The Honorable Homer A. Foerster 

Executive Director 

State Board of Control 

P. 0. Box 13047, Capitol Station 

Austin, Texas 78711 

Dear Mr. Foerster: 

Opinion No. H- 158 

Re: May liability insurance 

be procured by the Board 

of Control for power driven 

lawn mowers and edgers 

used for groundskeeping 

on the Capitol Complex 

grounds under either the 

provisions of the Texas 

Tort Claims Act, Article 

6252-19, V. T. C. S. , or 

Article 6252-19a, V. T. C. S. 

Your letter requesting our opinion points to the fact that the Board of 

Control, .in carrying out its groundskeeping responsibilities in the area of the 

Capitol Complex, uses a number of power driven lawn mowers which create 

a potential hazard ~to visitors, State officials and State employees. You note 

that both the Texas Tort Claims Act (Article 6252-19, V. T. C. S. ) and Article 

6252 -19a, V. T. C. S. , authorize the purchase of liability insurance. Clearly 

the Board of Control is a “unit of government” as that term is defined in 5 2(l) 

of the Tort Claims Act. Section 9 of that Act authorizes all units of governm&t “to purchase policies of insurance providing protection for such units 

of government, their officers, agents and employees agkinst claims brought 

under the provisions of this Act . . . ” 

Article 6252-19a, V. T . C. S. , provides, in part: 

“Section 1. The State Department or Agencies who own 

and operate motor vehicles . . . shall have the authority 

to insure their officers and employees from liability 

arising out of the use’, operation and maintenance of such 

automobiles, trucks, tractors, power equipment . . . 

used or which may be used in the operation of such 

Department or Agency. Such insurance shall be provided 

p. 732 
TheHonorable Homer A. Foerster, page 2 (H-158) 

by the purchase of a policy or policies for that 

purpose from some liability insurance company 

or companies authorized to transact business in 

the State of Texas . . . . 

‘1. . . 

“Sec. 4. Such payments are to be charged against 

the maintenance fund of the department for which 

such employee is employed. ‘I 

Each of these statutes is, in our opinion, sufficient “pre-existing law” 

to satisfy the requirements of Article 3, $44 of the Constitution. Austin 

National Bank v. Sheppard, 71 S. W. 2d 242 (Tex. 1934); Atto.rney General 

Opinion V-84 (1947). 

The Legislature, in the Appropriations Act for fiscal 1974 and 197.5 (House 

Bill 139, 63rd Leg., 1973), among its general provisions ($ 54 of Article V) 

provides: 

“None of the funds appropriated in this Act may 

be expended for the purpose of purchasing policies 

of insurance covertng claims arising under the Texas 

Tort Claims Act. ” 

Claims which arise under the Texas Tort Claims Act are claims against 

units of government and not against their employees or officers. There is 

a distinction between appropriations for claims arising under the Tort Claims 

Act and those arising under Article 6252-19a and the common law. Attorney 

General Opinion M-1215 (1972), despite a similar restriction upon use of 

appropriated funds, held that the Parks and Wildlife Department might use 

its funds to purchase insurance provided for by Article 6252-19a, V. T. C. S. 

Your precise question to us is: 

“May liability insurance be procured by the Board 

of Control for power driven lawn-mowers and edgers 

used for groundskeeping on the Capitol Complex grounds 

under either the provisions of the Texas Tort Claims 

Act, Article 6252-19, Vernon’s Civil Statutes or Article 

6252-19a, Vernon’s Civil Statutes? ” 

p. 733 
The Honorable Homer A. Foerster, page 3 (H-158) 

We ‘answer your question that insurance may be purchased pursuant to 

Article 6252-19a, V. T. C. S. , to insure the officers and employees of the 

Board of Control from liability growing out of the operation of power driven 

lawn mowers and edgers used in groundskeeping on the Capitol Complex grounds 

but not to insure the liability of the Board of Control itself. 

There can be no doubt but that the Legislature has the right, in its appropriations act to limit the use of funds therein appropriated if such limitations 

do not conflict with or amount to general legislation. Conley v. Daughters of 

the.Republic, 156 S. W. 197 (Tex. 1913); Moore v. Sheppard, 192 S. W. 2d 559 

(Tex. 1946) and see Attorney General Opinion M-280.(1968). We are of the 

opinion, therefore, that no funds appropriated in the Appropriations Act for 

1974 - 1975, may be used to purchase insurance under § 9 of Article 6252-19, 

V. T. C. S. We have no knowledge of any other funds available to the Board 

of Control out of which such insurance might be purchased. 

SUMMARY 

The Board of Control may purchase liability insurance 

covering the liability of its officers and employees arising 

out of the operation of power driven lawn mowers and edgers 

used in groundskeeping on the Capitol Complex, but may not 

use funds appropriated for 1974 and 1975 to purchase insurance 

insuring its own liability under the Texas Tort Claims Act. 

Very truly yours, 

rney General of Texas 

. 

DAVID M. KENDALL, Chairman’ 

Opinion Committee 

p. 734