HonorableW.K. McClaln

CriminalDistrictAttorney Georgetown,Texas
Dear Sir:

We are in In you eeek.our Opinion No. 0-1418
Re: Can an independentschool dletrlct take out,.an

insurancepolicy 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, where

### opinionon thee

followingqueetlone:
"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? enclosedpolicy.) Such ae representedby the

"In ca8e of'

accident can the 1njured:party recover on.the contrackln view of:-:the rlder,attached

to the insurancepolicy enclosed herewith?"
The policy which you enclose obligates the Insurancecompany 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.damageato:person or property-through the operationof school bussee. Uniform RZder No. 101, which is attached to.the POllCY, contains,among other things, the followingprovisions:

,, "It i&agreed that~'%n the event 

### of alalm.arlslng -under:aoveragee;~of..bod11yg.njury~llablllty and ,property damage~~~llablllty~afforded uner.3hlspo1lCy; the c~rnpany~will*~.not

lnt&poee~the.defense that the-inaured isengaged ;inthe,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."HonorableW.K. McClaln, Page 2 O-1418

Subsection (2) of ParagraphII provides that the Insurance company shall defend In the name of the Insuredand on his behalf any suit alleging injury or destructionand seekingdamageswhich are covered by the policy. Under "SpecialCond&tlons",the policy provides that "no action shall lie agalnst the ompany unless, as a conditionprecedent thereto, the Insured shall have fully complied with all the conditions hereof, nor until the amount of the Insured'sobligationto pay shall have been finally determined either by judgmentagainst 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 trusteesof any school district, common or independent,

making provision for the transportation of pupils to and from sohool, ehall 

### for such purpose employ 

### or contractwith a responsibleperson 

### 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 districtmay 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 proteotlonof pupils under their charge and faithfulperformance**of** the oontractwith said school board,

. . ,I’ Another Artlolewhloh shouldbe oonstrued In connectlon with the qu$stlonpresented in your letter is Artlole 2827, Vernon's AnnotatedTexas Statute,which provides that local 

### funds of independent school districtsmay be expended 

### "for the payment of lnsurante premiums". We are unable to find any other statutewhich might be oonstruedas authorlelnga school board to take out and pay for such an Insurancepollay 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 expenditureof local school 

### funds In payment of Insurancepremiums on the type of policy described in your letter? (2) If not, is such authority implied from the express statutory. authorityto operate school busses?
In a letter opinion to Mr. W.E. James, First Assistant State Superlntendentof Public Instruction, under date of September 16, 1936, this departmentheld that there was neither expressednor Impliedauthority to expend public school funds for this purpose. In another letter opinion by this departmentaddressed to the same person, under date of August 17, 1936, It was pointed out that the provlslon In the statutesrequiring a bond of bus drivers for the faithfulperformance of thelr duties provided an adequatemean8 forHonorable W. K. M&lain, Page 3 o-1418

compensatingsuch school children for damages resulting from lnjuries through the negligent operationof such busses, and such means was exclusive,and that, It cannot be assumed that there is sn Impliedpower to provlde against such contingenciesIn a dlfferentmanner. A careful study of the questlonepresented 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 employeeswhich are committed In the performanceof a governmental function. The operationof a school bus for the transportation of pup118 to and from school is, In our opinion, a governmentalfunction. It Is apparent, therefore, that the protection affordedunder 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 damagesresulting from his negllgence In the operationof the bus Is protectedby the policy. (2) The school childrenwho rlde.on the bus. (3) Any other person who may reoeive an injury to his person or damage to his property through negligent operationof the bus.
It is our opinion that Insurancepolicies for whloh premiums are authorizedto 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 compensatingthe third parties 

### for lnjurles which they may receive at the hands of the Insured. We cannot belleve'thatthe Legislature Intended that the funds of the school districts should be expended to pay Insurancepremiums 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 schoolbusses and employ school bus drivers found in Article 2687a. Implied powbrs are founded upon reasonablenecessity. Such necessity springs from the fact that the expressedpowers cannot be fully executed or enjoyed unless supplementedby such impliedpowers. In this case the districtreceives the full benefit of the expressed statutoryauthority to operate school busses without the nzcesslty of taking out this type of insurance.
Doubtless the Legislaturecould authorize school dlstrlcte to expend local school funds for Insurance premiums to protect its school children against Injury, and Its employees against both llabllltyand Injury, from the operationoflts school busses. We do not believe that the Legislaturehas 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.

HonorableW.K. McClaln, Page 4 o-1418

Rogers vs. Butler, 92 S.W. (26) 415, wherein the court h~olds that under a similar statute authorizingschool districts to require a bond of bus drivers, the districtmay elect to take out a public llabllltyand property damage Insurancepolicy In lieu thereof. The driver of a school bus owes to the childrenwh,om he transports the highest degree of care consistent with the practical operation of the bus. Phllllps vs. Hardgrove,296 Pac. 559; Sheffieldvs. Lovering, 180 S.E. 523. The drivers' duty extends beyond the actual operation of the school bus to such matters as seeing that childrenalighting from the bus do not walk Into the path of another and oncomingmotor vehicle. Robinsonvs. Draper, 106 S.W. (2d) 825, 127 S.W. (2d) 181 (comm.App.). The statutorybond required of bus drivers doubtlesscovers broader llabllltlesand duties of the driver than are covered by the policy which you enclose In your letter. On the other hand, the policy doubtless covers llabilltlesof the bus driver to third parties which would not be covered by the statutorybond. Such a policy, therefore, Is not a proper substitutefor the requiredbond, and the school trustees should in every case, requlre bus drivers to furnish adequatebonds.
For the reasons stated,we answer your first question in the affirmative. It, therefore,becomes unnecessaryto answer your second question.
We enclose the insurancepolicy herein.
Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/VictorW. 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 CommitteeQ e/t3WB Chairman