                  April 29, 1952

Hon. Darwin L. Wilder    Opinion No. V-1439
County Attorney
Denton County            Re:   Liability of a city and
Denton, Texas                  county for personal in-
                               juries s,ustainedby em-
                               ployees of their hospital
                               established and operated
                               under Article 44941, V.C.S.,
                               when Workmen's Compensa-
                               tion Insurance is not
Dear Sir:                      carried for them.
          The Board of Managers of the City-County
Hospital in Denton County created pursuant to Article
44941, V.C.S., is contemplating cancelling Workmen's
Compensation Insurance for its employees. You have
requested an opinion concerning the liability of the
city and county for damages in cases where an employee
of the hospital sustains personal injuries in the
course of his employment resulting in dis,abilityor
death, in the event the insurance is cancelled.
          Article 4494i, V.C.S., authorizes any county
of this State and any incorporated city,or town with-
in such co,untyto jointly establish, erect, equip,
maintain and operate a hospital or hospitals for
the care and treatment of the sick, infirm, and/or
inj,ured";provides for a Board of Managers for the
hospital composed of seven members, three to be ap-
pointed by the commissioners' court of such county,
three to be appointed by the governing board of such
city or town, and one,by s,uchcourt and governing
body acting jointly; and prescribes their tenure
of office and duties. Section 6 thereof provides:
          "The Commissioners Court of s.uchcounty
     and the governing body of such city or town
     may contrib,uteto the funds necessary for
     such hospital or hospitals in whatever pro-
     portion may be determined by them by agree-
     ment."
            A municipal corporation is a body politic
Hon., DBrwin L. Wilder, page 2   (V-1439)


and corporate, a public corporation and Political sub-
division of the State, even when incorporated under
the home rule amendmetitto the Constitution. 30'Tex.
Jur. 12-14, Municipal Corporations, Sets. 2, 3.
          Counties are bodies politic and corporate.
Art. 1572, V.C.S. They are political subdivisions
which are created by the sovereign will for the pur-
pose of discharging the State's duties toward Its ln-
habitants, and are'agencies or instrumentalities for
the administrationof matters which are of the State.
11 Tex. Jur. 52& Counties, Sec. 2.
          In Hodge v. Lower Colorado River Authority,
163 S.W.2d 855, 856~ (Tex. Civ. A   1942,'error dlsm.
upon agreed motion), the court s,"!d:
          "It seems now settled that a city is
     immune from liability for torts of Its agents
    *and employees when acting In a public or gov-
     ernmental capacity; but liable where such
     torts occur In the discharge of some function
     private or proprietary in character;
     It Is eauallv well settled. however. thai a
     county is a governmental agency and'as such
     is immune from liability for all torts, just
     as Is the State Itself unless such liability
     IS created by statuteoi . . .'Immunity'from
    ‘liability is therefore referable not onlv
     to thencharacter of the function performed,
     but also tb the character of the corporation
     itself, and the purposes for which It was
     created."                    ..
          In City of Wichita Falls v. Roblson 121
                              '.the court he1 that
Tex. 133. 46 S.W.2d ybb '(.1932)
the city-was not liable for personal inj,uriessus-
tained by an employee, while performing his duties,
caused by the negligent acts of its officers or agents
while discharging governmental functions of the city.
          It has long been the law of this State that
a county is not liable In damages for personal injuries
sustained by Its employees while In the performande of
their duties caused by the negligent or tortlous acts
 ~3':;-.
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         Hon. Darwin L. Wilder, page 3   b-i4391


         of its officers, agents, or servants, unless liability
         be created by statute, either in express terms or&
         necessary implication. Bryan v. Liberty County, 299
         S.W. 303 (Tex. Clv. App. 1927).
                   In City of Dallas v. Smith, 130 Tex. 225,
         107 S.W.2d 872 (1937).
                        . --.,. the court held that since the
         State has by numerous statutes given to cities power
         to make rules and regulations to protect public heal,th,
         to prevent spread of diseases, and to ~,doall acts nec-
         essary for promotion of health and the suppression of
         disease, Including the establishment and maintenance of
         hospitals, and, in the exercise of these powers, cities
         perform governmental functions as agencies of the Sta.te,
         they are not subject to be s'uedfor any act or omission
         occurring in the exercise of such'power, unless suit _...
                                                               is
         authorized by statute.
                   TineLegislature h&s not in Article 44$&i, or
         any other statute, ei.therin express terms or by nec-
         essary impiication, provided that when a cit;yand coun-
         ty jointly establish and maintain a hospital as provided
         therein, they shall be liable for damages for personal
         injuries sustained by their employees while in the per-
         formance of their duties in connection with such hos-
         pital caused by the negligent or tortious acts of t;heir
         officers, servants or employees, or required them ,to
         carry Workmen's Compensation Insurance for such em-
         ployees. It necessarily follows that they may not be
         held liable for such damages.




                             SUMMARY
                   An incorporated city and a county in
              jointly maintaining and operating a hospital
              under the provisions of Article'44941, V.C.S.,
Hon. Darwin L. Wilder, page 4   (V-1439)


     are not liable.fbr~damageaxfor personal
     injuries sustained by their employees,
     while in the performance of their duties
     in connection with such hospital, caused
     by the negligence of their officers,
     servants, or employees.
                           Yours very truly,
APPROVED:                    PRICE DANIEL
                           Attorney General
J. C. Davis, Jr.
County Affairs.,Dlvlsion
E. Jacobson
Reviewing Assistant          Bruce W. Bryant
                                   Assistant
Charles D. Mathews
First Assistant
BWB:mh
