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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