The Honorable Homer A.         Foerster                 Opinion No.     H-   158
Executive Director
State Board of Control                                  Re:      May liability insurance
P. 0. Box 13047, Capitol       Station                           be procured by the Board
Austin,  Texas 78711                                             of Control for power driven
                                                                 lawn mowers and edgers
                                                                 used for groundskeeping
                                                                 on the Capitol Complex
                                                                 grounds under either the
                                                                 provisions   of the Texas
                                                                 Tort Claims Act, Article
                                                                 6252-19,   V. T. C. S. , or
Dear   Mr.    Foerster:                                          Article 6252-19a,    V. T. C. S.

    Your letter requesting our opinion points to the fact that the Board of
Control, .in carrying out its groundskeeping       responsibilities     in the area of the
Capitol Complex,    uses a number of power driven lawn mowers which create
a potential hazard ~to visitors,   State officials  and State employees.        You note
that both the Texas Tort Claims Act (Article        6252-19,    V. T. C. S. ) and Article
6252 -19a, V. T. C. S. , authorize the purchase of liability insurance.           Clearly
the Board of Control is a “unit of government”        as that term is defined in 5 2(l)
of the Tort Claims Act.      Section 9 of that Act authorizes       all units of govern-
m&t “to purchase policies of insurance providing protection               for such units
of government,   their officers,  agents and employees agkinst            claims brought
under the provisions   of this Act . . . ”

    Article    6252-19a,   V. T . C. S. , provides,   in part:

         “Section 1. The State Department       or Agencies    who own
         and operate motor vehicles      . . . shall have the authority
         to insure their officers   and employees    from liability
         arising out of the use’, operation and maintenance       of such
         automobiles,   trucks,   tractors,  power equipment . . .
         used or which may be used in the operation of such
         Department   or Agency.      Such insurance    shall be provided




                                          p.   732
TheHonorable        Homer    A.   Foerster,    page 2   (H-158)




        by the purchase   of a policy or policies for that
        purpose from some liability insurance company
        or companies    authorized to transact business    in
        the State of Texas . . . .

        ‘1.   . .

        “Sec. 4.   Such payments are to be charged against
        the maintenance  fund of the department for which
        such employee is employed. ‘I

    Each of these statutes is, in our opinion, sufficient “pre-existing    law”
to satisfy the requirements  of Article  3, $44 of the Constitution.    Austin
National Bank v. Sheppard,    71 S. W. 2d 242 (Tex. 1934); Atto.rney General
Opinion V-84 (1947).

     The Legislature,        in the Appropriations Act for fiscal   1974 and 197.5 (House
Bill 139, 63rd Leg.,        1973), among its general provisions     ($ 54 of Article V)
provides:

             “None of    the funds appropriated in this Act may
        be expended     for the purpose of purchasing policies
        of insurance     covertng claims arising under the Texas
        Tort Claims      Act. ”

     Claims which arise under the Texas Tort Claims Act are claims against
units of government   and not against their employees   or officers.   There is
a distinction between appropriations   for claims arising under the Tort Claims
Act and those arising under Article 6252-19a    and the common law.      Attorney
General Opinion M-1215 (1972), despite a similar restriction      upon use of
appropriated   funds, held that the Parks and Wildlife Department     might use
its funds to purchase insurance provided for by Article    6252-19a,   V. T. C. S.

    Your precise     question     to us is:

            “May liability insurance be procured by the Board
        of Control for power driven lawn-mowers        and edgers
        used for groundskeeping     on the Capitol Complex grounds
        under either the provisions    of the Texas Tort Claims
        Act, Article 6252-19,   Vernon’s    Civil Statutes or Article
        6252-19a,   Vernon’s  Civil Statutes? ”



                                          p.   733
The Honorable   Homer   A.   Foerster,            page 3    (H-158)




    We ‘answer your question that insurance may be purchased pursuant to
Article  6252-19a,  V. T. C. S. , to insure the officers  and employees  of the
Board of Control from liability growing out of the operation of power driven
lawn mowers and edgers used in groundskeeping          on the Capitol Complex grounds
but not to insure the liability of the Board of Control itself.

     There can be no doubt but that the Legislature    has the right, in its approp-
riations act to limit the use of funds therein appropriated    if such limitations
do not conflict with or amount to general legislation.     Conley v. Daughters of
the.Republic,   156 S. W. 197 (Tex. 1913); Moore v. Sheppard, 192 S. W. 2d 559
(Tex. 1946) and see Attorney General Opinion M-280.(1968).          We are of the
opinion, therefore,    that no funds appropriated in the Appropriations    Act for
1974 - 1975, may be used to purchase insurance under § 9 of Article 6252-19,
V. T. C. S. We have no knowledge of any other funds available to the Board
of Control out of which such insurance might be purchased.

                             SUMMARY

            The Board of Control may purchase liability insurance
        covering the liability of its officers and employees   arising
        out of the operation of power driven lawn mowers and edgers
        used in groundskeeping     on the Capitol Complex,  but may not
        use funds appropriated    for 1974 and 1975 to purchase insurance
        insuring its own liability under the Texas Tort Claims Act.

                                                    Very truly yours,




                                                           rney General   of Texas




                                              .




DAVID M. KENDALL,        Chairman’
Opinion Committee
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