                                The Attorney              General           of Texas
                                                     July 8, 1982
MARKWHITE
Attorney General

                               Bonorable George N. Rodriguez                   Opinion No. MU-490
Suprmne Court Building
                               El Paso county Attorney
P. 0. Box 12549
Aurlin. TX. 78711.254S         Room 201. City-County Building                  Re:    Authority of county to
512l47525Dl                    El Peso, Texas    79901                         purchase automobile    liability
Telex 9lW74.1387                                                               Insurance    on county     patrol
Telecopier 512/4759299                                                         vehicles

lW7 Hain St.. suite 14co       Dear Nr. Rodriguez:
Dallas. TX. 752914709
214l742-S944                          You have requested        an Attorney   General’s     Opinion   regarding
                               liability    insurance    for county owned vehicles.         The facts    are as
4524 Alberta Ave.. Suite 160
                               follows:    El Paso County has a population of less than 1,400,OOO.            The
El Paso. TX. 799052793         comissioners~court      elected to provide transportation       for its sheriffs
91Y533-3454                    and deputies,     as mandated by V.T.C.S..    article    6877-1. by furnishing
                               “adequate motor transportation      including all expenses Incidental       to...
                               upkeep and operation.”          The commissioners     court does not provide
1220 Dallas Ave.. Suite 292
Houston. TX. 771JOZ-S995
                               automobile    liability    insurance against   claims brought under article
z1-                            6252-19, section 3, V.T.C.S.

                                    You have esked specifically:
806 Bradway. Suite 312
Lubbock. TX. 79491.2479
909/747-5239
                                          Does the County Commissioners Court have the paver
                                          to   provide   for  liability  insurance  on motor
                                          vehicles   owned or leased by the county for use by
1309 N. Tenth. Suite B                    the sheriff   and his deputies as patroi vehicles?
McAlbn. TX. 79591.1685                    and
512mS24547

                                          Does the County Commissioners Court have the duty
2W Main Ptaza. Suite 4W                   to provide liability   insurance on motor vehicles
San Antonio, TX. 782D52797                owned or leased by the county for use by the
51212254191
                                          sheriff  and his deputies as patrol vehicles    in a
                                          county with a population     of less than 1,400,OOO
An Equal Opportunity/                     according to the most recent federal census?
Affirmative Action Employer
                                     The Texas Tort Claims Act.      article   6252-19.   section   3 states:

                                          Each unit of government in the state shall       be
                                          liable   for money damages for personal injuries or
                                          death when proximately caused by the negligence or
                                          wrongful    act  or omission   of   any officer  or
                                          employee acting within the scope of his employment




                                                                p.   1741
Honorable    George N. Rodriguez - Page 2          (k&490)




             or office   erieing from the operation           or use’ of    a
             motor-driven vehicle....

Section     9 of the act further     provides:

              [A]11 units of government are hereby expressly
              authorized      to purchase   policies  of  Insurance
              providing protection    for such unite of government.
              their    officers,   agents   and employees    against
              claims    brought   under the provisions     of    this
              Act....

Counties     are included     in the definition    of the phrase “unite         of
government” in section 2 (1).       Thus, in the Texas Tort Claims Act.‘the
legfslature     gave express authority    to counties    to purchase Insurance
to protect     against liability   for money damages for personal injury or
death directly      caused by the negligence    or wrongful acts or omissions
of any officer      or employee acting within the scope of office        arising
from the operation or use of a motor vehicle           (hereinafter  “liability
insurance”).       The answer to your first        ~queetion    is that county
commissioners courts do have the authority          to purchase the liability
insurance described above.

       In answer to your second question,             it is our opinion that the
cotmissioners       court does not have a duty to provide                        liability
insurance.      Ue base this opinion on the fact                that article        6701-h.
section    33, V.T.C.S.      (Safety Responsibility        Law), exempts the United
States;     Texas,-, and politieel       ~m~bdivisiuna dt79iLy           state from the
liability      insurance      required    in article        6701-h.      section     IA(a).
However, other leglelatlon          requires liability       insurance for the state
and for certain political          subdivisions.     By the enactment of article
2372h-9.     section    2(a), V.T.C.S.,      the legislature         required liability
insurance for sheriffs’ or constables’ motor vehicles                   in counties with
e population       of over 1.400.000.         Likewise.     article      999e. V.T.C.S.,
requires     the state and every incorporated             city and town to provide
liability     insurance for motor vehicles        used by peace officers           and fire
fighters.      The total effect       of the three statutes         is that the Safety
Responsibility       Law exempts the state and political            subdivisions     of the
state from the requirement of liability             insurance;       however, by virtue
of article        999e and article         2372h-9,     section       2(a).    the state,
 incorporated      tovns and cities,       and counties       of over 1,400,OOO are
required to have liability          insurance.

       It    has been argued that article      6877-1(a),   V.T.C.S..   requires
 counties     to purchase liability insurance.    That article   provides:

                  The County Commissioners Courts of this State
               are directed to supply and pay for transportation
               of sheriffs of their respective counties and their




                                            p.   1742
/

        .”



    .        ’   Honorable George N. Rodriguez    - Page 3    (Mw-490)




                           deputies  to and from points within    this Stete.
                           under one of the four (4) following Sections:

                                (a)  Such sheriffs  and their deputies shall be
                            furnished adequate motor transportation    including
                            all expense incidental   to the upkeep end operation
                            of such motor vehicles.

                       As stated earlier,  the El Paso commissioners court has elected      to
                 “furnish adequate motor transporation    including all expense Incidental
                 to the upkeep and operation       of such vehicles”     as its   method of
                 compliance with the mandate to supply transportation     to sheriffs.    The
                 question Is whether El Paso County has the duty to supply liability
                 insurance on its vehicles   as an expense incidental   to their operation.

                       It has been suggested     that   counties      are Included    in    the
                 exceptions given in article 999e, section l(a),      reproduced below:

                                The state and every incorporated    city or town
                            shall provide for insuring peace officers~and    fire
                            fighters  in its employ against liability    to third
                            persons arising out of the operation,    maintenance,
                            or use of any motor vehicle owned or leased by the
                            state, city or town.

                 A county has only those powers and duties        clearly   set forth in the
                 constitution  or statutes.     Mills County v. Lampasae County, 40 S.W.
                 403, 404 (Tex. 1897); Harrison County v. City of Marshali. 253 S.W.2d
                 67, 69 (Tex. Civ. App. - Fort Worth 1952, writ ref’d).           Counties are
                 not mentioned in article    999e.    No duty has been clearly       set forth.
                 In addition,  if the word “state”    included counties,    there would be no
                 need for the legislature    to require liability     insurance for counties
                 of over 1,400.OOO.     Therefore,   article  999e. section     l(a)    does not
                 impose a duty on counties.

                         Section    9 of the Texas Tort Claims Act, vhich provides         the
                  authority for the purchase of liability      insurance, is permissive only.
                  There is no statutory      or constitutional   requirement for the purchase
                  of liability     insurance except those cited earlier.     In the absence of
                  an express duty, it is our opinion that counties with a population        of
                  less than 1.400.000 have the authority,       but not the duty. to provide
                  liability    insurance.

                                                  SUMMARY

                                Counties    with  a population    of   less    than
                            1.400.000 have the authority,   but not the duty, to
                            purchase    Insurance  policies  to protect     against
                            liability    for the negligence  or wrongful acts or




                                                       p. 1743
 Honorable George N. Rodriguez     - Pegs 4 OR+490)




            omissions of any officer   or employee acting vithin
            the    scope    of  employment   *rising   from   the
            operation,   use, or malntenaace of a motor vehicle
            owned by the county.

                                             w




                                                 Attorney   Ganerel of Texas

 -JOANW. FAINTER, JR.
  First Assistant Attorney   General

  RICRARBE. GRAYIII
  Executive Assistent   Attorney   General

  Prepared by Pstricia Rinojosa
  Assistant Attorney General

  APPROVEB:
  OPINIONCOMMITTBE

   Susan L. Garrison, Chairman
   Rick Gilpin
   Patricia   Binojoea
.- Jim Ploellinger     .'
   Edna Ramon
   Bruce Youngblood




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