Hon. Geo. H. Sheppard

Comptrollerof Public Accts. Austin, Texas Opinion No. V-722
Re: Authority of A. &'M. College of Texas to pay premiums for liability insuranceon its airplane.
Dear Sir:
We refer to your recent letter from which we quote : "I am attachinghereto Voucher No. 60, DepartmentNo. 842, Agricultural and MechanicalCollege of Texas to FranksVincent InsuranceService covering~badily injury liabilityand.,property. damage liability under HartfordAccidentdcIndemnityCompany Aircraft Liability 80. HA3-2134 premium for $106.59, togetherwith a letter addressed to this departmentOctober 23, 1948 from the auditor of A & M College. "1 shall thank you to advise this department whether we may legally issue warrant in payment of this claim."
In submitting its voucher No. A-235 to the Comptrollerof Public Accounts for issuance of warrant thereon, the Auditor of A. & M. College attachedhis letter, which reads, in part:

"This claim is submittedunder authority contained in House Bill No. 2.46, passed by the 50th Legislature Regular Session, being the fifth paragraph of Section 4, which reads as follows: 'Any maintenance or support items listed in the Main College, or any of its branches or services shall be construedto include labor, supplies,equipment, travel, repairs,workmen's compensation payments, insuranceand bond premiums,and contingentexpense.*Hon. Geo. H. Sheppard,page 2 (V-722).

"AttorneyGenerals 0 inions O-184 O-201 O-S42 O-1100 O-E762 and O-2150 relative to ihe mat& of insuranceare referred to in Opinion O-4315 which quotes from Opinion O-1100 as follows:
n*An available specific appropriation to pay the premium on any kind of a policy issued in favor of the State would amount to a subsequentdeclarationof policy by the Legislatureand would, to that extent, repeal the policy announcedby the Resolution above referred to.' (SenateConcurrent ResolutionNo. 3, passed by the Second Called Session of the 37th Legislature).n
Senate ConcurrentResolutionHo. 3; passed in. the Second Called Session, 37th Legislature, Acts 1921, reads, in part:

uResolved,by the Senate of the State of Texas, the House of Representativesconcurring therein, That hereafter it shall be and is the fixed policy of this State that the State shall carry its own insuranceupon State buildings and contents,and that no insurancepolicies shall be taken out upon any of the public buildings of this State, nor upon the contents thereof, and the State Board of Control and all other Boards having charge of buildings of the State, and the contentsof such buildings, are hereby instructednot to have such buildings nor property insured, notwithstanding there may be items in the appropriation bills authorisingthe expenditureof money for the payment of insurancepremiums

. . . "Provided,

however, that this resolution, or any part of its provisions shall not apply to or affect the Universityof Texas, and its branches, and that it is the fixed policy of the State that all buildings and the contents thereof belonging to.the Universityof Texas, and its branches, shall be kept insured at all times against any loss by fire or tornadoes." Section 13 of Article VII, Constitutionof Texas,Hon. Geo. H. Sheppard,page 3 (V-722)

provides: "The Agricultura.1 and Mechanical College of Texas
. . i is hereby made, and constituted

a Branch of the UniversityofTexas, for,the instructionIn Agriculture, the MechanicalArts, and the Natural Sciences connectedtherewith

. . .e The authority of the Board of Directorsof A. & M. College to purchase airplanes and to acquire an airport and equipment therefor is recognized in Attorney General?8Opinion No. V-07 citing Articles 2608, 2615~. and 2613, Section 6, V. C. S.
A careful search of the State laws and resolutions subsequentto,the passage of S.C.R. No. 3, Acts 1921, herein quoted, will reveal no change of legislative,policy

with respect to the insuranceagainst loss by fire and tornadoe~a of the public buildings and property therein referred,to. We are apprised of no statute or resolutionwhich authorizes,expressly or by implication, the Directors of the A. & M. College to use its public funds to pay property liability or casualty liabilitypremiums on insurancepolicies purportingto cover such liabilities.
It is well establishedlaw in Texas, that the State is not liable for the torts or negligence8of its officers,agents or servants engaged in the performance of a governmentalfunction unless it has first expressly assumed such liability. See Attorney GeneraltsOpinion No. O-1100 and authoritiesstated therein; State v. Morgan, 170 S.W. (2d) 652. The questionarises whether the State has assumed such liabilitywhen it enacted that part of Section 4 of H.B. 246. 50th Legislature, Acts 1947, at page 665, appertainingto A. & W. College, which reads:

UAny maintenanceor support items listed in the Main College, or any of its branches, or services shall be construedto include

. . . insurancepremiums

. ~. .R
We think such provision is clear and unambiguous. Insofar as insurancepremiums are concerned, it authorizes the College to pay out df its funds approprited for Collegemaintenanceand support,premiums on insurance policies authorizedunder existingTexas laws,Hon. Geo. H. Sheppard,page 4 (V-722)

such as insurance on property damage to College properties occasionedby fire or tornadoes. Attorney General's Opinions Nos. O-6246 and O-1762. There is absent therefrom any expressionon the part of the Legislatureto assume property liabilityor casualty liability occasion-. ed by the officers,agents or servants of A. & M. College, or to authorize the College Board to expend appropriated funds for liability insurancepremiums. Furthermore, H. B. 246, Acts 1947, is an appropriation bill as diatfnguished from general legislation;its provisionsmay not be construed to repeal express1 or by Mplication general legislationor established"a~. Pi Moore v. Sheppard. 192 S.W.(2d) 559. In short, ue can find in said Section 4, no language indicativeof a change of legialative policy with respect to insuranceof A. 6: M. propert.iea

which differa with that announmced in S.C.R. Ho. 3, A&a 1921. Since ~the

State I’S no,t,

1,iable for the tort.s or negligence of its offit?e'rsi agent~sor employees,being protected therefromby reason of its sovereignty, it follows that the Board of Directors of A. & 14.College has no authority to expend its pub1i.c fund for protective liability insurance for which i,t has no need. Opinion No. o-1100. Accordingly,the remium on the policy under consideration may not ,E

lega ly be paid from the current appropriations made to A. & W. College in -maintenance

and support items for *insuran&epremiuzP. Sec. 4, H. B. 246, Acts 1947; Attorney General*sOpinion O-4315. SD?@lARY

The Board of Directors of A. & M. College has no authority to pay premiums for liability insuranceon its airplane out of current appropriations made in H. B. 246, Acts 1947. Section 4 of H.B. 246, permittingthe use of A. & N. Collegets umaintenance and support items for

. . . insurance remiumd,$does not change or enlarge the legia ative po&ic~Y with P respect to insuranceof State propertiesasHon. Gee. H. Sheppard,page 5 (V-722)

announced in S.C.R. Ho. 3, Aeta 192L Attorney General's 0 v. Morgan, 170 S.W. Pinion O-UOO; State 2d) 652.
Yours very truly,
ATTORNEY GENERAL OF TEXAS

BY ~~~ Cheater E. Olliaon

Assistant

CEO:mw:mds

APPROVED:



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ATTORNEY GEWRAL

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