ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

May 27,2003 

The Honorable Kevin Bailey 

Chair, Cornmittee on General Investigating 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. GA-0076 

Re: Whether a school district may voluntarily pay 

the medical expenses and travel costs for a student 

injured in school or during a school activity 

(RQ-0007-GA) 

Dear Representative Bailey: 

Your predecessor as Chair of the House Committee on General Investigating asked whether 

state law prohibits an independent school district from voluntarily paying for a student’s medical 

expenses and travel costs related to an injury sustained by the student while in school or involved 

in a school activity.’ 

Background 

These questions arise in connection with the h-aan-Sheffield Independent School District’s 

expenditures for treating an injury sustained by a high school student during the 2001-2002 school 

year.2 See Request Letter, supra note 1, at 1. The request letter states that the student was injured 

in a wood shop class when her hand was caught under a board on a sanding machine, badly injuring 

two fingers. See id. She was stabilized at the local emergency room and sent to Midland for further 

treatment. See id. The attending physician in Midland recommended transfer to a specialist in 

Dallas, and the student and her mother were flown to Dallas at district expense. See id. Following 

surgery, which restored the use of her injured fingers, the student had to return for follow-up 

examinations and physical therapy. See id. The district provides an accident insurance policy for 

all students and has not been billed for any medical expenses related to this incident, but it paid 

transportation costs for the visits. See id. at 2. The school nurse accompanied the student on some 

occasions because the parents had limited ability to speak English. See id. at 1. 

‘Letter from the Honorable Pete P. Gallego, Chair, House Committee on General Investigating, Texas House 

of Representatives, to Honorable Greg Abbott, Texas Attorney General, at 1 (Dec. 4, 2002) (on tile with Opinion 

Committee) [hereinafter Request Letter]. 

2The Iraan-Sheffield Independent School District is located in Pecos County, Texas. See Education, Pecos 

County, Texas, available at http://www.co.pecos.tx.us/ed.html. 
The Honorable Kevin Bailey - Page 2 (GA-0076) 

“While the Iraan-Sheffield Independent School District was under no legal obligation to pay 

these costs, school trustees felt a moral obligation to assist a student in their jurisdiction and under 

their care.” Id. at 2. In August 2002, the school trustees voted to discontinue paying further travel 

expenses for the student out of concern for the legality of providing transportation and expenses for 

students injured at school or school-related activities. See id. We are not asked to review the school 

board’s expenditures in this matter but to address the following general questions about school 

district expenditures on behalf of injured students: 

Does state law prohibit an independent school district from 

voluntarily paying for medical expenses and travel costs related to an 

injury suffered by a student while the student is in school or involved 

in a school activity? 

Does any such prohibition extend to a coach or trainer transporting a 

student to and from surgery, follow-up visits, and physical therapy 

related to an injury in an athletic activity? 

Does any such prohibition extend to the provision of various related 

services provided by the school district through campus clinics, 

school nurses, and/or athletic trainers? 

Do any of the acts described above constitute a “gift” of taxpayer 

funds prohibited by law? 

Id.3 Our answers are limited to school districts and do not apply to state agencies or other 

governmental entities. 

II. Leeal Backwound 

The school district is protected by sovereign immunity from liability for the student’s medical 

costs and other damages resulting from the injury. Unless waived, sovereign immunity protects the 

state and its subdivisions from both suit and liability for damages. See Tex. Dep ‘t of Tramp. v. 

Jones, 8 S.W.3d 636,638 (Tex. 1999). The Texas Tort Claims Act, TEX. CIV. PRAC. &REM. CODE 

ANN. ch. 101 (Vernon 1997 & Supp. 2003), provides for governmental liability in tort and waives 

sovereign immunity to the extent stated in its provisions. See TEX. CIV. PRAC. & REM. CODE ANN. 

$6 101.02 1, 101.025 (Vernon 1997). However, the Tort Claims Act does not waive sovereign 

immunity for school districts “[elxcept as to motor vehicles.” Id. 9 10 1.05 1. Furthermore, school 

teachers and other professional school district employees are not personally liable for an act within 

the scope of the employee’s duties that involves the exercise ofjudgment or discretion, with narrow 

exceptions. See TEX. EDUC. CODE ANN. 8 22.051,22.051(c) (Vernon 1996); Downing v. Brown, 

31n answering the questions, we do not address a school district’s responsibility to provide health-related 

services to disabled students under the federal Individuals with Disabilities Education Act, 20 U.S.C. $8 1400-1461 

(2000), or Texas Education Code, sections 29.001-.017. 
The Honorable Kevin Bailey - Page 3 (GA-0076) 

935 S.W.2d 112 (Tex. 1996). Thus, with rare exceptions, neither a school district nor a teacher 

would be liable for damages for an injury sustained by a student during a classroom activity. 

Article III, section 52(a) of the Texas Constitution provides that “the Legislature shall have 

no power to authorize any county, city, town or other political corporation or subdivision of the State 

to lend its credit or to grant public money or thing of value in aid of, or to any individual, association 

or corporation.” TEX. CONST. art. III, 4 52(a); see also id. art. III, § 5 1 (legislature has no power to 

authorize the making of any grant of public money to any individual). When a governmental entity 

is not liable on a claim, the payment of that claim constitutes “a pure gift or donation” and violates 

the constitution. Tompkins v. Williams, 62 S.W.2d 70, 71 (Tex. Comm’n App. 1933, judgm’t 

adopted); accord State v. City ofAustin, 33 1 S.W.2d 737,742 (Tex. 1960); see also Tex. Att’y Gen. 

Op. No. GA-0062 (2003) at 2 (school district’s payment of non-prevailing party’s attorneys’ fees is 

a gratuitous donation of public funds). 

The constitutional prohibition against donating public funds to private individuals does not 

prevent governmental entities from using public funds to carry out their public purposes. See City 

of Austin, 33 1 S.W.2d at 743. Despite a school district’s immunity from damages under the Tort 

Claims Act, a school board may, under other authority, make reasonable provisions for an injured 

student’s care. The legislature and the courts have long recognized a school district’s interest in 

protecting and providing for the health and safety of students under their supervision. See Moseley 

v. City of Dallas, 17 S.W.2d 36 (Tex. Comm’n. App. 1929, judgm’t adopted) (because physical 

condition was relevant to a student’s ability to learn, school board could establish and maintain 

a school health department to provide physical examinations to students); TEX. EDUC. CODE ANN. 

89 21.002(a) (V emon 1996) (employment of school nurses), 33.085 (Vernon Supp. 2003) (purchase 

of insurance policy to fund medical treatment for students injured at school), 33.086 (Vernon Supp. 

2003) (head coach or chief sponsor for an extracurricular athletic activity, including cheerleading, 

must be certified in first aid and cardiopulmonary resuscitation). 

School districts have also established school-based clinics or health centers where students 

may receive primary health services.4 Legislation adopted in 1999 authorizes school districts to 

provide health care services to students and their families through a school-based health center and 

provides a grant program for qualifying centers. See TEX. EDUC. CODE ANN. $5 38.051-.064 

(Vernon Supp. 2003)? 

Section 33.085 of the Education Code authorizes the board of trustees of a school district to 

“obtain insurance against bodily injuries sustained by students while training for or engaging in 

interschool athletic competition or while engaging in school-sponsored activities on a school 

campus.” Id. 8 33.085(a). This provision further states that 

4SeeT~~~F~~~~~~S~~~~~H~~~~~S~~VI~~~,RE~~~~~~~~~S~~TEB~~RD~~H~~~~~, “ExtendedSchool 

Health Services,” (Apr. 1998) available at htt&/www.tdh.state.tx.us/schoolhealtWtf gb.htm(lastvisitedMay 14,2003). 

‘See Act of May 26, 1999,76th Leg., R.S., ch. 1418, $ 1, 1999 Tex. Gen. Laws 4847,4847-49, renumbered by 

Act of May 22, 2001,77th Leg., R.S., ch. 1420, 5 4.005,2001 Tex. Gen. Laws 4210,4218-21. 
The Honorable Kevin Bailey - Page 4 (GA-0076) 

(b) The amount of insurance to be obtained must be in keeping with 

the financial condition of the school district and may not exceed the 

amount that, in the opinion of the board of trustees, is reasonably 

necessary to afford adequate medical treatment of injured students. 

(c) The insurance authorized by this section must be obtained from 

a reliable insurance company authorized to do business in this state 

and must be on forms approved by the commissioner of insurance. 

(d) The cost of the insurance is a legitimate part of the total cost of 

operating the school district. 

(e) The failure of any board of trustees to carry the insurance 

authorized by this section may not be construed as placing any legal 

liability on the school district or its officers, agents, or employees for 

any injury that results. 

Id. 0 33.085(b)-(e). 

This statute reflects the school district’s interest in restoring an injured student’s fitness to 

attend school and to participate in athletic contests and other extracurricular activities, an interest 

served by funding the student’s medical treatment. As adopted in 1959, the predecessor of section 

33.085 related only to insurance for participation in athletics. See Act of Apr. 16, 1959’56th Leg., 

R.S., ch. 124’1959 Tex. Gen. Laws 215. A 2001 amendment to section 33.085, however, allowed 

the school board to obtain insurance “not only against bodily injuries sustained by students engaged 

in athletics, but also in other school-sponsored activities on a school campus.” HOUSE RESEARCH 

ORGANIZATION, BILL ANALYSIS, Tex. H-B. 2301, 77th Leg., R.S. (2001). Section 33.085 applies 

to classroom activities, as demonstrated by a bill analysis referring to the explosion of a high school 

chemistry lab where several students were badly burned, including one whose parent had no 

insurance. See id. Pursuant to this provision, a school district may purchase insurance to pay a 

student’s medical costs for an injury sustained at school or while involved in a school activity. 

A school board may also pay transportation costs incidental to providing medical care to a 

student. Education Code, section 45.105(c) authorizes a school district board of trustees to spend 

local school funds for various purposes, including “other purposes necessary in the conduct of the 

public schools determined by the board of trustees.” TEX. EDUC. CODE ANN. 8 45.105(c) (Vernon 

Supp. 2003); seealsoid. 8 11.151(b)(V emon 1996) (school board authority to “govern and oversee 

the management of the public schools of the district”). School boards have wide latitude to 

determine what expenditures are “necessary” for public schools and thus within the spending 

authority of Education Code, section 45.105(c), and its predecessor, former Education Code, section 

20.48. See, e.g., City of Garland v. Garland Indep. Sch. Dist., 468 S.W.2d 110, 1 1 l- 12 (Tex. Civ. 

App.-Dallas 197 1, writ ref d n.r.e.) (trustees could determine whether expenditure for paving streets 

abutting school property was “necessary in the conduct of the public schools”); Tex. Att’y Gen. Op. 

Nos. JC-0165 (2000) at 10 (trustees could determine that expenditure for “early exit” retirement plan 
The Honorable Kevin Bailey - Page 5 (GA-0076) 

was necessary); JM-1265 (1990) at 4 (trustees might find college scholarships to be “necessary in 

the conduct of the public schools”); H-l 33 (1973) at 5, 7 (trustees could determine that trustees’ 

travel and legal expenses were “necessary”); C-601 (1966) at 3-4 (trustees have discretion to 

determine whether expending surplus money from operation of school cafeteria to provide lunches 

to needy pupils is “necessary cost in the efficient conduct of its public schools”). A school board 

may pay travel costs ancillary to providing medical care for an injured student if it deterrnines, in the 

exercise of reasonable discretion, that these expenditures are necessary in the conduct of the public 

schools. The district’s determination is subject to judicial review. See Tex. Att’y Gen. Op. Nos. 

JC-0165 (2000) at 11; H-133 (1973) at 4. 

III. Specific Questions 

We address the specific questions. 

A. Question One 

We are first asked whether state law prohibits a school district from voluntarily 

paying medical expenses and travel costs related to an injury sustained by a student while in school 

or involved in a school activity. As stated above, Texas statutes do not prohibit a school district from 

voluntarily paying medical expenses and travel costs for students injured at school or in a schoolrelated activity. Section 33.085 expressly authorizes a school board to purchase insurance. The 

school board may pay reasonable travel expenses related to treating student injuries sustained at 

school or during a school activity, if the board determines that the expenditure is necessary in the 

conduct of the public schools. 

B. Question Two 

The next question is whether a coach or trainer may transport a student to and from 

surgery, follow-up visits, and physical therapy related to an athletic injury. The request letter states 

that school districts routinely furnish transportation in these cases. See Request Letter, supra note 

1, at 2. A school district may authorize coaches and trainers to provide such transportation as a job 

responsibility if the board determines that this activity promotes an objective of the school district 

and that it is appropriate to a coach or trainer’s job description. A coach or trainer may also provide 

transportation on his or’her own time without using school district resources. The school board and 

the coach or trainer should be aware of other applicable statutes. For example, school districts are 

subject to the Tort Claims Act “as to motor vehicles.” Id. Statutes or board rules requiring parental 

consent may also apply. Seegenerally Tex. Att’y Gen. Op. No. DM-378 (1996) at 2-3 & n.4 (issues 

relating to transportation of public school students in privately-owned vehicles operated by parents 

and teachers). 

c. Question Three 

We are next asked whether state law prohibits a district from providing various 

related services through campus clinics, school nurses, and/or athletic trainers. We answer this 
The Honorable Kevin Bailey - Page 6 (GA-0076) 

question generally, because the related services required in connection with a student’s injury will 

depend on the nature of the injury. The board of trustees may provide “related services” to injured 

students if it determines that these services are necessary in the conduct of the public schools. Other 

statutes are relevant to providing services through school nurses and athletic trainers. Licensed 

health professionals may provide professional services only within the terms of the practitioner’s act. 

See, e.g., TEX. OCC. CODE ANN. chs. 301 (Vernon 2003) (Nursing Practice Act), 451 (athletic 

trainers); see also TEX. EDUC. CODE ANN. fj 21.003(b) (V emon 1996) (school district may not 

employ a person as an audiologist, physician, nurse, school psychologist, or certain other 

professionals unless the person holds the applicable state license). Questions about the health care 

services that a campus clinic or school-based health center provides to students must be addressed 

to the specific clinic or school-based health center. 

D. Question Four 

We are finally asked whether a school district’s voluntary provision of such services 

constitutes a “gift” of taxpayer funds prohibited by law, a question relevant to the expenditures 

discussed in the first three questions. Under Texas Constitution, article III, section 52(a), the 

legislature may not authorize a political corporation, including a school district, to grant public 

money or anything of value to an individual. See TEX. CONST. art. III, 4 52(a); see also id. art. III, 

8 51 (legislature has no power to authorize the grant of public money to any individual). This 

constitutional provision prevents the gratuitous grant of public funds for private purposes. See Byrd 

v. City of Dallas, 6 S.W.2d 738,740 (Tex. Comm’n App. 1928, judgm’t adopted); Tex. Att’y Gen. 

Op. No. GA-0062 (2003). An expenditure of public funds for a public purpose is not, however, an 

unconstitutional grant of public funds. See Tex. Mun. League Intergovernmental Risk Pool v. Tex. 

Workers ’ Comp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002); Edgewood Indep. Sch. Dist. v. Meno, 

9 17 S. W.2d 7 17,740 (Tex. 1995). An expenditure to accomplish a public purpose is constitutional 

even though it incidentally benefits a private interest. See Byrd, 6 S. W .2d at 740; Graves v. MoraZes, 

923 S.W.2d 754, 757 (Tex. App.-Austin 1996, writ denied). 

A school board may pay for its students’ medical expenses, incidental travel, and other 

incidental services related to an injury sustained at school only if the expenditure accomplishes a 

public purpose. The Texas Supreme Court has stated the following three-part test to determine if 

a statute accomplishes a public purpose: 

[T]he Legislature must: (1) ensure that the statute’s predominant 

purpose is to accomplish a public purpose, not to benefit private 

parties; (2) retain public control over the funds to ensure that the 

public purpose is accomplished and to protect the public’s investment; 

and (3) ensure that the political subdivision receives a return benefit. 

Tex. Mun. League Intergovernmental Risk Pool, 74 S.W.3d at 384. This test also applies to political 

subdivisions exercising delegated legislative powers. See Tex. Att’ y Gen. Op. Nos. JC-02 12 (2000) 

at 3-4; JC-0113(1999) at 2; DM-256 (1993) at 2-3. 
The Honorable Kevin Bailey - Page 7 (GA-0076) 

The school district’s payment for student medical expenses related to an injury sustained 

while in school or involved in a school activity will not constitute a gift of public mnds prohibited 

by article III, section 52 if the school board (1) determines that the expenditure’s predominant 

purpose is to accomplish a public purpose, not to benefit private parties, (2) retains sufficient control 

over the expenditure to ensure that the public purpose is accomplished, and (3) ensures that the 

school district receives a return benefit. When the school board applies this test to its expenditures 

for ancillary services, such as transportation to physical therapy sessions, it must consider whether 

these primarily benefit the school district or the individual. The school district must place sufficient 

controls on the expenditure to ensure that its public purpose is accomplished. Contractual terms may 

provide sufficient control of some expenditures. See Key v. Comm ‘rs Ct. of Marion County, 727, 

S.W.2d 667,669 (Tex. App.-Texarkana 1987, no writ). Controls such as application requirements 

and limits on travel expenditures may be established by the board’s exercise of rule-making power. 

See TEX. EDUC. CODE ANN. 5 11.15 1 (d) (Vernon 1996). The return benefit received by the school 

district need not be monetary, but instead may be accomplishing the school district’s public purpose. 

Whether a particular school board action complies with the constitution raises fact questions that 

cannot be addressed in an attorney general opinion. See Tex. Att’y Gen. Op. Nos. GA-0061 (2003) 

at 9; GA-0003 (2002) at 1 n.2; M-l 87 (1968) at 3. 
The Honorable Kevin Bailey - Page 8 (GA-0076) 

SUMMARY 

Section 33.085 of the Education Code authorizes a school 

district to purchase an insurance policy to cover a student’s medical 

expenses for bodily injuries sustained in connection with interschool 

athletics or while engaging in school-sponsored activities on campus. 

A school district may pay medical costs and incidental travel costs for 

a student injured at school or in connection with a school activity if 

the school board determines that the expenditure is necessary in the 

conduct of the public schools. 

The district’s payment of travel costs will not constitute an 

unconstitutional gift of public funds to an individual if the school 

board (1) determines that the expenditure’s predominant purpose is 

to accomplish a public purpose, not to benefit private parties, (2) 

retains sufficient control over the expenditure to ensure that the 

public purpose is accomplished, and (3) ensures that the school 

district receives a return benefit. 

Very truly yours, 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee