              -E    A'rrom               GENE-
                           OF   TEXAS
                        Avs-      11.-
GROVER SELLERS




  Honorable D. C. Greer
  State Highway Engineer
  Austin, Texas
  Dear Sir:                     Opinion No. O-5790
                                Re: State Highway Department
                                      Liability for negligent opera-
                                      tion of Ferry.
            Your letter of January 6, 1944, addressed to the Attor-
   ney General, has been received. The pertinent facts stated in
   your letter are as follows:
           'On Nov. 6, 19'13,the motor ferry 'Jefferson'
      operated by the Texas Highway Department between
      Galveston Island and Port Boliver was blown by a
      storm into the cluster piling at the north side
      of the entrance to the landing on the Bolivar
      side. The Impact was great enough to cause all
      vehicles parked and blocked on the deck of the
      boat to move forward, resulting In damagetothree
      vehicles. A claim has been flied with the Depart-
      ment for damages to one of the motor vehicles Fn
      the sum of $136.83 by the Cook Paint &Varnish
      Company of Ft. Worth.   ......Will you please ad-
      vise me if the Texas Highway Department Is liable
      to the Cook Paint & Varnish Company for the dam-
      ages to the vehicle resulting from the Incident
      outllnad above and If so what procedure must be
      followed by the Cook Paint & Varnish Company to
      effect collection of their claim?"
            The application of the law ln regard to thls State of
   facts hinges on the question as to whether or not the State,
   by and through its agency the Texas Highway Department, was
   performing a governmental function or.one merely industrial or
   proprietary in character, In the operations of the ferry in
   question.
           In the case of State vs. Elliott, 212 S.W. 695, decided
  In 1919 by the Galveston Court of Civil Appeals and in which a
  Writ of Error was refused, It was held that the State in the
  operation of a railroad was performing an lndustrlal or proprie-
  tary function and not a strict governmental one, and thereby Was
Honorable D. C. Greer, page 2        O-5790


liable for damages for the injury of an employee.   In this case
it was said:
         'When a state embarks in an enterprise which
    1% usually carried on by Individual persons or com-
    panles, it voluntarily waives its sovereign character,
    and is subject to like regulation with persons en-
    gaged in the same calling.          And it Is not true
    ln any such broad sense as aipiliant contends that
    a state cannot become liable, without contract, for
    tortlous conduct of those representing it. Ordinarily
    officers and agents performing duties prescribed by
    law in the ordinary affairs of the government violate
    those laws or exceed their authority when they per-
    petrate wrongs. For such conduct no liability of the
    state arises. But sometimes    the officer or agent
    acts for the state, as did those Fn charge of this
    railroad, in doing the very things prescribed by the
    law under which he acts, in doing which he commits
    a wrong to another. . . . . The contention that the
    state is liable in this case asserts nothing novel.
    Other states have owned railroads, canals, and other
    businesses, and have accepted the consequences of
    their ownership of the Institutions and business,
    generally by statute, as in the case of Georgia with
    reference to its rallroads, and of New York in
    reference to its canals. The declslons in those
    states show that they have assumed full liability
    for all such claims as we present here. The sugges-
    tion In appellant's argument that the ownership and
    operation of this railroad by the state constituted
    a part of the ordinary conduct   of governmental
    affairs seem not to need extensive notice. It seems
    too plain to require comment that the manager and
    those in charge of this railroad were not engaged
    in the performance of duties to the state incident
    to the conduct of Fts penitentiaries and care for Its
    convicts. Such an argument disregards all distfnc-
    tions in government."
         In the case of Brooks v. State, 68 S.W. (26) 534, de-
cided by the Austin Court of Civil Appeals Ln 1934, and in which
a Writ of Error was denied, lt was held that the State was not
liable for injuries received by an employee of the State Highway
Department while Fn the employ of said department, such Injuries
being caused by the negligence of a fellow-employee while they
both were engaged in repairing a state highway, the opinion
stating that:
-   .




        Honorable D. C. Greer, page 3       O-5790


                 “It is now settled that the location, dealgna-
            tlon, construction, and maintenance of state hlgw-
            wags by the highway department aa an agency of the
            state Is a governmental function. It la likewise
            settled that the state ia not liable for the torts
            or negligence of its officers, agents, or servants
            engaged in the performance of a governmental func-
            tion, unless it has expressly assumed such liabil-
                        Appellant relies In large measure on
            %‘caie*o;   State v. Elliott (Tex. Civ. App.) 212
            s.w.~695,6gg, wherein a recovery against the state
            was affirmed for damages growing out of the opera-
            tion by the state of a railroad. Thls recovery was
            based clearly, we thLnk, upon the principle that
            the operation of such enterprise was not a govern-
            mental finctlon, but industrial or proprietary in
            character; and the holding in that case is not in
            derogation of the well-established rules relating
            to strictly governmental function8 such as the one
            here involved. It does not, therefore, control
            the issues here presented."
                 In the case of Martin v. State, 88 S.W. (26) 131, It
        was decided by the El Paso Court of Clvll Appeals Fn 1935 that
        a highway worker injured by dynamite blast set off during lunch
        hour, contrary to rule and custom, was not entitled to recover
        against State and Highway Commission on theory of breach of con-
        tractual duty to furnish safe place to work. This case and an
        earlier case cited therein, State v. McKlnney, 76 S.W. (26) 556,
        follow Brooks v. State, supra, and they all Involve actual re-
        pair and maintenance of a highway and the injured partfes were
        hurt by fellow-employees, but as the controlling factor is the
        capacity In which the State acted the principle of law Involved
        extends to the class of litigation involved hereln.
                 In 1933 by H.B. No. 196 of Gen. Laws, 43rd Leg. 1st
        Called Session, the Legislature authorized the State Highway
        Department to purchase or construct, and malntaln, operate and
        control ferries on certain waterways where the ferries connect
        designated.state highways, and the ferry in question is operated
        under and by virtue of thFs authority. There is no expressed
        assumption of liability on the part of the State in regard to
        such power.
                 If the operation of this ferry by the State comes under
        the term "maintenance of a highway", by reason of connecting the
        two ends of the highway and allowing traffic to Continue across
        same, then Lt would be reasonable to assume that in the operation
        of the ferry the State is engaged in the discharge of a govern-
        mental function. The Texas Supreme Court held Ln the Case Of
Honorable D.C. Greer, page 4             O-5790     i


Dallas County v. Plowman, 91 S.W. 221, in defining the word       -
"maintenance', as used in a tax law, as follows:
         "The purpose of the Legislature in making the
    amendment was to increase the capacity of the County
    to malntaln a system of public roads, and the word
    'maintenance' must be held to include all of the
    things necessary to be done to accomplish that pur-
    pose."
         The purpose of a highway being to allow persons to
travel under their own power and control from one place on it
to another with a minimum of difficulty, It certainly stands to
reason that anything bridging an Impassable gap in a hlghway,
whether an immovable bridge or a movable ferry, is necessary in
carrying out this purpose.
         It is therefore the opinion of this department that the
State in operating such ferry was engaged in the maintenance of
its highway system which Is a governmental function, and It Is
not liable to the Cook Paint & Varnish Company for any damage
that may have been sustained by It due to the negzlgence of the
State's employees in operating the said ferry. This holding
renders unnecessary the answering of the last part of your
question.
                               Yours very truly,
                          ATTORNEY GENERAL OF TEXAS

                               By s/Robert L. Lattimore, Jr.
                                    Robert L. Lattlmore, Jr.
                                    Assistant

RLL:gm:wc
APPROVE) JAR 28, 1944
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS

Approved Opinion   Commfttee By   s/AW   Chairman
