature).n Senate ConcurrentResolution Ho. 3; passed in. the Second Called Session, 37th Legislature,Acts 1921, reads, in part: uResolved,by the Senate of the State of Texas, the House of Representativescon- curring therein, That hereafter it shall be and is the fixed policy of this State that the State shall carry its own insurance up- on State buildings and contents, and that no insurance policies shall be taken out upon any of the public buildings of this State, nor upon the contents thereof, and the State Board of Control and all other Boards having charge of buildings of the State, and the contents of such buildings, are hereby instructednot to have such build- ings nor property insured, notwithstanding there may be items in the appropriationbills authorisingthe expenditureof money for the payment of insurance premiums . . . "Provided,however, that this resolu- tion, or any part of its provisions shall not apply to or affect the University of Texas, and its branches, and that it is the fixed policy of the State that all buildings and the contents thereof belonging to.the Universityof Texas, and its branches, shall be kept insured at all times against any loss by fire or tornadoes." Section 13 of Article VII, Constitutionof Texas,

Hon. Geo. H. Sheppard, page 3 (V-722)

provides: "The Agricultura.1and Mechanical Col- lege of Texas . . i is hereby made, and constituteda Branch of the University of- Texas, for,the instructionIn Agriculture, the Mechanical Arts, and the Natural Sciences connected therewith . . .e The authority of the Board of Directors of A. & M. College to purchase airplanes and to acquire an air- port and equipment therefor is recognized in Attorney General?8 Opinion No. V-07 citing Articles 2608, 2615~. and 2613, Section 6, V. C. S. A careful search of the State laws and resolu- tions subsequentto,the passage of S.C.R. No. 3, Acts 1921, herein quoted, will reveal no change of legisla- tive,policywith respect to the insurance against loss by fire and tornadoe~aof the public buildings and pro- perty therein referred,to. We are apprised of no stat- ute or resolutionwhich authorizes,expressly or by im- plication, the Directors of the A. & M. College to use its public funds to pay property liability or casualty liability premiums on insurance policies purportingto cover such liabilities. It is well establishedlaw in Texas, that the State is not liable for the torts or negligence8of its officers, agents or servants engaged in the performance of a governmentalfunction unless it has first express- ly assumed such liability. See Attorney Generalts Opin- ion No. O-1100 and authoritiesstated therein; State v. Morgan, 170 S.W. (2d) 652. The question arises whether the State has assumed such liability when it enacted that part of Section 4 of H.B. 246. 50th Legislature, Acts 1947, at page 665, appertainingto A. & W. College, which reads: UAny maintenanceor support items list- ed in the Main College, or any of its branches, or services shall be construed to include . . . insurance premiums . ~. .R We think such provision is clear and unambigu- ous. Insofar as insurancepremiums are concerned, it authorizes the College to pay out df its funds appropri- ted for College maintenanceand support, premiums on in- surance policies authorizedunder existing Texas laws,

Hon. Geo. H. Sheppard, page 4 (V-722)

such as insurance on property damage to College proper- ties occasioned by fire or tornadoes. Attorney General's Opinions Nos. O-6246 and O-1762. There is absent there- from any expressionon the part of the Legislatureto assume property liability or casualty liability occasion-. ed by the officers, agents or servants of A. & M. College, or to authorize the College Board to expend appropriated funds for liability insurance premiums. Furthermore, H. B. 246, Acts 1947, is an appropriationbill as dia- tfnguished from general legislation;its provisionsmay not be construed to repeal express1 or by Mplication general legislationor established"a~. Pi Moore v. Shep- pard. 192 S.W.(2d) 559. In short, ue can find in said Section 4, no language indicativeof a change of legia- lative policy with respect to insurance of A. 6:M. pro- pert.ieawhich differa with that announmced in S.C.R. Ho. 3, A&a 1921. Since ~theState I’S no,t, 1,iablefor the tort.s or negligence of its offit?e'rsiagent~sor employees,be- ing protected therefrom by reason of its sovereignty, it follows that the Board of Directors of A. & 14.Col- lege has no authority to expend its pub1i.cfund for protective liability insurance for which i,thas no need. Opinion No. o-1100. Accordingly,the remium on the policy under considerationmay not lega,Ely be paid from the current appropriationsmade to A. & W. College in -maintenanceand support items for *insuran&epremiuzP. Sec. 4, H. B. 246, Acts 1947; Attorney General*s Opin- ion O-4315. SD?@lARY The Board of Directors of A. & M. Col- lege has no authority to pay premiums for liability insurance on its airplane out of current appropriationsmade in H. B. 246, Acts 1947. Section 4 of H.B. 246, permittingthe use of A. & N. Collegets umaintenanceand support items for . . . insurance remiumd,$ does not change or enlarge the legiaPative po&ic~Ywith respect to insurance of State properties as

Hon. Gee. H. Sheppard, page 5 (V-722)

announced in S.C.R. Ho. 3, Aeta 192L Attorney General's 0 inion O-UOO; State v. Morgan, 170 S.W. P2d) 652. Yours very truly, ATTORNEY GENERAL OF TEXAS

~~~ BY Cheater E. Olliaon Assistant

CEO:mw:mds

APPROVED:

22iL &+AP ATTORNEY GEWRAL

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