OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Mr. D. W. Stakes, Cashier 

Texas Prison System 

Huntsville, Texss 

Dear Mr. Stakes: 

We acknowled 

lier has remed t0 pas8 

amount of the premium to 

ardor that this office 

hoald not be approved by 

a specifio appropriation 

f this olalm Is one that may 

6gd'Er psylaent out of the current appro- 

\off$d/e on February 14, 1939, in Opinion No. O-201, 

held that thB State Board of Bealth was unauthorized to insure State property in its possession against loss by fire 

unless a specifio a$propriation had been made for that purpose. That opinion was bottomed upon the proposition that 

the Le&slature had in Senate Conaarrent Resolution No. ?I, 

passed at the Second Called SassIon of the 37th Legislaturei 

declared it to "be the fixed,palley ot this State to oarry its 

omn Insurance upon State buildings and aeptsmts, and that no 
):I-. D. W. Stakes, Page #2. 

insurance policies ehall be taken out upon ony of the 

public buildings and oontents thereof . . .* 

Oplnion Ro. O-842, dated May 25, 1939, holds that 

the Commissioner of Agrioulture has. no authority, in the 

absence of a speoifio appropriation for suoh purpose, to 

,pay the Premium on a fire or casualty insuranoe polioy 

Issued on certain livestook owned by the State. 

An available apeoifio appropriation to pay the premium on any kind of a polloy Issued in favor of the State 

would amonnt to a subeoquent deolaratlon of polioy by the 

Legislature and would, to that extent, repeal the polloy 

announced by the Resolution above referred to. 

In the instant ease, there is a speolflo appropriation made to the Teraa Prison Syatsm for the purpose of 

paying “liability lnsuranoe premlums.W It, therefore, 

neoessarily follows that if the polloy on which the premium 

Is sought to be paid from said appropriation is solely a 

oolioy of that ohtwaoter, your queatlon may be answered 

in the affirmative. 

For the purpose of this opinion, the matarlal provisions of the polioy aret .- 

The Rartford Steam Boiler Inspeotlon and Insuranoe 

compao~ of Hartford, cozmeotiout . . . 

*In oonsidemtlon or $2.172.30 premium doe6 

hereby agree with Texas Prison Board and/or Texaa 

Prison System and/or Its Eleoted or Appointed Ofrloem, whoae l a6reaa la Fiuntrville, Texas, Cmpeoting loss (3koiuaing 10~1 of the kind dsroribsa 

in Seotion II, and Inoludlng lees of the kind deaorlbea in Seotlon Iv) from an aooldent as herein 

deflnad to an objeot desorlbed herein, occurring 

during the polioy period which la from May 23, 1939 

to Ray 23, 1942, at 12 o’olook noon, standard time, 

as to eaoh of said dates, at the plaoe where such 

accident oooura, aubjeot to a Limit per Aooident 

of Fifty Thousand Dollars ($50,000.00), ae follows: 

“SECTION I To PAY the Assured for loss on the 
, 

Mr. D. %'. Stakes, Fage lf3. 

Property of the Ar:?ured dlrcctly damaged 

by such accident (or, if the Company so 

elects, to repair or replace suoh dar-la,.ed 

property), excluding (a) lots from fire 

(or fron the use of water or other msaos 

to extinguish fire), (b) loss from an sccldent oaused by fire, (0) loaa from delay 

or Interruption of business or .mnufacturing 

or process, (d) loss from laok of power, 

light, heat, steam or refrigeration, and 

(e) loss from any Indirect result of an 

aooldenti 

. . . 

"SECTION m TO PAY, ,to the extent of any Indemnity remalnlng hfter payment of all loss as may be 

required under Seotlonrr I and II, suoh amowits 

ss the Assured shall become obligated to 

pay by reason of the llabllity of the Assured 

for loss on the property of others dlreatly 

damaged by suoh aocldent, Including llablllty 

for loss of use of suoh damaged property of 

others; to DEFEND the Aasurea agalnat any 

olaim or suit alleging suoh damage unless or 

until the Company shall eleot to effect settlement thereofi 

"SECTION IV To PAY, to the axtent of any Indemnity remaining after payment of all loss as may 

be required under Seotlons I, II and III, 

If loss under Section IV la stated l bova 

as lnoluaad but not otherwise, suah amounts 

as the Assured shall beoome obligated to 

pay by reason of the lIablllty of the* 

Assured, Inoludlng llablllty ror loss of 

servloes, on aooount of bodily Injuries 

(lnoludlng death at any tima reaultlng therefrom) sustained by any person and caused by 

euoh aooldent, except that ths lndemnlty 

heraunder shall in no event apply to any 

liability or obligation under any workmen's 

oompensatlon law; to PAY, if loss under 

Section 17 la stated above am Included but 

not otherrime, lrreapeotlve of the &imft 

per Aooident, for l uoh immediate aurglcal 

relief as shall be rendered at the time Of 

the aocldent; to DEFEND the Assured, lr loss 

under %&Ion TV ie eteted above as included 
.r ..,,I-. D. I?. Stakes, w!w #4. 

but not otherwise, against any olalm or 

suit alleging auoh lieblllty unless or until the Company shall eleot to effeot 

settlement thereof; and 

“SECTION V To PAY, lrreapeotive of the Limit per 

Aooldent, all oosts taxed against the 

Assured in any legal prooaedlng defended 

by the Company in aooordanoe with Seotlon 

111 or IV, all interest aoorulag after 

entry OS judgment rendered in oonueotfcn 

therewith up to the date of paymant by the 

Company of its share of such judgment, 

all preaulum oharges on l tta o hment or appeal bonds’ required In auoh legal prooaedIngs, an4 all expenaea Inourred by the 

Company for auah defenae~ ...(( 

Sohedulea Nos. 1 and $2, attaohed to the polioy and made a 

part thereof, deaorlba reapeotlvely the steam and gas engines 

as the *objeotsw insured. On the baok of aaoh aohedule la 

printed the saise deflnltlon of “objaota an4 *aooIdent.m The 

deflnltlon of aooldent la: 

*As reapeota any objeot aeaorlbad In this 

schedula , ‘Aocidant9 shall maa a sudden and aocldental breaking, defoxmIag, burning out or rupturltw 

of the objaot or any part theraor, whlah manifests 

ltaelf at the time of Its ooourranoa b# hadiately 

preventing continued operation or by Iamedlataly 

impairing the tunotiona or tha objeot and whIoh 

neoaaaitatea rapalr or raplaoamant baiojpa ‘its operation oan be raaumed or Its funotlona roatorad, but 

the breaking, deforming, burning or rupturing of any 

gasket or gland paoklng ahall not oonstltuta an 

aocldent, nor shall tha depletion of m8tSrIal in any 

part of tha objaot, due to pitting, oorroalon or 

wear;be oonatrued as an l Odident.* 

Under SaotIon 1, the Company obligates ftaelf "To pay the 

Asnured for loaa on the property of the Assured direotly 

da ma ged by a uo h l ooldent (or, if the Coa~pany ao aleota, to 

rapalr or replaoe l uoh damaged property),* l xoludlng loss 

by fire and othar named eroeptlona. 

Seotlon 11 has been exoludad from the policy. 
or. D. W. Stakes, Page #5. 

Seotion III oblI.qstes the Company to pay "such amount8 as 

the Assured shall baoome obligated to pay by reason of tha 

lIabIlIty of the Assured ror lose on property of others 

dlreotly damaged by euoh aooldent, InoludIng 1IabIlIty rOr 

loss of u8e of auoh damaged property or others," and to 

defend the assured In event of a cult agalnet him ror euoh 

damages. 

Seotion IV obligates the Company to pay "euoh amount8 

a.~ the Assured shall become ob,llgated to pay by reason of 

the liability of the A88ured, Including llablllty for lose 

or 88~-~ioe8, on aooount of bodily injurlae (lnoluding death 

at any time resulting therefrom) eustalned by any person 

and oauaed by auoh aooldent,* exaept llablllty or obllgation under any Workmen's ColPpaneatIon law, and to pay 

surgloal reller rendered at time of accident and to defend 

against any olalms or ault, ato. 

Seotlon V obligates the COmpany to pay all coats taxed 

against the Assured in any legal prooeeding defended by the 

Company In acoordanoe with Seotlone III or IV, sto. 

In COOhy’8 Briei on the Law 0r Insuranoe (2nd Ed.), 

page 325, It 18 saidr 

There are three 01a68e8 Of liability 

inauranoe -- insuranoe againat llablllty for 

psraonal Injury to amployes, againat liability 

for injurlsa to pareons other than amployes, and 

against llablllty for injurlaa to all olaeaar Or 

~r8Olt8.” 

Again, on page 11, the author eaysr 

"80 far ae lnsuranoe has been daveloped 

wlth refsrenoe to aooldental injury to, Or 

destruotlon or property, a8 by explosion Oi 

bOIler8, breakage of gl888, and Injury generally 

by aooldent 8uOh aa injury to an automobile 

due to ooll&on, lnoludlng injury to, and slokno88 and death of animal8 Is known as 088Ualty 

inauranoe.* 

It IS said in lbriployar*s Liability Aesuranoe OorporatIon 

V8. Merrill, 155 Lbass. 404, 29 N. E. 529, that aooldent 

insuranoe IS oonfined to aooldenta reeultlng In Injury t0, 

or death or, human beinga. It8 ridd 18 not to ineure 
Mr. D. W. Stakes, Page #a. 

againet loe8 or damage to property, though oocasloned by acofdent." 

"*Casaalty Ineuranoe' are words of quite 

freqU8nt ~843, yet it oamot be said that their 

deiinftion ha8 been very aocurately eettled by 

the courts. Strlotly and literally *casualty* 

18 perhapr to be limited to inJurIes whloh arise 

solely from aooidsnt wIthout any element of eonSOiOUS human design Or Intentional human agency; 

Or, 88 it 18 8~eth8 eXpre86ed, ineVit8bl8 

acoldent, 

agalmt. 

somethbg not to be foresean or guarded 

But in ordfnary uaage 'ea8ualty,' like 

*aooIdant,* is quits oommonly applied to 108808 

and inlarlaa rhloh happen suddenly, an8xpeotsdly, 

not in the u8ual oour8e of eve&e, and without dedgn on part or the psreon surfsring rrcnu the 

Injury." Bankera' Wtnal Ca8nalty Co. vs. Plrat 

National Bank or Council Bluris, 108 N.W. 1040, 

Wl Iowa 456. 

Oenaral Casualty companies may be lnOOrpOr8tid under 

the provisiona of Artlole 4989, Raflsed Statutes, and may 

Include in their articles of lnoorpcuatlon any'one or all 

of the eleven purpoasrr anrrmsrated in 8ald Artiola, a8 well 

as other8 if authorized by Saotlon 12 thereof. Seotlon 2 

reads: 

nfo lnaure against loss or damage msultlng fraa l ooldant to or Injury auetalned by 

an saploye or other person for whioh aooident or 

injury tha aaaamd 18 liable.* 

Under this Seotlon the ocapany may write lnauranoe 

against llablllty for personal InJmy aq8talned by an amaloye mmltlng from aooldant, soomonly known as *employ8r*8 llablllty lnsuranoe.a It may al80 insure againat 

liability ror InJuries to persona other than employee 

resulting frocll aoolUent for whloh the assured ia liable. 

Seotion 8 provIde8r 

To lneiuro against 1088 or damagaa resdtlng from aooldont to or injury aulisred by any 

person rot wbloh 1088 and dapuge the Inrrured 

18 llabl88 sxoeptlng smployerri liablllty insoranc8 a8 authorized ander Subdivision 2 of this 

htiOi8.” 
. . 

!.:r. D. X. Stakes, Page #7. 

Under this Seotlon the oompany may write the sent) kind 

of in8UranOe provided for in Section 2, except employer's 

lIabIlIty Inauranoe. The Inauranoa written under sections 

2 and 8 may be properly oalled "lIabllIty Insuranoe.* 

Seotlon 5 reads: 

"To insure against 1088 from injury to 

person or property which reerults 8OCident8lly 

from steam boilers, elevators, eleotrioal derioes, 

engines and all maohlnery and applI#anoe8 USed 

in oonneotion themwlth or operated thsreby; 

and to lnsum boilers, elevators, eleotrloal 

devloe8, en&m, mschlnery and applianoee." 

The polloy under oonslderation, while written by a 

foreign 0011pany, evidently with a permit to do bU8In888 

in this State, is one oorerizg both injury to property and/ 

to any person sustained a8 a result.ot an ecoldent. It 

embraoea both oasualty and llabIllty olau8e8, suoh as may 

be written under Seotlon 6, quoted above. 

It 18 apparent that the ln8nranoe for which the Coapeny has oontmoted to pay loss on the assumd*s property 

~iI~~~~eoooa8iOn8d by aooldsnt 18 oasudlty, not lIablllty 

Themrom, the premium on said polloy oannot 

be legall; paid out of an appropriation to pay Wllablllty 

In8uranoe.* The Leglslatnre la presumed to have known 

the dliferenoe between the two ends of insurance and 

the obamotar of rI8k8 belonging to each. 

While ue hate dsoided that the olalm for the premium on this polloy oannot be paid out of the approprlatioa reterred to, aad that the 8ame wa8 properly refused 

by the Caiptrollsr, ue will dlsou8s th8 ohamoter of the 

insurance smbrao8d in Seotloaa S, 4, and 6. 

If it be oonoeded that the ObligatIoa afi8umed by 

the company la said Seotion8 may be olassed as "lIabIllty 

insuranoe," then auoh obllgetione are ab8OlUtely ralusless to the aseured tor maooa8 which we wIl1 aow oon8ider. 

In the first plaos, the aotual beneflolary 18 not the 

wTexaa Prison Board and/or Texas Prison System and/or It.8 

Eleoted or Appointed Oiiloerr,a but the State Of Texas. 

It is the State's property that la desorlbed ln the policy 

end it would be It8 property that would be damaged Or 
):I-. D. W. St8k88, Page #8. 

destroyed In the event of an aooldent. The olalm ror 

the premium is againet the State's funde. The State 

of Terse should have been named In the polloy ao tha 

"A88UCad." The ioregolag statement, of oouree, appllea 

to the polloy as a whole. 

Under Seotioaa 3 and 4, the Company is only obligated 

to pay to tha A68urad (whloh wa mutit aseums is the Stats 

Of Texam) auoh amounts 66 the A88Ured shall beoome obllcats4 to pay by reason oi its lIabllIty for 1086 on the 

property or Others, or ror parson61 injUrh8 to Other8, 

eto. The 6rrtt0t or this agmwneat IS that if thera Is 

no llabIllty oa the part or the State, there la aona 

on the part oi the Oampany. Tha Ompaay Is only obllgated to pay to the State or to thO86 who suffer loss under 

tha teams oi the oontraot auoh auras as the State shall 

b8 obligated to pay by reason of its llablllty to auoh third 

rmr8oaa. 

It la now the astabliahad~law or this State that 

tha Stat6 la aot liable for the torte or nagllgenoa oi 

Its OrriOerB,- agents or 68nanta engaged in the periormsnoa 

or a gotenuseatal fiaotlon uhlaaa it has rirst axpra8aly 

886tUUed auah llabIlIty. Brook v. State, 58 6. W. (2d) 

534, error reruaad; Gothsr v. State at al, 106 8. W. (Zd) 

1104, and the authorities there oltad. Suoh liability, 

the State has navar assumed. Brooks 'I. State, aupr8. 

It has provided Uorbaen*a Caapomatlon Iaauranoe ior oertala olanaae oi tha Highway Dspartmaat*a employaa, (Art. 

66746 et 88q., Vornoa'a Texas Btatutsa, 193S Supp.) rhloh 

statutes hare no l pplloatloa here. 

The emotion aad operation 0r prlaona 

and jalla, whathar by tha Stats, a oounty or 

a munlolpallty, is purely a governmental runotlon, being an lndlapaaaabla part of the adminiatratlon or the orlmlnal law." Corbatt v. 

St. Vlnoant*a Industrial Sohool., 177 N. Y. 16, 

68 N. E. 997; 21 R.C.L. 1168. 

It la also a wall established ale of law that in tha 

abaaaoa ol a statute, a state la not liable to a oonviot 

ror InjurIea l uatalaad by him as a result of the neuligenoe 0r a prison employe, whether the oonviot is working 

OUt8i.46 or Ins148 the place Of iJRprI8o!Iment. clodrelter 
t!r. D. W. Stnkes, Fage #O. 

VB. State, 80 N. C. 51, 41 Am. Rep. 440; Lewis '1. 

State, 96 N. Y. '71, 41 Am. Rep. 607; 21 R. C. L. 1182. 

Should an "aooIdentR oocur to the "object8R ineumd, 

resulting la loss or property to others, in lnjurlea to 

ooavIota, 8mploye6, and to other persons, what la the 

State's llablllty? 

wAooldentm is an event whloh ha8 happened wlthout 

a party.8 romelght or foreknowledge or without "faultai the person who is ohargad. It is a oatastropha 

tiloh has oooumd wlthout wnegligenoe" oa the Part of 

either party. SO Tex. hr. 693, Sec. 20. In the case 

of Dallas RaIlray & TermIn Co. '18. Allen, 43 6. 1. (2d) 

165, 170, error dbm.issed, the oourt aaid: 

-By l ooldent 18 meant auoh an unaXpaOt8d 

oatastrophe as oooura without any aas* being 

to blema ror it; that la, without anybody's 

being guilty of.aegllgeaoe in doing or per-. 

mlttlng to be done or amittlng to do the 

particular thing that 04N8ed auah aaaualty.w 

The rule or non~llablllty ror parson81 injuries 

reoelved or damages to property auetained as result Of 

aoaldent is utnounoed by the Ooawileaion Of Appeal in 

the case of Eberaole ~8. Sapp, 206 9. W. 156, to be: 

"33 the injury reaultl%g rrom the aot could 

have been reasonably antlolpated or foreeesa 

by an ordinary prudent Parson, la the axeralaa 

of ordluary oam, the oaaurmnoe la aot aaoldental. It, however, the injury oould not have 

been romeseen or aatlalpeted, it Is an aooldant 

ror whloh them 18 no legal redm88.” 

When an acoldent oooura resulting in lnjnry to Property or person there la ao legal lIabIlIty oa the part 

Or any one, hanoa no legal redress. Therefore, it nabmally rollae that the Stats would not be liable ior dasrage 

done to propsrty owned by another, or for pereonal lnjurlea sustained by its employee oonvlota, or any other 

person as a reeult 0r aa aaooldent;w whether auah aooldent 

wa8 unavoidabla or due to negligence. Thererote, under 

all seCtIons, exoept No. 1, of tha policy, II the state 
u,-. 3. T. St8ke8, Page #lo. 

IS not 80 liable, the Company 18 not liable. The proteatlon 

rhloh the polloy attempt8 to give the State is no protection 

whatever. Should the State pey the prcmlum, It would pay 

for only a 8UppO8ed protection, 

does not need, 

aomethlng It does not get, 

and already h88 beOaU88 Of it8 sovereignty. 

State v. Bnmnan et ux, 111 9. W. (24) 347, error refueed. 

You are advieed that It Is OUT opinion thet the premium 

on the polloy Under aonaIderatIoa nray not be legally paid 

from the atxrrent appropriation made to the Texas Prlaoa 

system to pay alIabIllty insurance pr8mIum8.W 

Yours very truly