Honorable W.K. McClaln
Criminal District Attorney
Georgetown, Texas
Dear Sir:                    Opinion No. 0-1418
                             Re:   Can an independentschool dletrlct
                                   take out,.aninsurancepolicy cover-
                                   .lngbodily Injury and bua damage
                                   in .connectlon.wlth Its operation
                                   of echool busses for the tranepor-
                                   tatlon of'chlldren? Where euch a
                                   policy has been taken out may an
                                   injured etudent recover upon euch
                                   a policy?
      We are in reaeipt of~yourletter of September.l,1939, where-
In you eeek.our opinionon theefollowing queetlone:
      "In view of the fact that a school dlatrlct 1s not
    liable for personal Injury from a school bus accident,
    le a school board mleusln tax money to take out per-
    sonal Injury insurance? Such ae representedby the
    enclosed policy.)
      "In ca8e of'accident can the 1njured:partyrecover
    on.the contrackln view of:-:therlder,attachedto the
    insurance policy enclosed herewith?"
      The policy which you enclose obligates the Insurance company
to "pay on behalf of the insured all sUma which the Insured ahall
become obligated to pay by.reaeon of the llablllty imposed upon him
by law" for.damagea to:person or property-throughthe operation of
school bussee. Uniform RZder No. 101, which is attached to.the
POllCY, contains, among other
                          ,, things, the following provisions:
      "It i&agreed  that~'%nthe event of alalm.arlslng
    -under:aoveragee;~of..bod11yg.njury~llablllty
                                               and ,prop-
    erty damage~~~llablllty~afforded
                                   under.3hls po1lCy; the
    c~rnpany~will*~.not
                     lnt&poee~the.defense that the-in-
    aured isengaged ;inthe,performanceof a~governmental
    ~ctlon;~"except.;Int~tho~se
                              casea"cohere.ltB'
                                              action will
   ~lnvolve,the.lneuredin a poeeible loss~not-~wlthln the
    protection of thla Insurance."
Honorable W.K. McClaln, Page 2                           O-1418



        Subsection (2) of Paragraph II provides that the Insurance
company shall defend In the name of the Insured and on his behalf
any suit alleging injury or destructionand seeking damages which
are covered by the policy. Under "Special Cond&tlons",the policy
provides that "no action shall lie agalnst the ompany unless, as
a condition precedent thereto, the Insured shall have fully com-
plied with all the conditionshereof, nor until the amount of the
Insured'sobligation to pay shall have been finally determined
either by judgment against the Insured after actual trial or by
written   agreement of the Insured, the claimant, and the company..."
      Article 2687a, Vernon's Annotated   Texas Statutes, reads In
part as follows:
       "The trustees of any school district, common or
    independent,making provision for the transportation
   of pupils to and from    sohool, ehall for such purpose
    employ or contract with a responsibleperson or firm
    ..,..... The drivers of all school transportation
    vehicles shall be required   to give bond for euoh a-
   mount as the board of trustees of the district may
      rescrlbe, not less than two thousand dollars
   Ii&   000) , payable to the district, and conditioned
   upo; the faithful and caritil dleoharge of their
   duties for the proteotlon of pupils under their
   charge and faithful performance of the oontract with
    said school board, . . ,I’
      Another Artlole whloh should be oonstrued In connectlon with
the qu$stlon presented in your letter is Artlole 2827, Vernon's
Annotated Texas Statute, which provides that local funds of inde-
pendent school districts may be expended "for the payment of lnsur-
ante premiums". We are unable to find any other statute which
might be oonstrued as authorlelng a school board to take out and
pay for such an Insurancepollay as Is described In your letter.
      Yo&flrst question therefore may be divided into two parts,
as follows, to-wit: (1) 'Does said Article 2827 provide express
authority for the expenditure of local school funds In payment of
Insurancepremiums on the type of policy described in your letter?
(2) If not, is such authority implied from the express statutory.
authority to operate school busses?
      In a letter opinion to Mr. W.E. James, First Assistant State
Superlntendentof Public Instruction,under date of September 16,
1936, this department held that there was neither expressed nor
Implied authority to expend public school funds for this purpose.
In another letter opinion by this department addressed to the same
person, under date of August 17, 1936, It was pointed out that the
provlslon In the statutes requiring a bond of bus drivers for the
faithful performance of thelr duties provided an adequate mean8 for
Honorable W. K. M&lain,   Page 3                         o-1418


compensatingsuch school children for damages resulting from ln-
juries through the negligent operation of such busses, and such
means was exclusive, and that,It cannot be assumed that there is
sn Implied power to provlde against such contingenciesIn a dlf-
ferent manner. A careful study of the questlone presented leads
us to the same concluelon.
      It Is now well settled that a school district Is not liable
for the torte of Its agents or employees which are committed In
the performance of a governmental function. The operation of a
school bus for the transportationof pup118 to and from school is,
In our opinion, a governmentalfunction. It Is apparent, there-
fore, that the protection  afforded under the policy enclosed In
your letter Is not for the direct benefit of the school dlstrlct
but Inures to the benefit of three classes of people, to-wit: (1)
The driver, whose llablllty for damages resulting from his negll-
gence In the operation of the bus Is protected by the policy. (2)
The school children who rlde.on the bus. (3) Any other person
who may reoeive an injury to his person or damage to his property
through negligent operation of the bus.
       It is our opinion that Insurancepolicies for whloh premiums
are authorized to be paid by Article 2827 out of looal school
funds are such pollalee as protect the district Itself, from
pecuniary liability or loss. Ordinarily it Is {he purpose of lnsur-
ante polloles to protect the insured from liability orloee and not
to provide a means of compensatingthe third parties for lnjurles
which they may receive at the hands of the Insured. We cannot be-
lleve'that the Legislature Intended that the funds of the school
districts should be expended to pay Insurance premiums for the
protection of third parties against damages for which the school
district itself could not be held liable. In our opinion the
authority so to expend public funds 1s not found in said Article
2827, nor do we believe it to be Implied from the power to operate
school busses and employ school bus drivers found in Article
2687a.   Implied powbrs are founded upon reasonable necessity.
Such necessity springs from the fact that the expressed powers
cannot be fully executed or enjoyed unless supplementedby such
implied powers. In this case the district receives the full
benefit of the expressed statutory authority to operate school
busses without the nzcesslty of taking out this type of insurance.
      Doubtless the Legislature could authorize school dlstrlcte
to expend local school funds for Insurance premiums to protect its
school children against Injury, and Its employees against both
llablllty and Injury, from the operation oflts school busses. We
do not believe that the Legislature has as yet exercised its
authority to confer upon school districts this authority.
      We Bpe unable to agree with the Tennessee Supreme Court In
the cases of Marion County vs. Cantrell, 61 S.W. (2d) 477, and
.




    Honorable W.K. McClaln, Page 4                      o-1418


    Rogers vs. Butler, 92 S.W. (26) 415, wherein the court h~oldsthat
    under a similar statute authorizingschool districts to require a
    bond of bus drivers, the district may elect to take out a public
    llablllty and property damage Insurance policy In lieu thereof.
    The driver of a school bus owes to the children wh,omhe transports
    the highest degree of care consistentwith the practical operation
    of the bus. Phllllps vs. Hardgrove, 296 Pac. 559; Sheffield vs.
    Lovering, 180 S.E. 523. The drivers' duty extends beyond the
    actual operation of the school bus to such matters as seeing that
    children alighting from the bus do not walk Into the path of an-
    other and oncoming motor vehicle. Robinson vs. Draper, 106 S.W.
    (2d) 825, 127 S.W. (2d) 181 (comm. App.). The statutory bond re-
    quired of bus drivers doubtless covers broader llabllltles and
    duties of the driver than are covered by the policy which you en-
    close In your letter. On the other hand, the policy doubtless
    covers llabilltlesof the bus driver to third parties which would
    not be covered by the statutory bond. Such a policy, therefore,
    Is not a proper substitute for the required bond, and the school
    trustees should in every case, requlre bus drivers to furnish
    adequate bonds.
         For the reasons stated, we answer your first question in the
    affirmative. It, therefore, becomes unnecessary to answer your
    second question.
         We enclose the insurancepolicy herein.
                                     Yours very truly
                                     ATTORNEY GENERAL OF TEXAS

                                     By s/Victor W. Bouldln
                                          Victor W. Bouldln
                                          Assistant
    VWB:FG:wc

    APPROVED SEP 25, 1939
    a/ W.F. Moore
    FIRST ASSISTANT
    AT'l!OFU?EY
             GENERAL
    Approved Opinion Committee Q   e/t3WBChairman
