                                   AUSTIN   11. TJSXAS
PRICE  DANIEL
ATTORNEYGENERAL
                                 June 28,    1948


       Hon. Wallace T D Barber              opinton NO. v-619
       County Attorney
       Hays CountJr                         Re: Authority OP rural
       San Marcos, Texas                        high school district
                                                to secure WorkmenQs
                                                CompensationInsur-
                                                anoe on workmen
                                                erecting school bulld-
                                                ing*
       Dear Sir:
                       We quote from your request for      on   opinion 8s
       follows:

                       “A rural hQh  school district in
                  Hays County, Texa5, voted and issued sohool
                  house building bonds for the constructionof
                  new buildings and remodeling of existing
                  buildings6 Instead of letting 8 contract
                  for this work, the school board has hired
                  their own foreman and workmen. The school
                  board now proposea to take out UoPkmen~s Com-
                  pensation and pay for the same from either
                  the bond money OP else fpom regular school
                  funds~0 The question fs whether or not it is
                  proper for the school board to pay for the
                  predurs to be due on the woHcmmDacompO
                  from either the bond money or else from reg-
                  ~18~ s,ehooltinda+”
                       Art.   2922k,    V. C. S,, provides:
                        “All rural high schools within 8 rural
                  high school district herein provided SOP
                  ah811  be under the immediatecontrol of the
                  t~g;,;f school trustees for such Pural high
                          , and such boord,of school trustees
                  shall be under the,,@ontrol 8nd SupePvisfon
                  of &he county superfotetident and-,
                                                    eount;lboard
                  of school,,,trustees,and ahall be sub e(9t,to
                  the:same provisions of law and PestPiBtfons
                  thrt,common sohool districts are now subject
                  to, except where otherwise provided herein.’
Hon. Wallace T, Barbm, Pago 2, v-619


          Artio1e 2749, v. c. s., provides th8t the
tPuatees shall have the 88n8geUUt aad eontPo1 of the
public schools and publio scheol gr0und6, and Article
2752, V, C, 50, 8tltkOPfteEthb tPU8tb.5 Of 8 aehool
dlstrlct to OOtltP8etfop the ePbetfon of the bufld-
ings snd auperfntendthe constmmtfon of the e8me0
           art. 2827, V. C, SO, provfdes, In wt,       8s
foLlows:
          "The public fmo school tiads shall not
     be expended exoept POP thb followfng purposers
     Q 0 0 0
           “2, L0081 school fu~@s ~POIRdisfP"iot
     tams, tuition fees of pupils not entitled to
     rrbb tuition am4 other lea81 boulwba may be
     ured rOP the puPpo$MI euumerbted rOP gt8te 8Ud
     county runtlrsnd POP pur8hbrfQg rpplfanees 8d
     supplies>
     0 0 0 0la.
          We bolfeve y'ou~queatfon     fs aentmllod by
the reaeoning 8nd oonolusfonPeaeked la Ophioa 810.
0-1418 of the Attornef    Oeaeril  of %?exas,approved Bsp-
tember 25,/1939. The question there oonspderodwas
Whether 8 school dimtpiot, whlah is not Ifable     for pep-
SORO1 it~juPJrPO8 6 #IS&@01buS 8O&fdOnt, h8e 8UthOPfty
to expand fts publfe funds Co gur@hDileliabflfty or
pOPSOn in,jau?y  fIWPbt3C0,   rOP th@ bQQ&ft Or PI&h
and third pa??tfee~ That queetfon was eonsidsred f~or
the St8UdpOfntof"whothee AHfele 2827, V. 6, S,,abovo
quoted; provided f?Xp!Pbml  8uthoPftf POP such 8n oxpen-
ditum; lnd, ff not, wh%theP ,ths8uthoPfty tight be
implied Boa the exp~eas statutory authorfty to operate
school buraa, It vat!thepd, hold that sines thope could
be no lfabflfty on the pmt ofpV&I dfrstPfatOP fts
agents and employees fn tho porfommee of the govepn-
mental f'unetfonor opepatfng Q scshoolbus, ,suehexpen-
dituPe W8S not authoPfSedby APt. 2827. It W8S held
that the 18tteP  A,Ftfcleauthorfeed p8YIm8nt Of p~e8fu~ar
only r0P tiuehfasuPbnoe85 pPote&wI the ammt,
ftre$f, fPa8 ~OUUf8Py     lose QP lf8bflfty. It w8s 8180
held thbt there ex%st& no implfe,af    power fn that eon-
nootfon rfnee themi ~81 no neeersity r02 auah expendi-
tree ao rap am the school listPfat.Wae~onee~aed,
           The   epeatfon   of                      a school
                                 sahoolbufldfngr '%sj
Hon. Wallaoe T. Barber, Page 3, v-619


district,washeld in an oplnlon of the Attorney Cen-
era1 dated June 8, 1937, Book 376,,psge 733, ad-
dressed to ,CovernorJames'V. Allred, to be a govern-
mental funutfon and the district could not be sub-
jected to pecuniary loss or llabllltyby.reason of
injuries sustainedby persons In connectionwith
the erection of such buildings. Therefore, the au-
thority in Article 2827 to pay insurance premiums
doer not lnulude authority to pay for such lnsur-
anoe. lo other,authorityis found ,forsuch an ex-
penditure.
          In Opinion No, O-5315n approved May 22, '..
1943, the Attorney General held that thenCounty Com-
mlsaioner8~ Court OS a county did not have poWbP to
procure workmen's compensation insuranceon opera-
tors of road maintenance equipment,following the
rule stated in Texas Jurisprudence,Vol. 45, p- 455,
Sec. 69, that the Texas Workmen*8 CompensationLaw
"does not apply to atatea, counties or olties in
their performanceof governmentalfunotions." It
was there noted that under Article,III, Section 59,
of the'Tda5 Conatibutlon,the Legislaturewas em-
powered to !'provldb workmi!n~~s
                               tiO%pensationlnsur-
anae ior uu(rhstate ~employeea,is ,lnl~t.ts
                                          judgment
is neorssary or required";but that such benef'lts
had not been extended to oountles. ,One of the rea*
sow assigned in that opinion was the laok of express
statutory authority,  equally applioablo to your quea-
tion. The Legislaturehaa not extended such benefits
to sehool districts.
          There are oadd holding that a clt , though
not aubjeOt'tothe Workmen18 Compensation  -?d 9 =wa
nevertheless,Insure-itsemployees against bodily ln-
WY.     See MoCaleb v. ContinentalCaaaaltg Co.,~l32
Tex.~65, ,116 S, W, (28) 679:'CrertAmerloan Indemnity
Co, v. Blakey, 107 3. W. (2d)'1002 (Court of Cfrll
Appeala, San Antonio) on raotlon~
                                ior rehearing, p* 1006;
and, Southern Calrualty Co, v@ Morgan, 299 S;W. 476,
affirmed, Commission of AppQalr, X? '%,W, (26) 200,
Aone of these oases deal with the souroe ai'authority
to the city to make the oxpendlture. They merely ea-
tabllsh two aollateral p~lnclpl8s~lat, the faut that
eltles are notefnaludedwithin the provlrlona of the
Wor.kaen'sCompensationLaw will not preclude them from
entering Into a contract Pnsurlng their employees On
the samb.brslraa employees are insured under the
Ron. Wallace T. Barber, Page 4, v-619


Workmenls CompensationLawg and, 2nds having entered
into such a contract the insurer Is estopped to assert
the lack of authority on the part of the city to make
such a contract as a defense to a suit by an employee
injured thereafter. Th6 question of the authority of
the cities to effect expendituresfor such insurance
was left open. The authority to expend public funds
for such Insuranceby a olty depends upon the construc-
tion and applicationo? its chapter and the statutes
applicable thereto, whereas the authority of school
districts and strictly state agencies to make expendi-
tuzresmust be found in applicable general statutes
governing their expenditures.
           We express no opinion a8 to the liability
of'an lnsuranaecompany to an employee of any school
distriot which took but much InsuPanoe,notwithstanding
its want of authority. This fob t&s Serson,that the
cases cited say that the insu~mea conponies are ea-
topped to raise the question of the power to contract.
McCaleb v. ContinentalCasualty Co,, supra,
          You are respeotf'ullyadvised that such ex-
penditure is not, la otm opiaion,,authorired.


          A rural high school district is not
     authorized to expend money in payment of
     premiuma for workmen"a compensationinsur-
     anoe payable to its employees fop personal
     injuriesreceived while engaged in the eon-
     struction of a school building,
                      Very truly yours
                   A!PTORflSq
                           ffBl$l$ OJ TXM_


N&/rt
APPROVED;
  ,
                         iames 'Ti!%-yafl
                         Assistant
