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 onthe Capitol Complex grounds under either the provisions ofthe 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, .incarrying out its groundskeeping responsibilities inthe area ofthe Capitol Complex, uses a number ofpower driven lawn mowers which create apotential hazard ~tovisitors, 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 ofliability insurance. Clearly the Board of Control is a “unit of government” as that term is defined in 52(l) of the Tort Claims Act. Section 9of 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, inpart:

“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 ofthe use’, operation and maintenance of such automobiles, trucks, tractors, power equipment . . . used or which may be used inthe operation of such Department or Agency. Such insurance shall be provided

p. 732TheHonorable Homer A. Foerster, page 2 (H-158)
by the purchase ofa policy orpolicies 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 ofthe department for which such employee is employed. ‘I Each of these statutes is, inour opinion, sufficient “pre-existing law” to satisfy the requirements ofArticle 3, $44 ofthe Constitution. Austin National Bank v. Sheppard, 71S.W. 2d 242 (Tex. 1934); Atto.rney General Opinion V-84 (1947). The Legislature, inthe Appropriations Act for fiscal 1974 and 197.5(House Bill 139, 63rd Leg., 1973), among its general provisions ($54 ofArticle V) provides: “None ofthe funds appropriated inthis Act may

be expended for the purpose ofpurchasing policies ofinsurance 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 topurchase 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 onthe Capitol Complex grounds under either the provisions ofthe Texas Tort Claims Act, Article 6252-19, Vernon’s Civil Statutes or Article 6252-19a, Vernon’s Civil Statutes? ”

p. 733The 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 ofthe Board of Control from liability growing out ofthe operation ofpower driven lawn mowers and edgers used ingroundskeeping on the Capitol Complex grounds but not to insure the liability ofthe Board of Control itself. There can be no doubt but that the Legislature has the right, in its appropriations act to limit the use offunds 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 ofthe opinion, therefore, that no funds appropriated inthe Appropriations Act for 1974 - 1975, may be used topurchase insurance under §9ofArticle 6252-19, V. T. C. S. We have no knowledge ofany other funds available to the Board of Control out ofwhich such insurance might be purchased. SUMMARY The Board of Control may purchase liability insurance covering the liability of its officers and employees arising out ofthe operation ofpower driven lawn mowers and edgers used in groundskeeping onthe 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