,

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 schooldistrict-- Superintendent authority to indemnify

third parties for Austin,Texas actionssoundingin tort.

Dear Sir:

We are in receiptof your letter of March 27, 19& In which you request the opinionof this department concerning

the authority

of the Board of Trusteesof the Borger Independent SchoolDistrictto execute a lease or licensecontract 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 causedby 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 CorporationVIby 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 carbonblack plantyard of J. M. Huber Corporation and all of the hasardsto students and inetructors

using said premises

and passingthrough said plaut yard are 'expressly

assumed

by the lessee.

"And the said lesseepromisesand covenants to ihdemnifyand hold haxmless the said J. H. Huber Corporation from any and all claims for damagesfor injuries to personsand for deathand 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,

fitnessor. 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 schoolproposesto teach classes in veldingat the machine shop and yards of the lessor. The above quotedprovisions appear as a part of the agreement whereby the Company proposes

to grant its consentfor the we of its property for such purposes.

School districts

are public corporations and government

agencies exercising

a governmental

function. They differfrom cities and towns in that the latter exercise a dual function,

to-wit,governmental and proprietary, while a schooldistrict is purely a govermental agency and exercises only such powers as are delegated to it by the state. It perfonnsno proprietary functions

which are separate and independent

of its governmental powers. In this respect it is more readilycomparable to a county,

which is not held answerable

for its negligence in an action foundedin tort. Brown v. Trustees of~~Victoria

Independent

SchoolDistrict, (T.C.A. 1938, writ refused) 1l.h S.W. (2d) 9b7. The schooldistrict has no liability

for actions sounding in tort, arisingout 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. VictoriaIndependent 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

"cannotassumea liability

where none legally exists.6 It is too well settledto requirecitation of authority

that a board of school trustees has limitedauthority and nay not bind the district in excess of the authority grantedthem by statute either expressly

or by necessary

implication. It is our opinionthat the trustees

of a school district nay not subjecttheir school district to liability in tort where such liability does not exist in law. The situation would be analogous to an officeror 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 shallbe subjectto 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 whethera schoolboardnay enter a contract whereby the districtbecollies an indamitor of a third partyforhis own torts. It has been held how ever that a sumlcipal corporation

may not beccaae

a guarantor

in the absenceof legislative

authority. In Dillon,Municipal Corporations,

5th ed., Vol. II, g 8111, it is stated:

“ A municipal

corporation

cannot, without legislative authority,

becaae suretyfor another corporation or an individual;cannotguarantee the bonds or obligation6 of another,
or make accommodation indorsernents.

Such an authority

cannot be iaplledor deducted from the generaland usual powers conferred

upon such corporations. Although such a oorporation may have power directly to acoanplish

a certainobjwt,I

, -. .

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

and itself expend its revenues or money therefor,

yet this do66 not give or includethe 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 contractof suretyship,

. . . 'a contract

which carries

with it a lesionby its very Mture.' Thus the indorsement of the bonds of a streetrailroad compaw in a city, by the city authorities, is not within the ordinary administrative

powers of the corporation, and requiresexpress legislative grant.c
While there is a decideddistinction betweencontracts

of suretyship and indemnity, they are somewhat

similar in naturewhen considering authority

for their execution. Neithercan be said to be of the character ordinarily

or necessarily

contemplated

in the usual artninistration ad management

of the governmental functioncommitted to school districts. We find no expressauthorityin our statutes for school districts to become indemnitors

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

have only limitedauthority to bind their districts, is particularly

appli&le to obligations of this nature and authority to bind the districtin contracts of this nature cannotbe inferred frcan the general grant of authorityin Article 2780, R.C.S., 192.5, to manage and controlthe affairsof the district.

It is also well settled that a board of tmstees is limited in its authorityto 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 opinionthat a board of trusteesof a school district does not~haveauthority to bind the districtin 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:OPINIONCOMMITTEE BY: BWB, CHAlRMhN
CCC:db:wb ATTORKKXGKKKRALOFTKKAS

By /a/ Cecil C. Caaauack Cecil C. Camnsck,

Assistant

O.K. GKL