, 

Gerald C. Ham 

aj~Pl%L 

*.=-Tom- o- 

&xrrlN 11. TEsxAm 

Hon. T. M. Trimble Opinion No. 0-33L6 

First Assistant State He: Tort liability of school district -- 

Superintendent authority to indemnify third parties for 

Austin, Texas actions sounding in tort. 

Dear Sir: 

We are in receipt of your letter of March 27, 19& In which 

you request the opinion of this department concerning the authority of 

the Board of Trustees of the Borger Independent School District to execute a lease or license contract containing the following provisions: 

"The lessee (School District) expressly assumes 

all liability for injury or death to any students or 

instructors in attendance at said school, whether 

caused by the equipment and material supplied by J. M. 

Huber Corporation, or the condition of the premises or 

by any of the employees of J. M. Huber Corporation VIby soy other cause, direct or indirect, resulting in 

injury or death to any of said students or instructors. 

*It is understood that the premises leased are in 

the carbon black plant yard of J. M. Huber Corporation 

and all of the hasards to students and inetructors using 

said premises and passing through said plaut yard are 

'expressly assumed by the lessee. 

"And the said lessee promises and covenants to ihdemnify and hold haxmless the said J. H. Huber Corporation from any and all claims for damages for injuries 

to persons and for death and for damage to property ads-' 

ing out of or in connection with the operation of said ; 

school on said premises. 

"It is understood and agreed that J. M. Huber Corporation is permitting the use of its premises and equipPent 

& students and instructors without charge; and it makes 

no representation as to the condition, quality, fitness or. 

safety of the praaiees, mterial, equi~ent, buildings or 

structurer~ and that lessee hereby assume full respouslbility and liability for the 0ame.e 
. . 

Hon. T. H. Trimble (0-33b6) page 2 

The occasion for the contract grows out of an arraugement whereby 

the school proposes to teach classes in velding at the machine shop and yards 

of the lessor. The above quoted provisions appear as a part of the agreement 

whereby the Company proposes to grant its consent for the we of its property 

for such purposes. 

School districts are public corporations and government agencies 

exercising a governmental function. They differ from cities and towns in 

that the latter exercise a dual function, to-wit, governmental and proprietary, 

while a school district is purely a govermental agency and exercises only 

such powers as are delegated to it by the state. It perfonns no proprietary 

functions which are separate and independent of its governmental powers. In 

this respect it is more readily comparable to a county, which is not held answerable for its negligence in an action founded in tort. Brown v. Trustees 

of~~Victoria Independent School District, (T.C.A. 1938, writ refused) 1l.h S.W. 

(2d) 9b7. The school district has no liability for actions sounding in tort, 

arising out of the performance of its governmental function. Opinion6 O-u3 

and O-1405, copies of which are enclosed herewith; McVey v. City of Houston 

(T.C.A. 1925) 273 S~.W. 313; Brown v. Victoria Independent School District, 

supra; 24 R.C.L.g 60, p. 601r; 37 T.J. I lh8, p. 1030 and authorities there 

cited, particularly notes in A.L.R. 

McQuillin in his work on Municipal Corporations, 2nd ed., Vo1.3, 

sec. 1270, makes the statement that a amnicipal corporation "cannot assume a 

liability where none legally exists.6 It is too well settled to require citation of authority that a board of school trustees has limited authority and 

nay not bind the district in excess of the authority granted them by statute 

either expressly or by necessary implication. It is our opinion that the 

trustees of a school district nay not subject their school district to liability in tort where such liability does not exist in law. The situation 

would be analogous to an officer or agent of the State atteinpting to create 

liability on the part of the State for action6 founded ia tort, or a cuamissioners' court contracting that the county shall be subject to tort liability. The lack of authority in such izmtances wculd semn to be fundamental. 

No cases directly in point have cone to our attention upon the question of whether a school board nay enter a contract whereby the district becollies an indamitor of a third partyforhis own torts. It has been held how 

ever that a sumlcipal corporation may not beccaae aguarantor in the absence of 

legislative authority. In Dillon, Municipal Corporations, 5th ed., Vol. II, 

g 8111, it is stated: 

“A municipal corporation cannot, without legislative 

authority, becaae surety for another corporation or an individual; cannot guarantee the bonds or obligation6 of another, 

or make accommodation indorsernents. Such an authority cannot be iaplled or deducted from the general and usual powers 

conferred upon such corporations. Although such a oorporation may have power directly to acoanplish a certain objwt, 
I 

, 

-. . 

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

and itself expend its revenues or money therefor, yet this 

do66 not give or include the power to lend it6 credit to 

another who may be empowered to effect the same object. 

&pending money by a city council, as agent6 or atiinistrators of their constituents, is a very different thing fraa 

binding their constituents by a contract of suretyship, . . . 

'a contract which carries with it a lesion by its very Mture.' Thus the indorsement of the bonds of a street railroad compaw in a city, by the city authorities, is not 

within the ordinary administrative powers of the corporation, 

and requires express legislative grant.c 

While there is a decided distinction between contracts of suretyship and indemnity, they are somewhat similar in nature when considering 

authority for their execution. Neither can be said to be of the character 

ordinarily or necessarily contemplated in the usual artninistration ad 

management of the governmental function committed to school districts. We 

find no express authority in our statutes for school districts to become 

indemnitors for the torts of third parties. The well established rule by 

which trustees have only limited authority to bind their districts, is particularly appli&le to obligations of this nature and authority to bind 

the district in contracts of this nature cannot be inferred frcan the general 

grant of authority in Article 2780, R.C.S., 192.5, to manage and control the 

affairs of the district. 

It is also well settled that a board of tmstees is limited in 

its authority to expend the funds of its district and may not bind the district in excess of available revenues for the current year. The nature and 

extent of the obligation recited in the above quoted contract would seem to 

be wholly incompatible with the policy and purpose of this limitation. 

It is our opinion that a board of trustees of a school district 

does not~have authority to bind the district in the manuer set out in the 

above quoted agreement. 

Yours very truly 

APPROVED AF% 5, 19i41 

/s/ Gerald C. Mann 

ATTORNKY GENERAL OF TEKAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAlRMhN 

CCC:db:wb 

ATTORKKXGKKKRALOFTKKAS 

By /a/ Cecil C. Caaauack 

Cecil C. Camnsck, Assistant 

O.K. 

GKL