                      The Attorney General of Texas
                                         April 9, 1979
MARKWHITE
AttorneyGeneral


                  Honorable Gibson D. (Gibl Lewis           Opinion No. Mw-10
                  Chairman
                  House Committee on                       Re: Whether a regional transit
                    Intergovernmental Affairs              authority established under article
                  State Capitol                            lllSx, V.T.C.S., is covered by the
                  Austin, Texas                            Tort Claims Act
                  Dear Representative Lewis:
                        You have requested our opinion as to whether the Texas Tort Clalms
                  Act, article.625249, V.T.C.S., his applicable to a regional transit authority
                  created pursuant toarticle lll6x, V.T.C.S. The Tort Claims Act applies to
                  every “unit of government” in the state, section 3, but it is not applicable
                  “to any proprietary function of a municipality.” Section 16(a). You ask
                  whether a regional transit authority falls within the exception of section 16.
                  Since it is our view that a’reglonal transit authority does not exercise any
                  proprietary functicn, we need not address the question of whether it may be
                  deemed a “municipality” for purposes of article 6252-B.
                       It is clear that a regional transit authority created pursuant to article
                      defined as a “public body corporate and politic,” section 6(a), ls a “unit
                  lll6x,
                  of government” within the meaning of the Tort Claims Act. Section S(a) of
                  article lll6x provides that a duly created authority exercises
                             public and essential governmental functions, [and
                             has] all the powers necessary or convenient to carry
                             out and effectuate the purposes and provisions of this
                             Act, including, but not limited to, the following. . . :
                             ....
                             (e) . . . the power to acquire, construct, complete,
                             develcp, own, operate and maintain a [rapid transit]
                             system or systems within its boundaries . . .
                  (Emphasis added). Under the language of the statute, then, the operation of
                  a rapid transit system by an authority is described as a “governmental
                  function.”




                                                 p. 27
Honorable Gibson D. (Gib) Lewis    -   Page Two       (NW-101


      In City of Corsicana v. Wren, 317 B.W.2d 516 (Tex. 1956), the Supreme Court
considered a statute containing a legislative declaration that a municipality’s operation of
an airport is a governmental functicn. The court held that, so long as
           the legislative classification as governmental (or nongovernmental)
           CnMot    be called arbitrary or clearly at vah3nCe with ‘well
           established and well defined’ law on the subject, the classification
           ought to be respected by the courts.
317 S.W.2d at 520. We do not believe that the classification at issue here mav be so
labeled. & Imperial Production Corp. v. City of Sweetwater, 210 P.2d 917 (5th Ci;. lSS4);
Braun v. Trustees of Victoria Independent School District, ll4 S.W.2d 947, 950 (Tex. Clv.
App      Ban Antonio 1936, writ ref’d); Garaa v. Bdinburg Consolidated School District, 576
S.W:2d916 (Tex. Civ. App. - Corpus Christi 1979); Pontarelli Trust v. City of McAllen,
465 B.W.2d 604 (Tex. Civ. App. - Corpus Christi 1971,no writ). In our opinion, Wren
compels the conclusion that the legislature is authorized to classify the powers-
regional transit authority as exclusively governmental. As a result, it is our view that the
Tort Claims Act is applicable to a regional transit authority created pursuant to article
lll6x.
                                       SUMMARY
           The Texas Tort Claims Act, article 6252-19, V.T.C.B., is applicable
           to a regional transit authority created pursuant to article lll6x,
           V.T.C.S.




                                             MARK WHITE
                                             Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
C. Robert Heath, Chairman
David B. Brooks




                                            p.   28
Honorable Gibson D. (Gib) Lewis   -   Page Three   (Mw-10)


Rick Gilpin
William G Reid
Bruce Youngblood




                                          p. 29
