-E A'rrom GENEOF TEXAS 

GROVER SELLERS Avs- 11. - 

Honorable D. C. Greer 

State Highway Engineer 

Austin, Texas 

Dear Sir: Opinion No. O-5790 

Re: State Highway Department 

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' 

operated by the Texas Highway Department 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 Impact was 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 the Department for damages to one of the motor vehicles Fn 

the sum of $136.83 by the Cook Paint &Varnish 

Company of Ft. Worth. . . . . ..Will you please advise me if the Texas Highway 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 procedure must be 

followed by 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 Texas Highway Department, was 

performing a governmental function or.one merely 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 Civil Appeals and in which a 

Writ of Error was refused, It was held that the State in the 

operation of a railroad was performing an lndustrlal or proprietary function and not a strict governmental one, and thereby Was 
Honorable D. C. Greer, page 2 O-5790 

liable for damages for the injury of an employee. In this case 

it was said: 

'When a state embarks in an enterprise which 

1% usually carried on by Individual persons or companles, it voluntarily waives its sovereign character, 

and is subject to like regulation with 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 performing duties prescribed by 

law in the ordinary affairs of the government violate 

those laws or exceed their authority when they perpetrate wrongs. For such conduct no liability of the 

state arises. But sometimes the officer or agent 

acts for the state, as did those Fn charge of this 

railroad, in doing the very things prescribed by the 

law under 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 Institutions and business, 

generally by statute, as in the case of Georgia with 

reference to its rallroads, and of New 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's argument that the ownership and 

operation of this railroad by the state constituted 

a part of the ordinary conduct of governmental 

affairs seem not to need extensive notice. It seems 

too plain to require comment that the manager and 

those in charge of this railroad were not engaged 

in the performance of duties to the state incident 

to the conduct of Fts penitentiaries and care for Its 

convicts. Such an argument disregards 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 in which 

a Writ of Error was denied, lt was held that the State was not 

liable for injuries received by an employee of the State Highway 

Department while Fn the employ of said department, such Injuries 

being caused by the negligence of a fellow-employee while they 

both were engaged in repairing a state highway, the opinion 

stating that: 
- . 

Honorable D. C. Greer, page 3 O-5790 

“It is now settled that the location, dealgnatlon, construction, and maintenance of state hlgwwags by the highway department 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 expressly assumed 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 recovery was 

based clearly, we thLnk, upon the principle that 

the operation of such enterprise was not a governmental finctlon, but industrial or proprietary in 

character; and the holding in that case is not in 

derogation of the well-established rules relating 

to strictly governmental function8 such as the one 

here involved. It does 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 highway worker injured by dynamite blast set off during 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 Involve actual repair and maintenance of a highway and the injured partfes were 

hurt by fellow-employees, but as the controlling factor is the 

capacity In which 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 certain waterways where the ferries connect 

designated. state highways, and the ferry in question is operated 

under and by virtue of thFs authority. There is no expressed 

assumption of liability on the part of the State in regard to 

such power. 

If the operation of this ferry by the State comes under 

the term "maintenance of a highway", by reason of connecting the 

two ends of the highway and allowing traffic to Continue across 

same, then Lt would 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 Case Of 
Honorable D.C. Greer, page 4 O-5790 i 

Dallas County v. Plowman, 91 S.W. 221, in defining 

"maintenance', as used in a tax law, as follows: 

"The purpose of the Legislature in making 

the word - 

the 

amendment was to increase the capacity of the County 

to malntaln a system of public roads, and the word 

'maintenance' must be held to include all of the 

things necessary to be done to accomplish that purpose." 

The purpose of a highway being to allow persons to 

travel under their own power and control from one place on it 

to another with a minimum of difficulty, It certainly stands to 

reason that anything bridging an Impassable gap in a hlghway, 

whether an immovable bridge or a movable ferry, is necessary in 

carrying out this purpose. 

It is therefore the opinion of this department that the 

State in operating such ferry was engaged in the maintenance of 

its highway system which Is a governmental function, and It Is 

not liable to the Cook Paint & Varnish Company for any damage 

that may have been sustained by It due to the negzlgence of the 

State's employees in operating the said ferry. This holding 

renders unnecessary the answering of the last part of your 

question. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

By s/Robert L. Lattimore, Jr. 

Robert L. Lattlmore, Jr. 

Assistant 

RLL:gm:wc 

APPROVE) JAR 28, 1944 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Commfttee By s/AW Chairman