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                              THE      ATTORNES             GENERAL
                                           OF      TEiXAS
                                        AUSWIN. TExAn78711

                                           January 20, 1970


                    Honorable Charles Murphy            Opinion No. M-559
                    Director
                    Texas Aeronautics Commission       Re: Whether an airplane owned
                    204 W. 16th Street                     and operated by a State
                    Austin, Texas                          agency may be covered by
                                                           liability insurance pur-
                                                           chased under the provisions
                                                           of Article 6252-19, V.C.S.,
                                                           (Texas Tort Claims Act),
                                                           or Article 6252-19a, V.C.S.,
                                                           and related questions.
                    Dear Mr. Murphy:

                         You have requested the opinion of this office on the follow-
                    ing questions:

                              "1. May liability insurance be procured,by
                         the Texas Aeronautics Commission on an airplane
                         under either the provisions of the Texas Tort Claims
                         Act or H.B. 203 of the 61st Legislature? The airplane
                         is owned and operated by the Texas Aeronautics Com-
                         mission.

                              “2 . May liability insurance covering premises'
                         defects be procured by the Texas Aeronautics Com-
                         mission under either the provisions of the Texas
                         Tort Claims Act or Ii.B. 203 of the 61st Legislature?"

                         In answering your first question, we :would note that the Texas
                    Tort Claims Act, Article 6252-19, Vernon's Civil Statutes, gener-
                    ally authorizes a governmental unit to purchase liability insurance
                    to cover its operations. However, in Article V, Section 57, the
                    General Appropriation Bill forbids the expenditure of appropriated
                    funds for the purchase of liability insurance to cover tort claims




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            Honorable   Charles   Murphy, page 2 (M-559)


            which arise under the Tort Claims Act.  If funds are available
            for the purchase of such insurance, it can only be through the
            authority of H.B. 203, codified as Article 6252-19a. Vernon's
            Civil Statutes, which is quoted as follows:

                      "Section 1. The state departments who now own
                 and operate motor vehicles shall have the power and
                 authority to insure the officers and employees from
                 liability arising out of the use, operation, and
                 maintenance of automobiles, trucks, tractors and other
                 power equipment used or which may be used in the opera-
                 tion of such department. Such insurance shall be pro-
                 vided by the purchase of a policy or policies for
                 that purpose from some liability insurance company or
                 companies authorized to transact business in the State
                 of Texas. All liability insurance so purchased shall
                 be provided on a policy form or forms approved by
                 the State Board of Insurance as to form and by the
                 Attorney General as to liability.

                      "Section 2. In case said department elects not
                 to so insure its employees against liability as above
                 mentioned:

                      "An employee of the State of Texas, in addition
                                              .
                 to any compensation provided in the General Appropria-
                 tions Act, shall receive as compensation any sum of
                 money expended by such employee for automobile
                 liability insurance required of such employee by the
                 department, agency, commission, or other branch of the
                 state government for which such employee is employed."

            Although the term “motor vehicles" is not precisely defined in the
            above quoted statute, it is linked with specific equipment of the
            road-use type. Further, in Section 2 we note that the alternative
            T.&hod of insuring makes specific reference to "automobile lia-
            bility insurance". Moreover,  since aircraft insurance policies
            are contracts that differ completely from standard automobile
            insurance contracts, it is our view that the above quoted statute
            cannot be interpreted so as to include State-owned and operated
            aircraft within its authorization.




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                Honorable Charles Murphy, page 3 (M-559)


                       In specific answer to your question number one, you are
                advised that it is the opinion of this office that appropriated
                funds may not be used to purchase liability insurance 6n an
                aircraft under the Texas Tort Claims Act, Article,6252-19; An
                aircraft is not a "motor vehicle" within the terms of Article
                6252-19a, and personal liability insurance may not be purchased
                for employees operating such aircraft. We have.been advised that
                the Texas Aeronautics Commission owns.and oper+t+C’only,one .air-
                craft,   and no other means of transportation of.any kind:~ Under
                ouch circumstances the Commission would have no authority tp
                purchase personal liability .insurancefor any smpioyao,undem
                P. B. 203 (Article 6252-19a).

                      With regard to your mecond question, liability ins-e
                covering premises defects may be purchaeed under the authority
                of the Texas Tort Claims Act, providng that no presently appm-
                priatsd fundm are used. Article 62X2-19a, qw+od lupra, permita
                only the purchase of insurance to cover the personal liability
                of an employee incurred by his operation of a State-owned      .
                vehicle in the course and scope of his employment. Such muthori-
                mation does not extend to the purchame of.liability,inswwce
                covering  premises defects.

                                               S UMM~AR'Y

                               Presently appropriated funde may not be used
                          to purchase liability insurance to cover tort
                          claims which arise under Article 6252-19, V.C.E.,
                          the Texas Tort Claims Act.

                                An aircraft is not a "motor vehicle* within
                          the terms of Article 625249a, V.C.S., and per-
                          sonal liability insurance may not be purchased
                          for employees operating such aircraft.

                               A governmental agency may purchase liability
                          insurance covering premises defects under the



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Honorable Charles Murphy, page 4 (M-559)


          Texas Tort Claims Act, providing that no appro-
          priated funds are used. Article  6252-19a does
          not permit the purchase of premises defect
          insurance.

                                  truly yours,




Prepared by Malcolm L. Quick
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
Houghton Brownlee
Roger Tyler
Louis Neumann
Wardlow Lane

KRADE F. GRIFFIN
Staff Legal Assistant

NOLA WRITE
First Assistant




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