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## A'rrom GENEOF TEXAS

GROVER SELLERS Avs- 11.-

HonorableD. C. Greer State Highway Engineer Austin, Texas

Dear Sir: Opinion No. O-5790 Re: State HighwayDepartment Liability for negligent operation of Ferry.

Your letter of January 6, 1944, addressed to the Attorney General, has been received. The pertinent facts stated in your letter are as follows:

'On Nov. 6, 19'13, the motor ferry 'Jefferson' operatedby the Texas HighwayDepartment between Galveston Island and Port Boliver was blown by a storm into the cluster piling at the north side of the entrance to the landing on the Bolivar side. The Impactwas great enough to cause all vehicles parked and blocked on the deck of the boat to move forward, resulting In damagetothree vehicles. A claim has been flied with theDepartment for damages to one of the motor vehicles Fn the sum of $136.83by the Cook Paint &Varnish Company of Ft. Worth.

......Willyou please advise me if the TexasHighway Department Is liable to the Cook Paint & Varnish Company for the damages to the vehicle resulting from the Incident outllnad above and If so what proceduremust be followedby the Cook Paint& Varnish Company to effect collection of their claim?"
The application of the law ln regard to thls State of facts hinges on the question as to whether or not the State, by and through its agency the TexasHighway Department, was performing a governmental function or.onemerely industrial or proprietary in character, In the operations of the ferry in question.

In the case of State vs. Elliott, 212 S.W. 695, decided In 1919 by the Galveston Court of CivilAppeals and in which a Writ of Error was refused, Itwas held that the State in the operation of a railroadwas performingan lndustrlalor proprietary function and not a strict governmental one, and therebyWasHonorable D. C. Greer, page 2 O-5790

liable for damages for the injury of an employee. In this case it was said:

'Whena state embarks in an enterprisewhich 1%usually carried on by Individualpersons or companles, it voluntarilywaives its sovereign character, and is subject to like regulationwith persons engaged in the same calling. And it Is not true ln any such broad sense as aipiliant contends that
a state cannot become liable,without contract, for tortlous conduct of those representing it. Ordinarily officers and agents performingduties prescribedby law in the ordinary affairs of the government violate those laws or exceed their authoritywhen they perpetratewrongs. For such conductno liability of the state arises. But sometimes the officer or agent acts for the state, as did those Fn charge of this railroad, indoing the very things prescribedby the lawunder which he acts, in doing which he commits a wrong to another.

. . . .The contention that the state is liable in this case asserts nothing novel. Other states have owned railroads, canals, and other businesses, and have accepted the consequences of their ownership of the Institutionsand business, generallyby statute, as in the case ofGeorgia with reference to its rallroads,and ofNew York in reference to its canals. The declslons in those states show that they have assumed full liability for all such claims as we present here. The suggestion In appellant'sargument that the ownershipand operation of this railroad by the state constituted
a part of the ordinaryconduct of governmental affairs seem not to need extensivenotice. It seems too plain to require comment that the manager and those in charge of this railroadwere not engaged in the performance of duties to the state incident to the conduct of Fts penitentiariesand care for Its convicts. Such an argumentdisregards all distfnctions in government."

In the case of Brooks v. State, 68 S.W. (26)534, decided by the Austin Court of Civil Appeals Ln 1934, and inwhich
a Writ of Error was denied, lt was held that the State was not liable for injuriesreceived by an employee of the StateHighway Department while Fn the employ of said department, such Injuries being caused by the negligence of a fellow-employeewhile they both were engaged in repairinga state highway, the opinion stating that:- .

HonorableD. C. Greer, page 3 O-5790

“It isnow settled that the location,dealgnamaintenance of state hlgwtlon, construction,and wags by the highwaydepartment aa an agency of the state Is a governmental function. It la likewise settled that the state ia not liable for the torts or negligence of its officers,agents, or servants engaged in the performance of a governmental function,unless it has expresslyassumed such liabilAppellant relies In large measure on %‘caie*o; State v. Elliott (Tex. Civ.App.) 212 s.w.~695,6gg,wherein a recovery against the state was affirmed for damages growing out of the operation by the state of a railroad. Thls recoverywas based clearly,we thLnk,upon the principle that the operation of such enterprise

### wasnot a governmental finctlon,but industrialor proprietary in character;and the holding in that case is not in derogation of the well-establishedrules relating to strictlygovernmental function8 such as the one here involved. Itdoes not, therefore, control the issues here presented."

In the case of Martin v. State, 88 S.W. (26) 131, It was decided by the El Paso Court of Clvll Appeals Fn 1935 that
a highwayworker injuredby dynamite blast set offduring lunch hour, contrary to rule and custom,was not entitled to recover against State and Highway Commission on theory of breach of contractual duty to furnish safe place to work. This case and an earlier case cited therein, State v. McKlnney, 76 S.W. (26) 556, follow Brooks v. State, supra, and they all Involveactual repair and maintenance of a highway and the injuredpartfeswere hurt by fellow-employees,but as the controlling factor is the capacity Inwhich the State acted the principle of law Involved extends to the class of litigation involved hereln.

In 1933 by H.B. No. 196 of Gen. Laws, 43rd Leg. 1st Called Session, the Legislature authorized the State Highway Department to purchase or construct,and malntaln, operate and control ferries on certainwaterwayswhere the ferries connect designated.state highways,and the ferry in question is operated under and by virtue of thFs authority. There isno expressed assumption of liability on the part of the State in regard to such power.

If the operation of this ferry by the State comesunder the term "maintenanceof a highway",by reason of connecting the two ends of the highway and allowing traffic to Continueacross same, then Ltwould be reasonable to assume that in the operation of the ferry the State is engaged in the discharge of a governmental function. The Texas Supreme Court held Ln the 

### CaseOfHonorableD.C. Greer, page 4 O-5790 i

Dallas Countyv. Plowman, 91 S.W. 221, indefining "maintenance',as used in a tax law, as follows:

"Thepurpose of the Legislature inmaking the word -

the amendmentwas to increasethe capacity of the County to malntaln a system of public roads, and theword 'maintenance'must be held to includeall of the thingsnecessary to be done to accomplish that purpose."
The purpose of a highway being to allow persons to travelunder their own power and control from one place on it to another with a minimum ofdifficulty, It certainly stands to reason that anything bridging an Impassablegap in a hlghway, whether an immovablebridge or a movable ferry, is necessary in carrying out this purpose.

It is therefore the opinion of thisdepartment that the State in operating such ferry was engaged in the maintenance of its highway systemwhich Is a governmental function, and It Is not liable to the Cook Paint & Varnish Company for any damage that may have been sustainedby It due to the negzlgence of the State's employees in operating the said ferry. This holding rendersunnecessary the answering of the last part of your question.

Yours very truly,

ATTORNEY GENERAL OF TEXAS

By s/RobertL. Lattimore,Jr. Robert L. Lattlmore, Jr. Assistant
RLL:gm:wc APPROVE) JAR 28, 1944 s/GroverSellers ATTORNEY GENERAL OF TEXAS

Approved Opinion CommftteeBy s/AW Chairman