Honorable W.K. McClaln 

Criminal District Attorney 

Georgetown, Texas 

Dear Sir: 

We are in 

In you eeek.our 

Opinion No. 0-1418 

Re: Can an independent school dletrlct 

take out,.an insurance policy cover- 

.lng bodily Injury and bua damage 

in .connectlon.wlth Its operation 

of echool busses for the traneportatlon of'chlldren? Where euch a 

policy has been taken out may an 

injured etudent recover upon euch 

a policy? 

reaeipt of~yourletter of September.l, 1939, whereopinion on thee following queetlone: 

"In view of the fact that a school dlatrlct 1s not 

liable for personal Injury from a school bus accident, 

le a school board mleusln tax money to take out personal Injury insurance? 

enclosed policy.) 

Such ae represented by the 

"In ca8e of' accident can the 1njured:party recover 

on.the contrackln view of:-:the rlder,attached to the 

insurance policy enclosed herewith?" 

The policy which you enclose obligates the Insurance company 

to "pay on behalf of the insured all sUma which the Insured ahall 

become 

by law" 

obligated to pay by.reaeon of the llablllty imposed upon him 

for.damagea to:person or property-through the operation of 

school bussee. Uniform RZder No. 101, which is attached to.the 

POllCY, contains, among other things, the following provisions: 

,, 

"It i&agreed that~'%n the event of alalm.arlslng 

-under:aoveragee;~of..bod11yg.njury~llablllty and ,property damage~~~llablllty~afforded uner.3hls po1lCy; the 

c~rnpany~will*~.not lnt&poee~the.defense that the- inaured isengaged ;in the,performance of a~governmental 

~ctlon;~"except.;Int~tho~se casea"cohere.ltB' action will 

~lnvolve,the .lneured in a poeeible loss~not-~wlthln the 

protection of thla Insurance." 
Honorable W.K. McClaln, Page 2 O-1418 

Subsection (2) of Paragraph II provides that the Insurance 

company shall defend In the name of the Insured and on his behalf 

any suit alleging injury or destruction and seeking damages which 

are covered by the policy. Under "Special Cond&tlons", the policy 

provides that "no action shall lie agalnst the ompany unless, as 

a condition precedent thereto, the Insured shall have fully complied with all the conditions hereof, nor until the amount of the 

Insured's obligation to pay shall have been finally determined 

either by judgment against the Insured after actual trial or by 

written agreement of the Insured, the claimant, and the company..." 

Article 2687a, Vernon's Annotated Texas Statutes, reads In 

part as follows: 

"The trustees of any school district, common or 

independent, making provision for the transportation 

of pupils to and from sohool, ehall for such purpose 

employ or contract with a responsible person or firm 

. . , . . . . . The drivers of all school transportation 

vehicles shall be required to give bond for euoh amount as the board of trustees of the district may 

rescrlbe, not less than two thousand dollars 

Ii& 000) , payable to the district, and conditioned 

upo; the faithful and caritil dleoharge of their 

duties for the proteotlon of pupils under their 

charge and faithful performance of the oontract with 

said school board, . . ,I’ 

Another Artlole whloh should be oonstrued In connectlon with 

the qu$stlon presented in your letter is Artlole 2827, Vernon's 

Annotated Texas Statute, which provides that local funds of independent school districts may be expended "for the payment of lnsurante premiums". We are unable to find any other statute which 

might be oonstrued as authorlelng a school board to take out and 

pay for such an Insurance pollay as Is described In your letter. 

Yo&flrst question therefore may be divided into two parts, 

as follows, to-wit: (1) 'Does said Article 2827 provide express 

authority for the expenditure of local school funds In payment of 

Insurance premiums on the type of policy described in your letter? 

(2) If not, is such authority implied from the express statutory. 

authority to operate school busses? 

In a letter opinion to Mr. W.E. James, First Assistant State 

Superlntendent of Public Instruction, under date of September 16, 

1936, this department held that there was neither expressed nor 

Implied authority to expend public school funds for this purpose. 

In another letter opinion by this department addressed to the same 

person, under date of August 17, 1936, It was pointed out that the 

provlslon In the statutes requiring a bond of bus drivers for the 

faithful performance of thelr duties provided an adequate mean8 for 
Honorable W. K. M&lain, Page 3 o-1418 

compensating such school children for damages resulting from lnjuries through the negligent operation of such busses, and such 

means was exclusive, and that, It cannot be assumed that there is 

sn Implied power to provlde against such contingencies In a dlfferent manner. A careful study of the questlone presented leads 

us to the same concluelon. 

It Is now well settled that a school district Is not liable 

for the torte of Its agents or employees which are committed In 

the performance of a governmental function. The operation of a 

school bus for the transportation of pup118 to and from school is, 

In our opinion, a governmental function. It Is apparent, therefore, that the protection afforded under the policy enclosed In 

your letter Is not for the direct benefit of the school dlstrlct 

but Inures to the benefit of three classes of people, to-wit: (1) 

The driver, whose llablllty for damages resulting from his negllgence In the operation of the bus Is protected by the policy. (2) 

The school children who rlde.on the bus. (3) Any other person 

who may reoeive an injury to his person or damage to his property 

through negligent operation of the bus. 

It is our opinion that Insurance policies for whloh premiums 

are authorized to be paid by Article 2827 out of looal school 

funds are such pollalee as protect the district Itself, from 

pecuniary liability or loss. Ordinarily it Is {he purpose of lnsurante polloles to protect the insured from liability orloee and not 

to provide a means of compensating the third parties for lnjurles 

which they may receive at the hands of the Insured. We cannot belleve'that the Legislature Intended that the funds of the school 

districts should be expended to pay Insurance premiums for the 

protection of third parties against damages for which the school 

district itself could not be held liable. In our opinion the 

authority so to expend public funds 1s not found in said Article 

2827, nor do we believe it to be Implied from the power to operate 

school busses and employ school bus drivers found in Article 

2687a. Implied powbrs are founded upon reasonable necessity. 

Such necessity springs from the fact that the expressed powers 

cannot be fully executed or enjoyed unless supplemented by such 

implied powers. In this case the district receives the full 

benefit of the expressed statutory authority to operate school 

busses without the nzcesslty of taking out this type of insurance. 

Doubtless the Legislature could authorize school dlstrlcte 

to expend local school funds for Insurance premiums to protect its 

school children against Injury, and Its employees against both 

llablllty and Injury, from the operation oflts school busses. We 

do not believe that the Legislature has as yet exercised its 

authority to confer upon school districts this authority. 

We Bpe unable to agree with the Tennessee Supreme Court In 

the cases of Marion County vs. Cantrell, 61 S.W. (2d) 477, and 
. 

Honorable W.K. McClaln, Page 4 o-1418 

Rogers vs. Butler, 92 S.W. (26) 415, wherein the court h~olds that 

under a similar statute authorizing school districts to require a 

bond of bus drivers, the district may elect to take out a public 

llablllty and property damage Insurance policy In lieu thereof. 

The driver of a school bus owes to the children wh,om he transports 

the highest degree of care consistent with the practical operation 

of the bus. Phllllps vs. Hardgrove, 296 Pac. 559; Sheffield vs. 

Lovering, 180 S.E. 523. The drivers' duty extends beyond the 

actual operation of the school bus to such matters as seeing that 

children alighting from the bus do not walk Into the path of another and oncoming motor vehicle. Robinson vs. Draper, 106 S.W. 

(2d) 825, 127 S.W. (2d) 181 (comm. App.). The statutory bond required of bus drivers doubtless covers broader llabllltles and 

duties of the driver than are covered by the policy which you enclose In your letter. On the other hand, the policy doubtless 

covers llabilltles of the bus driver to third parties which would 

not be covered by the statutory bond. Such a policy, therefore, 

Is not a proper substitute for the required bond, and the school 

trustees should in every case, requlre bus drivers to furnish 

adequate bonds. 

For the reasons stated, we answer your first question in the 

affirmative. It, therefore, becomes unnecessary to answer your 

second question. 

We enclose the insurance policy herein. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Victor W. Bouldln 

Victor W. Bouldln 

Assistant 

VWB:FG:wc 

APPROVED SEP 25, 1939 

a/ W.F. Moore 

FIRST ASSISTANT 

AT'l!OFU?EY GENERAL 

Approved Opinion Committee Q e/t3WB Chairman