GROVER SELLERS ASIJWTIN 11. -l-lKuAs Overruled by 

1s 

A-"lNr.TY "liNIC"‘k.. s-55 (1953) 

Hon. E. A. Hickeraon 

County Auditor 

Montgomery County 

Conroe, Texas 

Dear Sir: Opinion mo. o-7185 

Re: Liability of the County for 

the negligence of its agents 

in connectLou with the 

operation of a county airport. 

We are In receI.pt of your letter of recent 

date requesting the opinion of this department on the 

above stated matter. We quote frola your letter as follows: 

"The question has arisen in the Commissioners’ 

Court of Montgomery County, with reference to carrying Insurance for personal and property damage in 

the operation of an alrport. 

“My lmpresslon is that the county is not in 

any way res$onslble for this class of claim against 

the county. 

Article 1269h, Vernon's Annotated Civil Statutes, 

In part, provides: 

"Sec. 3. Any ALr Port acquFred under and by 

virtue of the terms of this Act shall be under the 

management and control of the governing body of the 

city or the Commissioners t Court of the county aoquirlng the same, which is hereby expressly authorized and empowered to Improve, maintain and conduct 

the same as an Air Port, and for that purpose to 

make and provide therein all,,neceasary or fit improvements and facilities and to fix such reasonable 

charges for the use thereof as such governing body 

or Commissioners' Court shall deem fit, and to make 

rules and regulations governing the use thereof. 

All prooeeds from such charges shall be devoted 
,-. 

Hon. E. A. Hickerson - Page 2 

exclusively to the maintenance, upkeep, improvement and operation of such Air Port and the 

facilities, struotures, and Improvements therein, 

and no city or oounty shall be llable for injuries 

to persons resulting from or caused by any defective, unsound or unsafe condition of any such 

Air Port, or any part thereof, or thing of any 

character therein or resulting from or caused by 

any negligence, want of skill, or lack of care on 

the part of any governing Board or Commlssionersl 

Court, officer, agent, servant or employee or other 

person with reference to the construction, improvement, management, conduct, or maintenance of any 

such Air Port or any structure, improvement, or 

thing of any character whatever, loaated therein 

or conneoted therewith." 

In the base of Christopher v. City of El Paso, 

98 S.W. 2d, 394 (error refused) the Court held that the 

portion of the above quoted provisions of Article 1269h 

which exempted oities from liability for injuries to 

persons caused by negligence of their operating agents 

was unconstitutional. The Court further pointed out that 

the operation of an airport by a city was a 

rather than a governmental function and that was 

therefore liable for the negligence of its agents in connection with the operation of such airport. We quote the 

following language from the Court's opinion: 

" . . .ve have concluded that the operation of 

the airport in this case was a proprietary fun&ion 

and that the city was liable for the negligence of 

Its agent in such operation the same as other 

private corporations would have been. We agree with 

appellee that a determination of whether a city is 

acting in a governmental or proprietary capacity 

depends, in a measure, upon the facts of the particular case; but we cannot agree that the Leglslature In granting the power to incorporated cities 

In Texas to own and operate airports made the exercise of such power a governmental function. 

"The operation of the airport being the exercise of a proprietary function, we next approach the 

question of the constitutionality of the provisions 

of the provisions of Article 1269h, B 3, purporting 

to exempt cities from liability for injuries to 

persons caused by the negligence or want of skill or 

care of their agents in such operation. . . . 
-, 

Ron. E. A. Hlckerson - Page 3 

"Appellant's 

provision Is that 

of the Amendments 

seoond objection to the exemption 

It violates section 1, article 14, 

to the Federal Constitution, and 

sections 3, 13, and 19 of article 1, and section 26 

of article 16, of the Texas Constitution. o D e O 

"That such a statute contravenes ths equal protection clause of the Fourteenth Amendment to our 

Federal Constitution, see Frost v. Corporation Commission, 278 U.S. 515, 49 S. Ct. 235, 245, 73 L. Ed. 

483; Smith v. Cahoon, 283 u. S.' 553, 51 s. ct. 582, 

75 L. Ed. 1264; Lossing v. Hughes (Tex. Clv. App.) 

244 S. Ii. 556. 

"That the provision violates the due process 

clause of our own Constitution, see Beaumont Traction 

Company v. State, 57 Tex. Clv. App. 605, 122 S-W. 615; 

City of Wichita Falls v. Lipscomb (Tex. CFv. App.) 

50 S.W. (2d) 867 (writ refused); City of Amarillo v. 

Tutor (Tex. Corn. App.) 267 S.W. 697. 

"We do not concur in the contention that the 

invalidity of the exemption provision, in the absence 

of a saving clause, renders the entire act unconstitutiorlal. While it is true that the provision Is 

incidental to the main purpose of the act, yet it is 

capable of being separated from the act without 

materially affecting that main purpose." 

We note that the various provisions of Article 

1269h are applicable to counties as well as to cities. It 

Is therefore our ooinlon that when a countv ooerates an 

airport under the authority of Article 1269h,*such county 

is performing a function identical in nature with that which 

the Court held in the above oltea case was proprietary in 

character. 

We point out further that the Court held in the 

case of State v. Elliott, 212 S.W. 695 (error refused) 

that when the State engages in a proprietary business, 

the State is liable for injuries sustained by reason of 

the negligence of its agents in connectlon with the operation of such proprietary enterprise. The reasoning of 

the Court in so holding si succinctly stated In the following language contained in the Gourt"s opinion: 

"When a State engages in an enterprise which 

is usually carried on by individual persons or companies, it voluntarily waives its soverign character, 

and is subject to like regulations with persons 
. . . 

Hon. E. A. Hickerson - Page 4 

engaged in the same calling.'" 

After carefully considering the various provision3 

of Article 1269h and in view of the holding in the case of 

Christopher v. City of El Paso, supra, It Is our opinion 

that when the county owns and operates an airport, it is 

engaged in a 

=F== 

rather than a governmental function. 

Although it has een held generally that the county is not 

liable for injuries sustained by reason of the tortlous or 

negligent acts of Its agents or employees In the absence of 

a specific statute creating such liability, we note that in 

each instance where our courts have passed upon such matters 

the county was engaged in a governmental function. We are 

unable to find a case where our courts have passed upon the 

precise question as to the liability of the county for 

injuries sustained by reason of the negligence of Its agents 

or employees when the county Is functioning in a proprietary 

capacity. In view, however, of the holding in then case of 

State v. Elliott, Supra, it is our opinion that when the 

county engages in the proprietary activity of operating an 

airport under authority granted to said county by the Legislature, it Is liable for injuries sustained by reason of 

tortlous or negligent acts of its agents or employees. 

Since, under the provisions of Article 1269h the 

county Is authorized to own and operate a county airport, 

and in view of our holding that the county is liable for 

injuries sustained by reason of the negligent or tortious 

acts of its agents or employees In connection with the 

operation of such airport, it is our further opinion that 

the Commissioners' Court has the implied power to employ 

reasonable methods to protect the county against such 

liability. You are therefore advised that the matter of 

carrying personal and public liability insurance In connection with the operation of the county airport is within 

the sound discretion of the Commissionerat Court. 

We trust that the above and foregoing will 

satisfactorily answer your inquiry. 

Yours very truly 

ATTORREY GERERAL OF TEXAS 

JAE:djm:mjs 

APPROVED Al% 10' 1946 

/s/ Grover Seller 

ATTORREY GERERAL OF TEXAS 

. . . 

BY /s/J. A. Ellis 

J. A. Ellis 

Assistant 

APFROVED 

OPINION 

COMMITTEE 

BY BWB 

CRAIRMAR