September 17, 1969

Dr. J. W. Edgar Commissioner **of** Education Texas EducationAgency Austin, Texas 78711

Dear Dr. Edgar: Opinion No.

### M-475
Re: Questions concerning the applicability of the Tort ClaimsAct **(Acts** 61st Leg., R.S. 1969, Ch. 292,p. S74), to school districts.

You have requested the opinion of this office regarding certain questions involving the Tort Claims **Act,** codified as Article 6252-19,Vernon's Civil Statutes. These questions are paraphrased for convenience as follows: 1. In Section **19A.** applicable to school districts, does the term "motorvehicles* include "motor driven equipment" other than schoolbusses7 2. (a)Where under Section 9 a school district purchases liability insurance to **cover** paid employees **for** torts committed in the scope of their district employment, is the employee therebyprotected from the imposition of further judgment for'damages? (b)Where under Section **9 a**  school **district** does not purchase liability insurance to cover its school bus drivers and requires as a condition of employment that the bus driver shall purchase liability insurance,may the district pay the premium thereon from its localmaintenance funds7



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(c) In situations referred to in (a) and (b) above, is the bus driver’s bond prescribed in Article 2687a also required? **3.** (a) May the premium for liability insurance legallybe paid out of the transportation fund, if any, of the school district? Stated another way, does the Tort Claims **Act** contemplate that such premiums shall be paid out of local district maintenance funds as distinguished **from** the Diatrict Transportation Fund or County Transportation Fund (Article 2922-15, Sec. 2) as the case may be, whose limited allocation source is from State appropriations? (b)Where under Section 2(l) **of** Article 2922-15, the county school board (notthe school district) maintains and operates a county unit school bus **system,** is such county operating authority.authorised to purchase such liability insurance7 If yes, who pays the premiums and from what funds?
In connection with your first question, the following is quoted from the Tort Claims **Act:**

**“ Sec.**  **3.** Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of **his** employment or office arisinc from the operation or use of a motor-driven vehicle and motor-drive equipment,
..." "Sec. 19A. The provisions of this Act shall not apply to school districts except **as to**  **motor** vehicles." (Emphasissupplied.)
You have indicated concern over the proper interpretation 'of**the** limitation of liability granted to school districts by Section 19A, aupra. You indicate that some school districts

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### 2368

-Dr. J. **W.** Edgar, page 3 

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are of.the opinion that liabilityextends only to schoolbus operations,while others are **of** the opinion liabilityextends to the operation **of** loaned **or** owned driver education cars, riding lawnmowers, tractors used invocational agriculture courses,and other motor +iven equipment. Section 19A clearly limits the liabi,lity of school districts to acts of negligence involving,motorvehicles. For the purpose **of** regulatingvehicles in this State the Legislature **has** made the followingdefinitions inArticle 6675a-l,.Vernon'sCivil Statutes:

"(a)'Vehicle'means every device in, or by which any person or property is, or may be transported or drawn upon a public highway, except devices moved only by human **power** or used exclusively upon stationary rails or tracks. "(b)'Motorvehicle' meansevery vehicle, as herein defined, **that** is self-propelled."
In answer to your specific question, you are advised that the term "motorvehicles" extends beyond school busses, and includesat least all vehicles **that** may fallwithin **the** definition given inArticle 6675a-1, supra,but does.not include "motor driven equifient" unless such equipment constitutes a "vehicle".

. Your question Number 2(a) is restated for clarity: Where under Section 9 a school district purchases liability insurance to cover paid employees for torts committed in the scope of their district employment, is **the** employee thereby protected **from** the ,impoaition of further judgment **for** damages?"
In answer **thereto,** you are advised that it is the view of thisoffice **that ’** **the** presence of liability insurancehas no baaring upon **the** matter of **the** imposition **of** damages against a governmental employee. The only limitation on employees’ liabilityprovided by the Tort Claims Act is **set forth**  in Section 12(a),to-wit*Dr. J. W. Edgar, page 4 

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'The judgmentor settlement in an action or claim under this **Act** shall constitute a complete bar to any action by the claimant,by **reason** of the same subjectmatter;againat **the** employee of a unit of government **whose** act or omissiongave rise to **the** claim."
Your question Number 2(b) is restated: 'Whereunder Section 9 a school district does not purchase liability insurance **to** cover its schoolbus drivers and requires as a condition of employment that the bus driver ahallpurchase liability'insurance,may the district pay the premium thereon **fro_** its local maintenance funds?"
In the event a school district determines that liability insurance shouldbe purchased,we would point out that such insurance stiould

provide coverage in the manner set forth in Section 9 of the Tort Claims **Act,** i.e., "...forsuch units of government, their officers, agents and employeesagainst claims brought under the provisions of thisAct, ...* We would also observe that a general liability policy, such aswould be written **for** an individual,provides **coverage** for a broader liability than ia.impoaed in **the** Tort Claims **Act. We**  findno authority in law-to 'wrmit a achool,district to pay **for** an individualemployee's liability insurancepremium,under the circumstances related. In **the** absence **of** such authority,you **are** advised that the district may **not** pay the insurance .premiuma**from** its localmaintenance fundswhen it does not purchase liability insurance to cover its schoolbus drivers.
Your questionNumber 2(c) is restated:
"In situations referred to in (a)and (b)above, is **the** bus driver'sbond prescribed inArticle 26S7a also required?" Article 2687a,Vernon’s Civil Statutes, isquoted inpart as follower

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*a

...Thedrivers of all school tranaportation vehicles shallbe required to give **bond for**  such amount as the **Board of**  Trustees of the district **may** prescribe, **not** leas than $2,000.00, payable to the district, and conditioned unon **the** faithfuland **careful** diacharce **of** their duties for **the** Protection of the nupila under their charqe and faithfulverformanci of the contractwith School Board:
...'I (Emphasisaup~lied.) Section 20 **of** the Tort Claims **Act** reads as **followat** "All laws or parts of Saw, and all enactments, rules and regulations or any and all units **of** gwernment, and all organic laws of such units of government, in conflict herewith are hereby repealed,annulled and voided, to **the** extent of such conflict."
In view of the fact that the terms of thebond requiredby Article 2687a, aupra, cwer aifuationabeyond the scope of the Tort Claims **Act,** you are advised **that** it is **the** opinion of this office **that** the said **Article 2687a**  is not in conflictwith the Tort Claims **Act** and is not repealed thereby. The requirement of abond of not leas than $2.000.00 **for** school **bus** drivers remains in full force and **effect.**
Your question Number 3(a) .iarestated: "May the premium for liability insurance legally be paid out of **the** transportation fund, if any, of **the** school district?' Stated another way, does **the** Tort Claims **Act** contemplate that such premiums shallbe paid out of localdistrict maintenance funds as distinguiahed **from** the District Transportation Fund **or** County Tranaportation'Fund (Article 2922-15, Sec. 2) as the case may be, whose limited allocation source is from State appropriations?"

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Your questionNumber **3(b)** is restated: "Whereunder Section Z(1) of Article 2922-15, the county schoolboard (not'theschool district)maintains and operates a county unit schoolbus system, is such county operating authority authorized to purchase such liability insurance? **if** yea, who pays the premium and **frpm** what funds?"

_ In making a reply to these questions,we must first note that **there** is no requirement that liability insurancebe purchased under **the** Tort Claims **Act.** That statute simply authorizes the purchase of such insuranceat the discretion of.thegovernmental unit. The statute is silent as **to** any method **of** financing insurance premiums. Since such expenditures are authorized,but not required,we are **of** the view that they should **be** considered as general operating expenses of the governmental unit, and payable out **of** any fund available **for** thosepurposes. With regard to the District or County Transportation Fund,governedby Article 2922-15,Vernon's Civil Statutes,we note that Section 2(b) thereof makes **a** base allowable **for the**  coats of maintenance, operation, salaries,depreciation, etc., for **the** conduct of a school bus system. Since the cost of liability insurancewould be part of **the** coat of the operation of such a system, it follows that the District or County Transportation Fund,could properlybe used **for** the proporfionate **share** of the total premium **that** represents schoolbus operation. * **SUMMARY** Section 19A **of the**  Tort Claims Act (Article 6252-19,**V.C.S.)** limits school district tort liability to acts of negligence involvingmotor vehicles. **A** "motorvehicle" at least includes any,vehicle coming within **the** definition set forth inArticle 6675a-1, **V.C.S.** The presence **of** liabilitv insurancehas no bearing upon the matter of **the** impositionof damages against a governmental employee. In the event **of**

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a damage suit against a governmental agency. **the** judgment **or** settlement in such suit constitutes a completebar to any recovery against the individualemployee involved in the incident. Section 12(a),Tort Claims **Act.** If a schooldistrict purchases liability insurance, thepolicy should be written in the t:rma **of the**  statute. The Tort Claims **Act** does not operate to repeal Article 2607a,V.C.S., and the bond required **of** a **school** bus driver **by** the said Article 2607a is still required. If it isdetermined that.liability insurance shouldbe purchased, **the** premiums thereformay properlybe paid out **of the**  District or County TransportationFund (Article2922-15,V.C.S.), as 

### an Operatingexpense **of** schoolbus service.
Yours9 ery truly,

General of Texas Preparedby Malcolm L. Quick **Aaaiatant** Attorney General **APPROVED**

**:** OpinionCommittee
KernsTaylor, Chairman GeorgeKelton,Vice-Chairman JackSparks AlfredWalker EaroldKennedy RolandAllen
-E P. **GRIFFIN** Stat **f** LsgalAssistant

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IiawTxo~ PHILLIPS ExecutiveAssistant
NOLR WHITE First Assistant