                               ATTORNEY            GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 May 27,2003



The Honorable Kevin Bailey                               Opinion No. GA-0076
Chair, Cornmittee on General Investigating
Texas House of Representatives                           Re: Whether a school district may voluntarily pay
P.O. Box 2910                                            the medical expenses and travel costs for a student
Austin, Texas 78768-2910                                 injured in school or during a school activity
                                                         (RQ-0007-GA)


Dear Representative     Bailey:

        Your predecessor as Chair of the House Committee on General Investigating asked whether
state law prohibits an independent school district from voluntarily paying for a student’s medical
expenses and travel costs related to an injury sustained by the student while in school or involved
in a school activity.’

        Background

         These questions arise in connection with the h-aan-Sheffield Independent School District’s
expenditures for treating an injury sustained by a high school student during the 2001-2002 school
year.2 See Request Letter, supra note 1, at 1. The request letter states that the student was injured
in a wood shop class when her hand was caught under a board on a sanding machine, badly injuring
two fingers. See id. She was stabilized at the local emergency room and sent to Midland for further
treatment. See id. The attending physician in Midland recommended transfer to a specialist in
Dallas, and the student and her mother were flown to Dallas at district expense. See id. Following
surgery, which restored the use of her injured fingers, the student had to return for follow-up
examinations and physical therapy. See id. The district provides an accident insurance policy for
all students and has not been billed for any medical expenses related to this incident, but it paid
transportation costs for the visits. See id. at 2. The school nurse accompanied the student on some
occasions because the parents had limited ability to speak English. See id. at 1.




          ‘Letter from the Honorable Pete P. Gallego, Chair, House Committee on General Investigating, Texas House
of Representatives,   to Honorable Greg Abbott, Texas Attorney General, at 1 (Dec. 4, 2002) (on tile with Opinion
Committee) [hereinafter Request Letter].

        2The Iraan-Sheffield Independent School District is located in Pecos County, Texas.   See Education,   Pecos
County, Texas, available at http://www.co.pecos.tx.us/ed.html.
The Honorable Kevin Bailey - Page 2                    (GA-0076)




         “While the Iraan-Sheffield Independent School District was under no legal obligation to pay
these costs, school trustees felt a moral obligation to assist a student in their jurisdiction and under
their care.” Id. at 2. In August 2002, the school trustees voted to discontinue paying further travel
expenses for the student out of concern for the legality of providing transportation and expenses for
students injured at school or school-related activities. See id. We are not asked to review the school
board’s expenditures in this matter but to address the following general questions about school
district expenditures on behalf of injured students:

                  Does state law prohibit an independent           school district from
                  voluntarily paying for medical expenses and travel costs related to an
                  injury suffered by a student while the student is in school or involved
                  in a school activity?

                  Does any such prohibition extend to a coach or trainer transporting a
                  student to and from surgery, follow-up visits, and physical therapy
                  related to an injury in an athletic activity?

                  Does any such prohibition extend to the provision of various related
                  services provided by the school district through campus clinics,
                  school nurses, and/or athletic trainers?

                  Do any of the acts described         above constitute a “gift” of taxpayer
                  funds prohibited by law?

Id.3 Our answers are limited to school districts               and do not apply to state agencies            or other
governmental entities.

II.      Leeal Backwound

        The school district is protected by sovereign immunity from liability for the student’s medical
costs and other damages resulting from the injury. Unless waived, sovereign immunity protects the
state and its subdivisions from both suit and liability for damages. See Tex. Dep ‘t of Tramp. v.
Jones, 8 S.W.3d 636,638 (Tex. 1999). The Texas Tort Claims Act, TEX. CIV. PRAC. &REM. CODE
ANN. ch. 101 (Vernon 1997 & Supp. 2003), provides for governmental liability in tort and waives
sovereign immunity to the extent stated in its provisions. See TEX. CIV. PRAC. & REM. CODE ANN.
$6 101.02 1, 101.025 (Vernon 1997). However, the Tort Claims Act does not waive sovereign
immunity for school districts “[elxcept as to motor vehicles.” Id. 9 10 1.05 1. Furthermore, school
teachers and other professional school district employees are not personally liable for an act within
the scope of the employee’s duties that involves the exercise ofjudgment or discretion, with narrow
exceptions. See TEX. EDUC. CODE ANN. 8 22.051,22.051(c)          (Vernon 1996); Downing v. Brown,



         31n answering the questions, we do not address a school district’s responsibility   to provide health-related
services to disabled students under the federal Individuals with Disabilities Education Act, 20 U.S.C. $8 1400-1461
(2000), or Texas Education Code, sections 29.001-.017.
The Honorable Kevin Bailey - Page 3                    (GA-0076)




935 S.W.2d 112 (Tex. 1996). Thus, with rare exceptions, neither a school district nor a teacher
would be liable for damages for an injury sustained by a student during a classroom activity.

         Article III, section 52(a) of the Texas Constitution provides that “the Legislature shall have
no power to authorize any county, city, town or other political corporation or subdivision of the State
to lend its credit or to grant public money or thing of value in aid of, or to any individual, association
or corporation.” TEX. CONST. art. III, 4 52(a); see also id. art. III, § 5 1 (legislature has no power to
authorize the making of any grant of public money to any individual). When a governmental entity
is not liable on a claim, the payment of that claim constitutes “a pure gift or donation” and violates
the constitution.     Tompkins v. Williams, 62 S.W.2d 70, 71 (Tex. Comm’n App. 1933, judgm’t
adopted); accord State v. City ofAustin, 33 1 S.W.2d 737,742 (Tex. 1960); see also Tex. Att’y Gen.
Op. No. GA-0062 (2003) at 2 (school district’s payment of non-prevailing party’s attorneys’ fees is
a gratuitous donation of public funds).

         The constitutional prohibition against donating public funds to private individuals does not
prevent governmental entities from using public funds to carry out their public purposes. See City
of Austin, 33 1 S.W.2d at 743. Despite a school district’s immunity from damages under the Tort
Claims Act, a school board may, under other authority, make reasonable provisions for an injured
student’s care. The legislature and the courts have long recognized a school district’s interest in
protecting and providing for the health and safety of students under their supervision. See Moseley
v. City of Dallas, 17 S.W.2d 36 (Tex. Comm’n. App. 1929, judgm’t adopted) (because physical
condition was relevant to a student’s ability to learn, school board could establish and maintain
a school health department to provide physical examinations to students); TEX. EDUC. CODE ANN.
89 21.002(a) (V emon 1996) (employment of school nurses), 33.085 (Vernon Supp. 2003) (purchase
of insurance policy to fund medical treatment for students injured at school), 33.086 (Vernon Supp.
2003) (head coach or chief sponsor for an extracurricular athletic activity, including cheerleading,
must be certified in first aid and cardiopulmonary resuscitation).

        School districts have also established school-based clinics or health centers where students
may receive primary health services.4 Legislation adopted in 1999 authorizes school districts to
provide health care services to students and their families through a school-based health center and
provides a grant program for qualifying centers. See TEX. EDUC. CODE ANN. $5 38.051-.064
(Vernon Supp. 2003)?

         Section 33.085 of the Education Code authorizes the board of trustees of a school district to
“obtain insurance against bodily injuries sustained by students while training for or engaging in
interschool athletic competition or while engaging in school-sponsored        activities on a school
campus.” Id. 8 33.085(a). This provision further states that



         4SeeT~~~F~~~~~~S~~~~~H~~~~~S~~VI~~~,RE~~~~~~~~~S~~TEB~~RD~~H~~~~~,                          “ExtendedSchool
Health Services,” (Apr. 1998) available at htt&/www.tdh.state.tx.us/schoolhealtWtf gb.htm(lastvisitedMay     14,2003).

        ‘See Act of May 26, 1999,76th Leg., R.S., ch. 1418, $ 1, 1999 Tex. Gen. Laws 4847,4847-49,      renumbered   by
Act of May 22, 2001,77th Leg., R.S., ch. 1420, 5 4.005,2001 Tex. Gen. Laws 4210,4218-21.
The Honorable Kevin Bailey - Page 4              (GA-0076)




                   (b) The amount of insurance to be obtained must be in keeping with
                 the financial condition of the school district and may not exceed the
                 amount that, in the opinion of the board of trustees, is reasonably
                 necessary to afford adequate medical treatment of injured students.

                   (c) The insurance authorized by this section must be obtained from
                 a reliable insurance company authorized to do business in this state
                 and must be on forms approved by the commissioner of insurance.

                   (d) The cost of the insurance is a legitimate part of the total cost of
                 operating the school district.

                    (e) The failure of any board of trustees to carry the insurance
                 authorized by this section may not be construed as placing any legal
                 liability on the school district or its officers, agents, or employees for
                 any injury that results.

Id. 0 33.085(b)-(e).

         This statute reflects the school district’s interest in restoring an injured student’s fitness to
attend school and to participate in athletic contests and other extracurricular activities, an interest
served by funding the student’s medical treatment. As adopted in 1959, the predecessor of section
33.085 related only to insurance for participation in athletics. See Act of Apr. 16, 1959’56th Leg.,
R.S., ch. 124’1959 Tex. Gen. Laws 215. A 2001 amendment to section 33.085, however, allowed
the school board to obtain insurance “not only against bodily injuries sustained by students engaged
in athletics, but also in other school-sponsored activities on a school campus.” HOUSE RESEARCH
ORGANIZATION,BILL ANALYSIS, Tex. H-B. 2301, 77th Leg., R.S. (2001). Section 33.085 applies
to classroom activities, as demonstrated by a bill analysis referring to the explosion of a high school
chemistry lab where several students were badly burned, including one whose parent had no
insurance. See id. Pursuant to this provision, a school district may purchase insurance to pay a
student’s medical costs for an injury sustained at school or while involved in a school activity.

         A school board may also pay transportation costs incidental to providing medical care to a
student. Education Code, section 45.105(c) authorizes a school district board of trustees to spend
local school funds for various purposes, including “other purposes necessary in the conduct of the
public schools determined by the board of trustees.” TEX. EDUC. CODE ANN. 8 45.105(c) (Vernon
Supp. 2003); seealsoid. 8 11.151(b)(V emon 1996) (school board authority to “govern and oversee
the management of the public schools of the district”).         School boards have wide latitude to
determine what expenditures are “necessary” for public schools and thus within the spending
authority of Education Code, section 45.105(c), and its predecessor, former Education Code, section
20.48. See, e.g., City of Garland v. Garland Indep. Sch. Dist., 468 S.W.2d 110, 1 1 l- 12 (Tex. Civ.
App.-Dallas 197 1, writ ref d n.r.e.) (trustees could determine whether expenditure for paving streets
abutting school property was “necessary in the conduct of the public schools”); Tex. Att’y Gen. Op.
Nos. JC-0165 (2000) at 10 (trustees could determine that expenditure for “early exit” retirement plan
The Honorable Kevin Bailey - Page 5             (GA-0076)




was necessary); JM-1265 (1990) at 4 (trustees might find college scholarships to be “necessary in
the conduct of the public schools”); H-l 33 (1973) at 5, 7 (trustees could determine that trustees’
travel and legal expenses were “necessary”); C-601 (1966) at 3-4 (trustees have discretion to
determine whether expending surplus money from operation of school cafeteria to provide lunches
to needy pupils is “necessary cost in the efficient conduct of its public schools”). A school board
may pay travel costs ancillary to providing medical care for an injured student if it deterrnines, in the
exercise of reasonable discretion, that these expenditures are necessary in the conduct of the public
schools. The district’s determination is subject to judicial review. See Tex. Att’y Gen. Op. Nos.
JC-0165 (2000) at 11; H-133 (1973) at 4.

III.    Specific Questions

        We address the specific questions.

        A.      Question One

                 We are first asked whether state law prohibits a school district from voluntarily
paying medical expenses and travel costs related to an injury sustained by a student while in school
or involved in a school activity. As stated above, Texas statutes do not prohibit a school district from
voluntarily paying medical expenses and travel costs for students injured at school or in a school-
related activity. Section 33.085 expressly authorizes a school board to purchase insurance. The
school board may pay reasonable travel expenses related to treating student injuries sustained at
school or during a school activity, if the board determines that the expenditure is necessary in the
conduct of the public schools.

        B.      Question Two

                  The next question is whether a coach or trainer may transport a student to and from
surgery, follow-up visits, and physical therapy related to an athletic injury. The request letter states
that school districts routinely furnish transportation in these cases. See Request Letter, supra note
1, at 2. A school district may authorize coaches and trainers to provide such transportation as a job
responsibility if the board determines that this activity promotes an objective of the school district
and that it is appropriate to a coach or trainer’s job description. A coach or trainer may also provide
transportation on his or’her own time without using school district resources. The school board and
the coach or trainer should be aware of other applicable statutes. For example, school districts are
subject to the Tort Claims Act “as to motor vehicles.” Id. Statutes or board rules requiring parental
consent may also apply. Seegenerally Tex. Att’y Gen. Op. No. DM-378 (1996) at 2-3 & n.4 (issues
relating to transportation of public school students in privately-owned vehicles operated by parents
and teachers).

        c.      Question Three

                We are next asked whether state law prohibits a district from providing various
related services through campus clinics, school nurses, and/or athletic trainers. We answer this
The Honorable Kevin Bailey - Page 6             (GA-0076)




question generally, because the related services required in connection with a student’s injury will
depend on the nature of the injury. The board of trustees may provide “related services” to injured
students if it determines that these services are necessary in the conduct of the public schools. Other
statutes are relevant to providing services through school nurses and athletic trainers. Licensed
health professionals may provide professional services only within the terms of the practitioner’s act.
See, e.g., TEX. OCC. CODE ANN. chs. 301 (Vernon 2003) (Nursing Practice Act), 451 (athletic
trainers); see also TEX. EDUC. CODE ANN. fj 21.003(b) (V emon 1996) (school district may not
employ a person as an audiologist, physician, nurse, school psychologist,              or certain other
professionals unless the person holds the applicable state license). Questions about the health care
services that a campus clinic or school-based health center provides to students must be addressed
to the specific clinic or school-based health center.

        D.      Question Four

                 We are finally asked whether a school district’s voluntary provision of such services
constitutes a “gift” of taxpayer funds prohibited by law, a question relevant to the expenditures
discussed in the first three questions.     Under Texas Constitution, article III, section 52(a), the
legislature may not authorize a political corporation, including a school district, to grant public
money or anything of value to an individual. See TEX. CONST. art. III, 4 52(a); see also id. art. III,
8 51 (legislature has no power to authorize the grant of public money to any individual).           This
constitutional provision prevents the gratuitous grant of public funds for private purposes. See Byrd
v. City of Dallas, 6 S.W.2d 738,740 (Tex. Comm’n App. 1928, judgm’t adopted); Tex. Att’y Gen.
Op. No. GA-0062 (2003). An expenditure of public funds for a public purpose is not, however, an
unconstitutional grant of public funds. See Tex. Mun. League Intergovernmental Risk Pool v. Tex.
Workers ’Comp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002); Edgewood Indep. Sch. Dist. v. Meno,
9 17 S. W.2d 7 17,740 (Tex. 1995). An expenditure to accomplish a public purpose is constitutional
even though it incidentally benefits a private interest. See Byrd, 6 S. W .2d at 740; Graves v. MoraZes,
923 S.W.2d 754, 757 (Tex. App.-Austin 1996, writ denied).

         A school board may pay for its students’ medical expenses, incidental travel, and other
incidental services related to an injury sustained at school only if the expenditure accomplishes a
public purpose. The Texas Supreme Court has stated the following three-part test to determine if
a statute accomplishes a public purpose:

               [T]he Legislature must: (1) ensure that the statute’s predominant
               purpose is to accomplish a public purpose, not to benefit private
               parties; (2) retain public control over the funds to ensure that the
               public purpose is accomplished and to protect the public’s investment;
               and (3) ensure that the political subdivision receives a return benefit.

Tex. Mun. League Intergovernmental Risk Pool, 74 S.W.3d at 384. This test also applies to political
subdivisions exercising delegated legislative powers. See Tex. Att’y Gen. Op. Nos. JC-02 12 (2000)
at 3-4; JC-0113(1999) at 2; DM-256 (1993) at 2-3.
The Honorable   Kevin Bailey - Page 7           (GA-0076)




         The school district’s payment for student medical expenses related to an injury sustained
while in school or involved in a school activity will not constitute a gift of public mnds prohibited
by article III, section 52 if the school board (1) determines that the expenditure’s predominant
purpose is to accomplish a public purpose, not to benefit private parties, (2) retains sufficient control
over the expenditure to ensure that the public purpose is accomplished, and (3) ensures that the
school district receives a return benefit. When the school board applies this test to its expenditures
for ancillary services, such as transportation to physical therapy sessions, it must consider whether
these primarily benefit the school district or the individual. The school district must place sufficient
controls on the expenditure to ensure that its public purpose is accomplished. Contractual terms may
provide sufficient control of some expenditures. See Key v. Comm ‘rs Ct. of Marion County, 727,
S.W.2d 667,669 (Tex. App.-Texarkana          1987, no writ). Controls such as application requirements
and limits on travel expenditures may be established by the board’s exercise of rule-making power.
See TEX. EDUC. CODE ANN. 5 11.15 1(d) (Vernon 1996). The return benefit received by the school
district need not be monetary, but instead may be accomplishing the school district’s public purpose.
Whether a particular school board action complies with the constitution raises fact questions that
cannot be addressed in an attorney general opinion. See Tex. Att’y Gen. Op. Nos. GA-0061 (2003)
at 9; GA-0003 (2002) at 1 n.2; M-l 87 (1968) at 3.
The Honorable Kevin Bailey - Page 8           (GA-0076)




                                       SUMMARY

                        Section 33.085 of the Education Code authorizes a school
               district to purchase an insurance policy to cover a student’s medical
               expenses for bodily injuries sustained in connection with interschool
               athletics or while engaging in school-sponsored activities on campus.
               A school district may pay medical costs and incidental travel costs for
               a student injured at school or in connection with a school activity if
               the school board determines that the expenditure is necessary in the
               conduct of the public schools.

                        The district’s payment of travel costs will not constitute an
               unconstitutional   gift of public funds to an individual if the school
               board (1) determines that the expenditure’s predominant purpose is
               to accomplish a public purpose, not to benefit private parties, (2)
               retains sufficient control over the expenditure to ensure that the
               public purpose is accomplished, and (3) ensures that the school
               district receives a return benefit.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
