      OFFICE OF THE ATTORNEY         GENERAL   OF TEXAS
                            AUSTIN




Mr. D. W. Stakes, Cashier
Texas Prison System
Huntsville, Texss
Dear Mr. Stakes:




     We acknowled



                                 lier   has remed   t0 pas8
                                 amount of the premium to
                                ardor that this office
                                hoald not be approved by
                                 a specifio appropriation
                            f this olalm Is one that may
               6gd'Er   psylaentout of the current appro-



         \off$d/eon February 14, 1939, in Opinion No. O-201,
held that thB State Board of Bealth was unauthorized to in-
sure State property in its possession against loss by fire
unless a specifio a$propriation had been made for that pur-
pose. That opinion was bottomed upon the proposition that
the Le&slature had in Senate Conaarrent Resolution  No. ?I,
passed at the Second Called SassIon of the 37th Legislaturei
declared it to "be the fixed,palley ot this State to oarry its
omn Insurance upon State buildings and aeptsmts, and that no
):I-.
    D. W. Stakes, Page #2.


insurance policies ehall be taken out upon ony of the
public buildings and oontents thereof ...*
     Oplnion Ro. O-842, dated May 25, 1939, holds that
the Commissioner of Agrioulture has.no authority, in the
absence of a speoifio appropriation for suoh purpose, to
,paythe Premium on a fire or casualty insuranoe polioy
Issued on certain livestook owned by the State.
     An available apeoifio appropriation to pay the pre-
mium on any kind of a polloy Issued in favor of the State
would amonnt to a subeoquent deolaratlon of polioy by the
Legislature and would, to that extent, repeal the polloy
announced by the Resolution above referred to.
     In the instant ease, there is a speolflo appropria-
tion made to the Teraa Prison Syatsm for the purpose of
paying “liability lnsuranoe premlums.W It, therefore,
neoessarily follows that if the polloy on which the premium
Is sought to be paid from said appropriation is solely a
oolioy of that ohtwaoter, your queatlon may be answered
in the affirmative.
     For the purpose of this opinion, the matarlal provi-
sions of the polioy aret                          .-

    The Rartford Steam Boiler Inspeotlon and Insuranoe
    compao~ of Hartford, cozmeotiout ...
         *In oonsidemtlon or $2.172.30 premium doe6
    hereby agree with Texas Prison Board and/or Texaa
    Prison System and/or Its Eleoted or Appointed Of-
    rloem, whoae la6reaa la Fiuntrville,Texas, Cm-
    peoting loss (3koiuaing 10~1 of the kind dsroribsa
    in Seotion II, and Inoludlng lees of the kind dea-
    orlbea in Seotlon Iv) from an aooldent as herein
    deflnad to an objeot desorlbed herein, occurring
    during the polioy period which la from May 23, 1939
    to Ray 23, 1942, at 12 o’olook noon, standard time,
    as to eaoh of said dates, at the plaoe where such
    accident oooura, aubjeot to a Limit per Aooident
    of Fifty Thousand Dollars ($50,000.00), ae follows:
    “SECTION I   To PAY the Assured for loss on the
,




    Mr. D. %'.Stakes, Fage lf3.


                    Property of the Ar:?ureddlrcctly damaged
                    by such accident (or, if the Company so
                    elects, to repair or replace suoh dar-la,.ed
                    property), excluding (a) lots from fire
                    (or fron the use of water or other msaos
                    to extinguish fire), (b) loss from an sccl-
                    dent oaused by fire, (0) loaa from delay
                    or Interruption of business    or .mnufacturing
                    or process, (d) loss from laok of power,
                    light, heat, steam or refrigeration,    and
                    (e) loss from any Indirect result     of an
                    aooldenti
                     ...
      "SECTION m    TO PAY, ,to the extent of any Indemnity re-
                    malnlng hfter payment of all loss as may be
                    required under SeotlonrrI and II, suoh amowits
                    ss the Assured shall become obligated to
                    pay by reason of the llabllity of the Assured
                    for loss on the property  of others dlreatly
                    damaged by suoh aocldent, Including llablllty
                    for loss of use of suoh damaged property of
                    others; to DEFEND the Aasurea agalnat any
                    olaim or suit alleging suoh damage unless or
                    until the Company shall eleot to effect settle-
                    ment thereofi
      "SECTION IV   To PAY, to the axtent of any Indemnity re-
                    maining after payment of all loss as may
                    be required under Seotlons I, II and III,
                    If loss under Section IV la stated lbova
                    as lnoluaad but not otherwise, suah amounts
                    as the Assured shall beoome obligated to
                    pay by reason of the lIablllty of the*
                    Assured, Inoludlng llablllty ror loss of
                    servloes, on aooount of bodily Injuries
                    (lnoludlng death at any tima reaultlng there-
                    from) sustained by any person and caused by
                    euoh aooldent, except that ths lndemnlty
                    heraunder shall in no event apply to any
                    liability or obligation under any workmen's
                    oompensatlon law; to PAY, if loss under
                    Section 17 la stated above am Included but
                    not otherrime, lrreapeotlve of the &imft
                    per Aooident,    for luoh immediate aurglcal
                    relief  as shall   be rendered at the time Of
                    the aocldent; to DEFEND the Assured, lr loss
                    under %&Ion      TV ie eteted above as included
.r
..,,I-. D.   I?.   Stakes, w!w   #4.



                         but not otherwise, against any olalm or
                         suit alleging auoh lieblllty unless or un-
                         til the Company shall eleot to effeot
                         settlement thereof; and
         “SECTION V      To PAY, lrreapeotive of the Limit per
                        Aooldent, all oosts taxed against the
                        Assured in any legal prooaedlng defended
                        by the Company in aooordanoe with Seotlon
                        111 or IV, all interest aoorulag after
                        entry OS judgment rendered in oonueotfcn
                        therewith up to the date of paymant by the
                        Company of its share of such judgment,
                                                             or ap-
                        all preaulumoharges on ltta o h m e nt
                        peal bonds’required In auoh legal prooaed-
                        Ings, an4 all expenaea Inourred by the
                        Company for auah defenae~ ...((
     Sohedulea Nos. 1 and $2,attaohed to the polioy and made a
part thereof, deaorlba reapeotlvely the steam and gas engines
as the *objeotsw insured. On the baok of aaoh aohedule la
printed the saisedeflnltlon of “objaota an4 *aooIdent.m The
deflnltlon of aooldent la:
              *As reapeota any objeot aeaorlbad In this
        schedula , ‘Aocidant9 shall maa a sudden and aocl-
        dental breaking, defoxmIag, burning out or rupturltw
        of the objaot or any part theraor, whlah manifests
        ltaelf at the time of Its ooourranoa b# hadiately
        preventing continued operation or by Iamedlataly
        impairing the tunotiona or tha objeot and whIoh
        neoaaaitatea rapalr or raplaoamant baiojpa ‘its opera-
        tion oan be raaumed or Its funotlona roatorad, but
        the breaking,   deforming, burning or rupturing of any
        gasket or gland paoklng ahall not oonstltuta an
        aocldent, nor shall tha depletion of m8tSrIal   in any
        part of tha objaot, due to pitting, oorroalon or
        wear;be   oonatrued  as an lOdident.*

        Under SaotIon 1, the Company obligates ftaelf "To pay the
Asnured for loaa on the property of the Assured direotly
        byd a uo hlooldent (or, if the Coa~panyao aleota, to
da ma g e
rapalr or replaoe luoh damaged property),*   lxoludlng loss
by fire and othar named eroeptlona.
         Seotlon 11 has been exoludad from the policy.
or.    D.   W. Stakes,   Page #5.



     Seotion III oblI.qstesthe Company to pay "such amount8 as
the Assured shall baoome obligated to pay by reason of tha
lIabIlIty of the Assured ror lose on property of others
dlreotly damaged by euoh aooldent, InoludIng 1IabIlIty rOr
loss of u8e of auoh damaged property or others," and to
defend the assured In event of a cult agalnet him ror euoh
damages.
     Seotion IV obligates the Company to pay "euoh amount8
a.~ the Assured shall become ob,llgatedto pay by reason of
the liability of the A88ured, Including llablllty for lose
or 88~-~ioe8,on aooount of bodily injurlae (lnoluding death
at any time resulting therefrom) eustalned by any person
and oauaed by auoh aooldent,* exaept llablllty or obllga-
tion under any Workmen's ColPpaneatIonlaw, and to pay
surgloal reller rendered at time of accident and to defend
against any olalms or ault, ato.
     Seotlon V obligates the COmpany to pay all coats taxed
against the Assured in any legal prooeeding defended by the
Company In acoordanoe with Seotlone III or IV, sto.
        In COOhy’8  Briei     on the Law 0r   Insuranoe   (2nd Ed.),
page    325, It 18 saidr

             There are three 01a68e8 Of liability
        inauranoe -- insuranoe againat llablllty for
        psraonal Injury to amployes, againat liability
        for injurlsa to pareons other than amployes, and
        against llablllty for injurlaa to all olaeaar Or
        ~r8Olt8.”

        Again, on page 11, the author eaysr
             "80 far ae lnsuranoe has been daveloped
        wlth refsrenoe to aooldental injury to, Or
        destruotlon or property, a8 by explosion Oi
        bOIler8, breakage of gl888, and Injury generally
        by aooldent 8uOh aa injury to an automobile
        due to ooll&on,   lnoludlng injury to, and slok-
        no88 and death of animal8 Is known as 088Ualty
        inauranoe.*
       It IS said in lbriployar*s
                                Liability Aesuranoe OorporatIon
V8. Merrill, 155 Lbass.404, 29 N. E. 529, that aooldent
insuranoe   IS oonfined to aooldenta reeultlng In Injury t0,
or death or, human beinga. It8 ridd 18 not to ineure
Mr.   D.    W. Stakes, Page #a.



againet loe8 or damage to property, though oocasloned by acof-
dent."

           "*Casaalty Ineuranoe' are words of quite
          freqU8nt~843, yet it oamot   be said that their
      deiinftion ha8 been very aocurately eettled by
      the courts.      Strlotly and literally *casualty*
      18 perhapr to be limited to inJurIes whloh arise
      solely from aooidsnt wIthout any element of eon-
      SOiOUS human design Or Intentional human agency;
      Or, 88 it 18 8~eth8        eXpre86ed,   ineVit8bl8
      acoldent, somethbg      not to be foresean or guarded
      agalmt.      But in ordfnary uaage 'ea8ualty,' like
      *aooIdant,* is quits oommonly applied to 108808
      and inlarlaa rhloh happen suddenly, an8xpeotsdly,
      not in the u8ual oour8e of eve&e, and without de-
      dgn on part or the psreon surfsring rrcnu the
      Injury." Bankera' Wtnal Ca8nalty Co. vs. Plrat
      National Bank or Council Bluris, 108 N.W. 1040,
      Wl Iowa 456.
     Oenaral Casualty companies may be lnOOrpOr8tid under
the provisiona of Artlole 4989, Raflsed Statutes, and may
Include in their articles of lnoorpcuatlon any'one or all
of the eleven purpoasrranrrmsratedin 8ald Artiola, a8 well
as other8 if authorized by Saotlon 12 thereof. Seotlon 2
reads:
           nfo lnaure against loss or damage msult-
      lng fraa looldant to or Injury auetalned by
      an saploye or other person for whioh aooident or
      injury tha aaaamd 18 liable.*
     Under this Seotlon the ocapany may write lnauranoe
against llablllty for personal InJmy aq8talned by an am-
aloye mmltlng   from aooldant, soomonly known as *employ-
8r*8 llablllty lnsuranoe.a  It may al80 insure againat
liability ror InJuries to persona other than employee
resulting frocll
               aoolUent for whloh the assured ia liable.
      Seotion 8 provIde8r
           To lneiuroagainst 1088 or damagaa resdt-
      lng from aooldont to or injury aulisred by any
      person rot wbloh 1088 and dapuge the Inrrured
      18 llabl88 sxoeptlng smployerriliablllty insor-
      anc8 a8 authorized ander Subdivision 2 of this
      htiOi8.”
.   .




        !.:r.
            D. X. Stakes, Page #7.


             Under this Seotlon the oompany may write the sent) kind
        of in8UranOe provided for in Section 2, except employer's
        lIabIlIty Inauranoe. The Inauranoa written under sections
        2 and 8 may be properly oalled "lIabllIty Insuranoe.*
             Seotlon 5 reads:
                  "To insure against 1088 from injury to
             person or property which reerults8OCident8lly
             from steam boilers, elevators, eleotrioal derioes,
             engines and all maohlnery and applI#anoe8 USed
             in oonneotion themwlth or operated thsreby;
             and to lnsum boilers, elevators, eleotrloal
             devloe8, en&m,    mschlnery and applianoee."
             The polloy under oonslderation, while written by a
        foreign 0011pany,evidently with a permit to do bU8In888
        in this State, is one oorerizg both injury to property and/
        to any person sustained a8 a result.ot an ecoldent. It
        embraoea both oasualty and llabIllty olau8e8, suoh as may
        be written under Seotlon 6, quoted above.
             It 18 apparent that the ln8nranoe for which the Coa-
        peny has oontmoted to pay loss on the assumd*s property
        ~iI~~~~eoooa8iOn8d by aooldsnt 18 oasudlty, not lIablllty
                    Themrom,   the premium on said polloy oannot
        be legall; paid out of an appropriation to pay Wllablllty
        In8uranoe.* The Leglslatnre la presumed to have known
        the dliferenoe between the two ends  of insurance and
        the obamotar of rI8k8 belonging to each.
             While ue hate dsoided that the olalm for the pre-
        mium on this polloy oannot be paid out of the approprla-
        tioa reterred to, aad that the 8ame wa8 properly refused
        by the Caiptrollsr, ue will dlsou8s th8 ohamoter of the
        insurance smbrao8d in Seotloaa S, 4, and 6.
             If it be oonoeded that the ObligatIoa afi8umedby
        the company la said Seotion8 may be olassed as "lIabIllty
        insuranoe," then auoh obllgetione are ab8OlUtely ralus-
        less to the aseured tor maooa8 which we wIl1 aow oon8ider.
             In the first plaos, the aotual  beneflolary 18 not the
        wTexaa Prison Board and/or Texas Prison System and/or It.8
        Eleoted or Appointed Oiiloerr,a  but the State Of Texas.
        It is the State's property that la desorlbed ln the policy
        end it would be It8 property that would be damaged Or
):I-.
    D. W. St8k88,   Page #8.



destroyed In the event of an aooldent. The olalm ror
the premium is againet the State's funde. The State
of Terse should have been named In the polloy ao tha
"A88UCad." The ioregolag statement, of oouree, appllea
to the polloy as a whole.
     Under Seotioaa 3 and 4, the Company is only obligated
to pay to tha A68urad (whloh wa mutit aseums is the Stats
Of Texam) auoh amounts 66 the A88Ured shall beoome obll-
cats4 to pay by reason oi its lIabllIty for 1086 on the
property or Others, or ror parson61 injUrh8   to Other8,
eto. The 6rrtt0t or this agmwneat   IS that if thera Is
no llabIllty oa the part or the State, there la aona
on the part oi the Oampany. Tha Ompaay Is only obllgat-
ed to pay to the State or to thO86 who suffer loss under
tha teams oi the oontraot auoh auras as the State shall
b8 obligated to pay by reason of its llablllty to auoh third
rmr8oaa.
     It la now the astabliahad~law or this State that
tha Stat6 la aot liable for the torte or nagllgenoa oi
Its OrriOerB,-agents or 68nanta engaged in the periormsnoa
or a gotenuseatal fiaotlon uhlaaa it has rirst axpra8aly
886tUUed auah llabIlIty. Brook v. State, 58 6. W. (2d)
534, error reruaad; Gothsr v. State at al, 106 8. W. (Zd)
1104, and the authorities there oltad. Suoh liability,
the State has navar assumed.  Brooks 'I.State, aupr8.
It has provided Uorbaen*a Caapomatlon Iaauranoe ior oer-
tala olanaae oi tha Highway Dspartmaat*a employaa, (Art.
66746 et 88q., Vornoa'a Texas Btatutsa, 193S Supp.) rhloh
statutes hare no lpplloatloa here.
          The emotion aad operation 0r prlaona
     and jalla, whathar by tha Stats, a oounty or
     a munlolpallty, is purely a governmental runo-
     tlon, being an lndlapaaaabla part of the admin-
     iatratlon or the orlmlnal law." Corbatt v.
     St. Vlnoant*a Industrial Sohool.,177 N. Y. 16,
     68 N. E. 997; 21 R.C.L. 1168.

     It la also a wall established ale of law that in tha
abaaaoa ol a statute, a state la not liable to a oonviot
ror InjurIea luatalaad by him as a result of the neuli-
genoe 0r a prison employe, whether the oonviot is working
OUt8i.46or Ins148 the place Of iJRprI8o!Iment.clodrelter
t!r.   D. W.   Stnkes,   Fage #O.


VB. State, 80 N. C. 51, 41 Am. Rep. 440; Lewis '1.
State, 96 N. Y. '71,41 Am. Rep. 607; 21 R. C. L. 1182.
     Should an "aooIdentR oocur to the "object8R ineumd,
resulting la loss or property to others, in lnjurlea to
ooavIota, 8mploye6, and to other persons, what la the
State's llablllty?
     wAooldentm is an event whloh ha8 happened wlthout
a party.8 romelght or foreknowledge or without "fault-
ai the person who is ohargad.     It is a oatastropha
tiloh has oooumd wlthout wnegligenoe" oa the Part of
either party. SO Tex. hr.     693, Sec. 20.   In the case
of Dallas RaIlray & TermIn     Co. '18.Allen, 43 6. 1. (2d)
165, 170, error dbm.issed, the oourt aaid:
            -By looldent 18 meant auoh an unaXpaOt8d
       oatastrophe as oooura without any aas* being
       to blema ror it; that la, without anybody's
       being guilty of.aegllgeaoe in doing or per-.
       mlttlng to be done or amittlng to do the
       particular thing that 04N8ed auah aaaualty.w
     The   rule or non~llablllty ror parson81 injuries
reoelved   or damages to property auetained as result Of
aoaldent   is utnounoed by the OoawileaionOf Appeal in
the case   of Eberaole ~8. Sapp, 206 9. W. 156, to be:

            "33 the injury reaultl%g rrom the aot could
       have been reasonably antlolpated or foreeesa
       by an ordinary prudent Parson, la the axeralaa
       of ordluary oam, the oaaurmnoe la aot aaol-
       dental. It, however, the injury oould not have
       been romeseen or aatlalpeted, it Is an aooldant
       ror whloh them 18 no legal redm88.”
     When an acoldent oooura resulting in lnjnry to Pro-
perty or person there la ao legal lIabIlIty oa the part
Or any one, hanoa no legal redress. Therefore, it nabmal-
ly rollae that the Stats would not be liable ior dasrage
done to propsrty owned by another, or for pereonal lnjur-
lea sustained by its employee oonvlota, or any other
person as a reeult 0r aa aaooldent;w whether auah aooldent
wa8 unavoidabla or due to negligence. Thererote, under
all seCtIons, exoept No. 1, of tha policy, II the state
u,-.3. T. St8ke8, Page #lo.



IS not   80 liable, the Company 18 not liable. The proteatlon
rhloh the polloy  attempt8 to give the State is no protection
whatever.  Should  the State pey the prcmlum, It would pay
for only a 8UppO8ed protection, aomethlng It does not get,
does not need, and already h88 beOaU88 Of it8 sovereignty.
State v. Bnmnan et ux, 111 9. W. (24) 347, error   refueed.

     You are advieed that It Is OUT opinion thet the premium
on the polloy Under aonaIderatIoa nraynot be legally paid
from the atxrrentappropriation made to the Texas Prlaoa
system to pay alIabIllty insurance pr8mIum8.W

                                  Yours very truly
