                            September 17, 1969


Dr. J. W. Edgar                         Opinion No. M-475
Commissioner of Education
Texas Education Agency                  Re: Questions concerning
Austin, Texas 78711                         the applicability of
                                            the Tort Claims Act
                                            (Acts 61st Leg., R.S.
                                            1969, Ch. 292, p. S74),
                                            to school districts.
Dear Dr. Edgar:

     You have requested the opinion of this office regarding
certain questions involving the Tort Claims Act, codified as
Article 6252-19, Vernon's Civil Statutes. These questions are
paraphrased for convenience as follows:

     1.   In Section 19A. applicable to school districts,
          does the term "motor vehicles* include "motor
          driven equipment" other than school busses7

     2.    (a) Where under Section 9 a school district pur-
          chases liability insurance to cover paid employees
          for torts committed in the scope of their district
          employment, is the employee thereby protected from
          the imposition of further judgment for'damages?

          (b) Where under Section 9 a school district  does
          not purchase liability insurance to cover its school
          bus drivers and requires as a condition of employment
          that the bus driver shall purchase liability in-
          surance , may the district pay the premium thereon
          from its local maintenance funds7




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Dr.   J.    W. Edgar,   paw   2   (U-475)


              (c) In situations referred to in (a)      and (b)
              above, is the bus driver’s bond     prescribed  in
              Article 2687a also required?

       3.     (a) May the premium for liability insurance
              legally be paid out of the transportation fund,
              if any, of the school district? Stated another
              way, does the Tort Claims Act contemplate that
              such premiums shall be paid out of local district
              maintenance funds as distinguished from the Dia-
              trict Transportation Fund or County Transportation
              Fund (Article 2922-15, Sec. 2) as the case may be,
              whose limited allocation source is from State
              appropriations?

              (b) Where under Section 2(l) of Article 2922-15,
              the county school board (not the school district)
              maintains and operates a county unit school bus
              system, is such county operating authority.authorised
              to purchase such liability insurance7 If yes, who
              pays the premiums and from what funds?

     In connection with your first question, the following is
quoted from the Tort Claims Act:

               “Sec. 3.  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 or office
           arisinc from the operation or use of a motor-driven
           vehicle and motor-drive equipment, ..."

               "Sec. 19A. The provisions of this Act shall not
           apply to school districts except as to motor vehicles."
           (Emphasis supplied.)

      You have indicated concern over the proper interpretation
'of the limitation of liability granted to school districts by
Section 19A, aupra. You indicate that some school districts




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Dr. J. W. Edgar, page 3 (M-475)


are of.the opinion that liability extends only to school bus
operations, while others are of the opinion liability extends
to the operation of loaned or owned driver education cars,
riding lawnmowers, tractors used in vocational agriculture
courses, and other motor +iven equipment.

     Section 19A clearly limits the liabi,lityof school districts
to acts of negligence involving,motor vehicles. For the purpose
of regulating vehicles in this State the Legislature has made the
following definitions in Article 6675a-l,.Vernon's Civil Statutes:

          "(a)'Vehicle' means every device in, or by which
      any person or property is,or may be transported or
      drawn upon a public highway, except devices moved only
      by human power or used exclusively upon stationary
      rails or tracks.

          "(b)'Motor vehicle' means every vehicle, as herein
      defined, that is self-propelled."

       In answer to your specific question, you are advised that
the  term "motor vehicles" extends beyond school busses, and
includes at least all vehicles that may fall within the definition
given in Article 6675a-1, supra, but does.not include "motor
driven   equifient" unless such equipment constitutes a "vehicle".
                         .
      Your question Number 2(a) is restated for clarity:

          Where under Section 9 a school district purchases
      liability insurance to cover paid employees for torts
      committed in the scope of their district employment, is
      the employee thereby protected from the ,impoaitionof
      further judgment for damages?"

       In answer thereto,   you are advised that it is the view of
this office that’the     presence of liability insurance has no
baaring   upon the matter of the imposition of damages against a
governmental   employee. The only limitation on employees’
liability provided by the Tort Claims Act is set forth in Section
12(a), to-wit*
Dr. J. W. Edgar, page 4 (W-475)


         'The judgment or settlement in an action or
     claim under this Act shall constitute a complete
     bar to any action by the claimant, by reason of
     the same subject matter;againat the employee of a
     unit of government whose act or omission gave rise to
     the claim."

     Your question Number 2(b) is restated:

         'Where under Section 9 a school district does not
     purchase liability insurance to cover its school bus
     drivers and requires as a condition of employment that
     the bus driver ahall purchase liability'insurance, may
     the district pay the premium thereon fro_ its local
     maintenance funds?"

      In the event a school district determines that liability
insurance should be purchased, we would point out that such
 insurance stiouldprovide coverage in the manner set forth in
Section 9 of the Tort Claims Act, i.e., "...for such units of
government, their officers, agents and employees against claims
brought under the provisions of this Act, ...* We would also
observe that a general liability policy, such as would be
written for an individual, provides coverage for a broader
 liability than ia.impoaed in the Tort Claims Act.  We find no
 authority in law-to 'wrmit a achool,district to pay for an
 individual employee's liability insurance premium,under the
 circumstances related. In the absence of such authority, you
 are advised that the district may not pay the insurance
.premiuma from its local maintenance funds when it does not pur-
 chase liability insurance to cover its school bus drivers.

     Your question Number 2(c) is restated:

         "In situations referred to in (a) and (b) above,
     is the bus driver's bond prescribed in Article 26S7a
     also required?"

     Article 2687a, Vernon’s Civil Statutes, is quoted in part
as follower




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Dr. J. W. Edgar, Page 5 (M-475)

        *a
          ...The drivers of all school tranaportation
    vehicles shall be required to give bond for such
    amount as the Board of Trustees of the district may
    prescribe, not leas than $2,000.00, payable to the
    district, and conditioned unon the faithful and
    careful  diacharce of their duties for the Protection
    of the nupila under their charqe and faithful ver-
    formanci of the contract with School Board: ...'I
    (Emphasis aup~lied.)

    Section 20 of the Tort Claims Act reads as followat

        "All laws or parts of Saw, and all enactments,
    rules and regulations or any and all units of
    gwernment, and all organic laws of such units
    of government, in conflict herewith are hereby
    repealed, annulled and voided, to the extent of
    such conflict."

     In view of the fact that the terms of the bond required by
Article 2687a, aupra, cwer aifuationa beyond the scope of the
Tort Claims Act, you are advised that it is the opinion of this
office that the said Article  2687a is not in conflict with the
Tort Claims Act and is not repealed thereby. The requirement
of a bond of not leas than $2.000.00 for school bus drivers
remains in full force and effect.

     Your question Number 3(a) .ia restated:

         "May the premium for liability insurance legally
     be paid out of the transportation fund, if any, of the
     school district?' Stated another way, does the Tort
     Claims Act contemplate that such premiums shall be paid
     out of local district maintenance funds as distinguiahed
     from the District Transportation Fund or County Trana-
     portation'Fund (Article 2922-15, Sec. 2) as the case may
     be, whose limited allocation source is from State appropria-
     tions?"




                             -2371-
Dr.   J.   W. Edgar,   page 6 (M-475)


       Your question Number 3(b)    is restated:

           "Where under Section Z(1) of Article 2922-15, the
       county school board (not'the school district) maintains
       and operates a county unit school bus system, is such
       county operating authority authorized to purchase such
       liability insurance? if yea, who pays the premium and
       frpm what funds?"     _

     In making a reply to these questions, we must first note
that there is no requirement that liability insurance be pur-
chased under the Tort Claims Act.  That statute simply authorizes
the purchase of such insurance at the discretion of.the govern-
mental unit. The statute is silent as to any method of financing
insurance premiums. Since such expenditures are authorized, but
not required, we are of the view that they should be considered
as general operating expenses of the governmental unit, and
payable out of any fund available for those purposes. With re-
gard to the District or County Transportation Fund, governed by
Article 2922-15, Vernon's Civil Statutes, we note that Section 2(b)
thereof makes a base allowable for the coats of maintenance, opera-
tion, salaries, depreciation, etc., for the conduct of a school
bus system. Since the cost of liability insurance would be part
of the coat of the operation of such a system, it follows that
the District or County Transportation Fund,could properly be
used for the proporfionate share of the total premium that
represents school bus operation. *

                                 SUMMARY

                  Section 19A of the Tort Claims Act (Article
              6252-19, V.C.S.) limits school district tort
              liability to acts of negligence involving motor
              vehicles. A "motor vehicle" at least includes
              any,vehicle coming within the definition set
              forth in Article 6675a-1, V.C.S.

                  The presence of liabilitv insurance has no
              bearing upon the matter of the imposition of damages
              against a governmental employee. In the event of




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Dr. J. w. Edgar, page 7 (M-475)


         a damage suit against a governmental agency. the
         judgment or settlement in such suit constitutes
         a complete bar to any recovery against the
         individual employee involved in the incident.
         Section 12(a), Tort Claims Act.

             If a school district purchases liability in-
         surance, the policy should be written in the t:rma
         of the statute.

             The Tort Claims Act does not operate to repeal
         Article 2607a, V.C.S., and the bond required of a
         school bus driver by the said Article 2607a is
         still required.

             If it is determined that.liability insurance
         should be purchased, the premiums therefor may
         properly be paid out of the District or County
         Transportation Fund (Article 2922-15, V.C.S.), as
         an Operating expense of school bus service.

                                    Yours9 ery truly,




                                             General of Texas

Prepared by Malcolm L. Quick
Aaaiatant Attorney General

APPROVED:
Opinion Committee

Kerns Taylor, Chairman
George Kelton, Vice-Chairman

Jack Sparks
Alfred Walker
Earold Kennedy
Roland Allen

 -E    P. GRIFFIN
 Statf Lsgal Assistant


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Dr.   J. W. Edgar, page 8 (M-475)



IiawTxo~   PHILLIPS
Executive Assistant

NOLR WHITE
First Assistant
