,




     Gerald C. Ham                    &xrrlN   11. TEsxAm
    aj~Pl%L
        *.=-Tom-    o-




           Hon. T. M. Trimble         OpinionNo. 0-33L6
           First Assistant State      He: Tort liabilityof schooldistrict--
           Superintendent             authorityto indemnifythird partiesfor
           Austin, Texas              actionssoundingin tort.

           Dear Sir:

                     We are in receiptof your letter of March 27, 19& In which
           you request the opinionof this departmentconcerningthe authorityof
           the Board of Trusteesof the Borger IndependentSchoolDistrictto exe-
           cute a lease or licensecontractcontainingthe followingprovisions:

                        "The lessee (SchoolDistrict)expresslyassumes
                   all liabilityfor injury or death to any studentsor
                   instructorsin attendanceat said school,whether
                   caused by the equipmentand material suppliedby J. M.
                   Huber Corporation,or the conditionof the premisesor
                   by any of the employeesof J. M. Huber CorporationVI-
                   by soy other cause, direct or indirect,resultingin
                   injury or death to any of said studentsor instructors.

                        *It is understoodthat the premisesleased are in
                   the carbonblack plant yard of J. M. Huber Corporation
                   and all of the hasardsto studentsand inetructorsusing
                   said premisesand passingthroughsaid plaut yard are
                   'expresslyassumedby the lessee.

                        "And the said lesseepromisesand covenantsto ih-
                   demnifyand hold haxmlessthe said J. H. Huber Corpora-
                   tion from any and all claimsfor damagesfor injuries
                   to personsand for deathand for damageto propertyads-'
                   ing out of or in connectionwith the operationof said ;
                   school on said premises.

                        "It is understoodand agreed that J. M. Huber Corpor-
                   ation is permittingthe use of its premisesand equipPent
                   & studentsand instructorswithout charge;and it makes
                   no representation as to the condition,quality,fitnessor.
                   safety of the praaiees,mterial, equi~ent, buildings or
                   structurer~and that lesseehereby assume full respousl-
                   bility and liabilityfor the 0ame.e
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Hon. T. H. Trimble (0-33b6)   page 2



           The occasionfor the contractgrows out of an arraugementwhereby
the schoolproposesto teach classesin veldingat the machine shop and yards
of the lessor. The above quoted provisionsappear as a part of the agreement
whereby the Companyproposesto grant its consentfor the we of its property
for such purposes.

           School districtsare public corporationsand governmentagencies
exercisinga governmentalfunction. They differfrom cities and towns in
that the latter exercisea dual function,to-wit,governmentaland proprietary,
while a school districtis purely a govermental agency and exercisesonly
such powers as are delegatedto it by the state. It perfonnsno proprietary
functionswhich are separateand independentof its governmentalpowers. In
this respectit is more readilycomparableto a county,which is not held an-
swerablefor its negligencein an action foundedin tort. Brown v. Trustees
of~~VictoriaIndependentSchoolDistrict,(T.C.A.1938, writ refused)1l.hS.W.
(2d) 9b7. The school districthas no liabilityfor actionssoundingin tort,
arisingout of the performanceof its governmentalfunction. Opinion6O-u3
and O-1405,copies of which are enclosedherewith;McVey v. City of Houston
(T.C.A.1925) 273 S~.W.313; Brown v. VictoriaIndependentSchool District,
supra; 24 R.C.L.g60, p. 601r;37 T.J. I lh8, p. 1030 and authoritiesthere
cited,particularlynotes in A.L.R.

           McQuillinin his work on MunicipalCorporations,2nd ed., Vo1.3,
sec. 1270, makes the statementthat a amnicipalcorporation"cannotassumea
liabilitywhere none legally exists.6 It is too well settledto requirecita-
tion of authoritythat a board of school trusteeshas limitedauthorityand
nay not bind the districtin excess of the authoritygrantedthem by statute
either expresslyor by necessaryimplication. It is our opinionthat the
trusteesof a school districtnay not subjecttheir school districtto lia-
bility in tort where such liabilitydoes not exist in law. The situation
would be analogousto an officeror agent of the State atteinptingto create
liabilityon the part of the State for action6founded ia tort, or a cuamis-
sioners'court contractingthat  the county shall be subjectto tort liabil-
ity. The lack of authorityin such izmtanceswculd semn to be fundamental.

           No cases directlyin point have cone to our attentionupon the ques-
tion of whethera schoolboard nay enter a contractwhereby the districtbe-
collies
      an indamitor of a third partyforhis own torts. It has been held how
ever that a sumlcipalcorporationmay not beccaae a guarantorin the absenceof
legislativeauthority. In Dillon,MunicipalCorporations,5th ed., Vol. II,
g 8111,it is stated:

            “A municipalcorporationcannot, withoutlegislative
      authority,becaae suretyfor another corporation or an indi-
      vidual;cannotguaranteethe bonds or obligation6of another,
      or make accommodation indorsernents.
                                         Such an authoritycan-
      not be iaplledor deductedfrom the generaland usual powers
      conferredupon such corporations. Although such a oorpora-
      tion may have power directlyto acoanplisha certainobjwt,
    I
        -.     .

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        Hon. T. H. Trimble,page 3         (0-33L6)



                   and itself expend its revenuesor money therefor,yet this
                   do66 not give or includethe power to lend it6 creditto
                   anotherwho may be empoweredto effect the same object.
                    &pending money by a city council,as agent6 or atiinistra-
                   tors of their constituents,is a very differentthing fraa
                   binding their constituentsby a contractof suretyship,. . .
                   'a contractwhich carrieswith it a lesion by its very M-
                   ture.' Thus the indorsementof the bonds of a streetrail-
                   road compaw in a city, by the city authorities,is not
                   within the ordinaryadministrative powers of the corporation,
                   and requiresexpresslegislativegrant.c

                   While there is a decideddistinctionbetweencontractsof surety-
         ship and indemnity,they are somewhatsimilar in naturewhen considering
         authorityfor their execution. Neithercan be said to be of the character
         ordinarilyor necessarilycontemplatedin the usual artninistration and
         managementof the governmentalfunctioncommittedto school districts. We
         find no expressauthorityin our statutesfor school districtsto become
         indemnitorsfor the torts of third parties. The well establishedrule by
         which trusteeshave only limitedauthorityto bind their districts,is par-
         ticularlyappli&le to obligationsof this nature and authorityto bind
         the districtin contractsof this nature cannot be inferredfrcanthe general
         grant of authorityin Article 2780, R.C.S.,192.5,to manage and controlthe
         affairsof the district.

                       It is also well settledthat a board of tmstees  is limited in
             its authorityto expend the funds of its districtand may not bind the dis-
             trict in excess of availablerevenuesfor the currentyear. The nature and
             extent of the obligationrecitedin the above quoted contractwould seem to
             be wholly incompatiblewith the policy and purpose of this limitation.

                       It is our opinionthat a board of trusteesof a school district
             does not~have authorityto bind the districtin the manuer set out in the
             above quoted agreement.

                                                     Yours very truly

             APPROVEDAF% 5, 19i41                    ATTORKKXGKKKRALOFTKKAS
             /s/ Gerald C. Mann
             ATTORNKY GENERAL OF TEKAS               By /a/ Cecil C. Caaauack
                                                     Cecil C. Camnsck,Assistant
             APPROVED:OPINIONCOMMITTEE
             BY:      BWB, CHAlRMhN

             CCC:db:wb

         O.K.
         GKL
