AUSTIN 11. TJSXAS PRICE DANIEL ATTORNEY

GENERAL June 28, 1948

Hon. Wallace T D Barber opinton NO. v-619 CountyAttorney Hays Count

Jr Re: Authority OP rural San Marcos, Texas high school district to secure WorkmenQs CompensationInsuranoe on workmen erecting school bullding*

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 buildingbonds for the constructionof
new buildings and remodelingof existing buildings

6 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 Compensationand 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 woHcmmDa compO from either the bond money or else from reg- ~18~ s,ehool

tinda+ ”

Art. 2922k, V. C. S,, provides:

“All rural high schoolswithin 8 rural high school districtherein 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 super fotetident

and-, eount;l board of school,,

,trustees,

and ahall be sub

i e(9t ,to the:sameprovisionsof law and PestP Btfons thrt, common sohool districtsare now subject to, except where otherwiseprovidedherein.’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, 8tltkOPfteE thb tPU8tb.5Of 8 aehool dlstrlct to OOtltP8et fop the ePbetfon of the bufldings 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 followfngpurposers Q 0 0 0

**“ 2,**  L0081 school fu~@s ~POIR disfP"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 runtlr

snd POP pur8hbrfQgrpplfanees8d supplies

> la. 0 0 0 0

We bolfeve y'ou~ queatfon fs aentmllod **by** the reaeoning 8nd oonolusfonPeaeked la Ophioa 810. 0-1418 of the Attornef Oeaeril of %?exas, approved Bsptember 25,/1939. The question there oonspderod was Whether 8 school dimtpiot,whlah is not Ifable for pepSORO1 it~juPJ

rPO8 6 #IS&@01

buS 8O&fdOnt,h8e 8UthOPfty to expand fts publfe funds Co gur@hDile liabflftyor pOPSOn in,jau?y **fIWPbt3C0,** rOP th@ bQQ&ft Or PI&h and third pa??tfee~That queetfonwas eonsidsred f~or the St8UdpOfntof"

whotheeAHfele **2827,** V. 6, S,,abovo quoted; provided f?Xp!Pbml 8uthoPftf POP such 8n oxpenditum; l

nd, ff not, wh%theP ,ths 8uthoPftytight be implied Boa the exp~eas statutoryauthorfty to operate schoolburaa, It vat! **thepd,** hold that sines thope could be no lfabflftyon the pmt ofp V&I dfrstPfat

OP fts agents and employees fn tho porfommee of the govepnmental f'unetfon

or opepatfngQ scshool bus, ,suehexpendituPe W8S not authoPfSed**by** APt. 2827. It W8S held that the 18tteP A,Ftfcle authorfeedp8YIm8nt Of p~e8fu~ar only r0P tiueh

fasuPbnoe85 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 eonnootfon rfnee themi ~81 no neeersity r02 auah expenditree ao rap am the school listPfat.Wae~onee~aed,

The epeatfon of sahoolbufldfngr '%sj a schoolHon. Wallaoe T. Barber, Page 3, v-619

district,was

held in an oplnlon of the Attorney Cenera1 dated June 8, 1937, Book 376,,psge 733, addressed to ,Covernor James'V.Allred, to be a governmental funutfon and the district could not be subjected to pecuniary loss or llablllty by.reason of injuriessustainedby persons In connection with the erection of such buildings. Therefore, the authority in Article 2827 to pay insurancepremiums doer not lnuludeauthority to pay for such lnsuranoe. lo other,authority is found ,for

such an expenditure.

In Opinion No, O-5315 n approvedMay 22, '.. 1943, the AttorneyGeneral held that then County Commlsaioner8~Court OS a county did not have poWbP to procureworkmen's compensationinsuranceon operators of road maintenanceequipment,following the rule stated in Texas Jurisprudence, Vol. 45, p- 455, Sec. 69, that the Texas Workmen*8 Compensation Law "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 empowered to !'provldb workmi!n~~s

tiO%pensation

lnsuranae ior uu(rh

state ~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 opinionwas the laok of express statutoryauthority, equally applioabloto your queation. The Legislature haa not extended such benefits to sehool districts.

There are oadd holding that a clt -?d , though not aubjeOt'tothe Workmen18 Compensation 9 =wa nevertheless,Insure-itsemployeesagainst bodily lnWY. See MoCaleb v. ContinentalCaaaaltgCo.,~l32 Tex.~65, ,116 S, W, **(28)** 679:'CrertAmerloan Indemnity Co, v. Blakey, 107 3. W. (2d)'1002 (Courtof Cfrll Appeala, San Antonio) on raotlon~ ior rehearing,p* 1006; and, Southern Calrualty Co, v@ Morgan, 299 S;W. 476, affirmed,Commissionof AppQalr, X? '%, W, (26) 200, Aone of these oases deal with the souroe ai' authority to the city to make the oxpendlture. They merely eatabllsh two aollateralp~lnclpl8s~lat, the faut that eltles are note

fnaludedwithin the provlrlonaof the Wor.kaen's

Compensation

Law will not preclude them from entering Into a contract Pnsurlng their employeesOn the samb.brslraa employeesare insured under theRon. Wallace T. Barber, Page 4, v-619

Workmenls Compensation Lawg and, 2nds having entered into such a contract the insurer Is estopped to assert the lack of authorityon 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 Insurance by a olty depends upon the construction and applicationo? its chapter and the statutes applicablethereto,whereas the authorityof school districtsand strictly state agencies to make expendituzres must be found in applicablegeneral statutes governing their expenditures.

We express no opinion a8 to the liability of' an lnsuranaecompany to an employee of any school distriotwhich took but much InsuPanoe, notwithstanding its want of authority. This fob t&s Serson,thatthe
cases cited say that the insu~mea conponies are eatopped to raise the question of the power to contract. McCaleb v. ContinentalCasualty Co,, supra,

You are respeotf'ully advised that such expenditure is not, la otm opiaion,, authorired.

A rural high school district is not authorizedto expend money in payment of premiuma for workmen"a compensationinsuranoe payable to its employees fop personal injuriesreceivedwhile engaged in the eonstructionof a schoolbuilding,

Very truly yours A!PTORflSq

ffBl$l$ OJ TXM_

N&/rt

APPROVED;

, iames 'Ti!%-yafl Assistant