GROVER SELLERS ASIJWTIN 11. -l-lKuAs Overruledby 1s A-"lNr.TY

"liNIC"‘k.. 

### s-55 (1953)

Hon. E. A. Hickeraon CountyAuditor Montgomery County Conroe,Texas

Dear Sir: Opinion

### mo. o-7185

Re: Liability of the County for the negligence of its agents in connectLouwith the operation of a county airport.

We are In receI.ptof your letter of recent date requesting the opinion of this department on the above statedmatter. We quote frola your letter as follows:

"The question has arisen in the Commissioners’ Court ofMontgomery 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 thisAct shallbe under the management and control of the governingbody of the city or the CommissionerstCourt of the county aoquirlng the same,which is hereby expressly authorized and empowered to Improve,maintain and conduct the same as anAir Port, and for that purpose to make and provide therein all,,neceasary or fit improvements and facilitiesand to fix such reasonable charges for the use thereof as such governing body
or Commissioners'Court shall deem fit, and to make rules and regulationsgoverning 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 suchAir Port and the facilities, struotures,and Improvementstherein, and no city or oounty shall be llable for injuries to personsresulting from or causedby 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 causedby any negligence,want of skill, or lack of care on the part of any governingBoard or Commlssionersl Court, officer, agent, servant or employee or other person with reference to the construction,improvement, management, conduct, ormaintenance of any suchAir Port or any structure, improvement,or thing of any characterwhatever, loaated therein
or conneoted therewith."

In the base of Christopherv. City of El Paso, 98 S.W. 2d, 394 (errorrefused) the Court held that the portion of the above quoted provisions ofArticle 1269h which exempted oities from liabilityfor injuries to persons causedby negligence of their operatingagents
was unconstitutional. The Court furtherpointed out that the operation of an airportby 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:

"

. . .vehave 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 operationthe same as other private corporationswould have been. We agree with appellee that a determinationof 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 operateairportsmade the exercise of suchpower a governmental function.

"The operation of the airportbeing the exercise of a proprietary function,we next approach the question of the constitutionalityof the provisions of the provisions ofArticle 1269h, B 3, purporting to exempt cities from liability for injuriesto persons causedby 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 objectionto 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 contravenesths equal protection clause of the FourteenthAmendment to our Federal Constitution, seeFrost v. CorporationCommission, 

### 278U.S. 515, 49 S. Ct. 235, 245, 73 L. Ed. 

### 483;Smith v. Cahoon, 

### 283u. S.'

### 553,51 s. ct. 

### 582, 75 L. Ed. 

### 1264;Lossing v. Hughes (Tex.Clv.App.) 

### 244 S. Ii.

### 556.

"Thatthe provision violates the due process clause of our own Constitution, seeBeaumontTraction Company v. State, 

### 57Tex. Clv. App. 

### 605, 122 S-W. 

### 615; City ofWichita Falls v. Lipscomb (Tex.CFv.App.) 

### 50 S.W. (2d) 

### 867 (writrefused); City ofAmarillo v. Tutor (Tex.Corn.

App.) 

### 267 S.W. 

### 697.

"Wedo 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 thatmain purpose."

We note that the variousprovisions ofArticle 1269h are applicable to countiesas well as to cities. It Is therefore our ooinlon that when a countv ooerates an airport under the authority ofArticle 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 (errorrefused) that when the State engages in a proprietarybusiness, the State is liable for injuries sustainedby reason of the negligence of its agents in connectlonwith 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 enterprisewhich is usually carried on by individualpersons or companies, it voluntarilywaives its soverign character, and is subject to like regulations with persons.. .

Hon. E. A. Hickerson - Page 4

engaged in the same calling.'"

After carefully consideringthe variousprovision3 ofArticle 1269h and in view of the holding in the case of Christopherv. 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 sustainedby 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 sustainedby 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 thencase of State v. Elliott, Supra, it is our opinionthat when the county engages in the proprietary activity of operatingan airport under authority granted to said countyby the Legislature, it Is liable for injuries sustainedby reason of tortlous or negligent acts of its agents or employees.

Since, under the provisions ofArticle 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 sustainedby reason of the negligent or tortious acts of its agents or employees In connectionwith the operation of such airport, it is our further opinion that the Commissioners'Court has the implied power to employ reasonablemethods to protect the county against such liability. You are therefore advised that thematter of carryingpersonal and public liability insurance In connection with the operation of the county airport is within the sound discretion of the CommissioneratCourt.

We trust that the above and foregoingwill satisfactorilyansweryour inquiry.

Yours very truly ATTORREY GERERAL OF TEXAS

JAE:djm:mjs

APPROVEDAl% 10'1946 /s/Grover Seller ATTORREY GERERAL OF TEXAS

. . . 

### BY /s/J. A. Ellis J. A. Ellis Assistant APFROVED OPINION COMMITTEE BY BWB CRAIRMAR