April 29, 1952 

Hon. Darwin L. Wilder Opinion No. V-1439 

County Attorney 

Denton County Re: Liability of a city and 

Denton, Texas county for personal injuries s,ustained by employees of their hospital 

established and operated 

Dear Sir: 

under Article 44941, V.C.S., 

when Workmen's Compensation Insurance is not 

carried for them. 

The Board of Managers of the City-County 

Hospital in Denton County created pursuant to Article 

44941, V.C.S., is contemplating cancelling Workmen's 

Compensation Insurance for its employees. You have 

requested an opinion concerning the liability of the 

city and county for damages in cases where an employee 

of the hospital sustains personal injuries in the 

course of his employment resulting in dis,ability or 

death, in the event the insurance is cancelled. 

Article 4494i, V.C.S., authorizes any county 

of this State and any incorporated city,or town within such co,unty to jointly establish, erect, 

maintain and operate a hospital or hospitals 

equip, 

for 

the care and treatment of the sick, infirm, and/or 

inj,ured"; provides for a Board of Managers for the 

hospital composed of seven members, three to be appointed by the commissioners' court of such county, 

three to be appointed by the governing board of such 

city or town, and one,by s,uch court and governing 

body acting jointly; and prescribes their tenure 

of office and duties. Section 6 thereof provides: 

"The Commissioners Court of s.uch county 

and the governing body of such city or town 

may contrib,ute to the funds necessary for 

such hospital or hospitals in whatever proportion may be determined by them by agreement." 

A municipal corporation is a body politic 
Hon., DBrwin L. Wilder, page 2 (V-1439) 

and corporate, a public corporation and Political subdivision of the State, even when incorporated under 

the home rule amendmetit to the Constitution. 30'Tex. 

Jur. 12-14, Municipal Corporations, Sets. 2, 3. 

Counties are bodies politic and corporate. 

Art. 1572, V.C.S. They are political subdivisions 

which are created by the sovereign will for the purpose of discharging the State's duties toward Its lnhabitants, and are'agencies or instrumentalities for 

the administrationof matters which are of the State. 

11 Tex. Jur. 52& Counties, Sec. 2. 

In Hodge v. Lower Colorado River Authority, 

163 S.W.2d 855, 856~ (Tex. Civ. A 

upon agreed motion), the court s,"!d: 

1942,'error dlsm. 

"It seems now settled that a city is 

immune from liability for torts of Its agents 

*and employees when acting In a public or governmental capacity; but liable where such 

torts occur In the discharge of some function 

private or proprietary in character; 

It Is eauallv well settled. however. thai a 

county is a governmental agency and'as such 

is immune from liability for all torts, just 

as Is the State Itself unless such liability 

IS created by statuteoi . . .'Immunity'from 

‘liability is therefore referable not onlv 

to then character of the function performed, 

but also tb the character of the corporation 

itself, and the purposes for which It was 

created." . . 

In City of Wichita Falls v. Roblson 121 

Tex. 133. 46 S.W.2d ybb '(.1932) '. th e court he1 that 

the city-was not liable for personal inj,uries sustained by an employee, while performing his duties, 

caused by the negligent acts of its officers or agents 

while discharging governmental functions of the city. 

It has long been the law of this State that 

a county is not liable In damages for personal injuries 

sustained by Its employees while In the performande of 

their duties caused by the negligent or tortlous acts 

~3' :;-. qr.".;,::: I", ; , ,q,~lt:, 1 r: ., ll'G, :,.;.,- - ' :,, 
- . . 

Hon. Darwin L. Wilder, page 3 b-i4391 

of its officers, agents, or servants, unless liability 

be created by statute, either in express terms or& 

necessary implication. Bryan v. Liberty County, 299 

S.W. 303 (Tex. Clv. App. 1927). 

In City of Dallas v. Smith, 130 Tex. 225, 

107 S.W.2d 872 (1937). . --.,. the court held that since the 

State has by numerous statutes given to cities power 

to make rules and regulations to protect public heal,th, 

to prevent spread of diseases, and to ~,do all acts necessary for promotion of health and the suppression of 

disease, Including the establishment and maintenance of 

hospitals, and, in the exercise of these powers, cities 

perform governmental functions as agencies of the Sta.te, 

they are not subject to be s'ued for any act or omission 

occurring in the exercise of such'power, unless suit is 

authorized by statute. 

_... 

Tine Legislature h&s not in Article 44$&i, or 

any other statute, ei.ther in express terms or by necessary impiication, provided that when a cit;y and county jointly establish and maintain a hospital as provided 

therein, they shall be liable for damages for personal 

injuries sustained by their employees while in the performance of their duties in connection with such hospital caused by the negligent or tortious acts of t;heir 

officers, servants or employees, or required them ,to 

carry Workmen's Compensation Insurance for such employees. It necessarily follows that they may not be 

held liable for such damages. 

SUMMARY 

An incorporated city and a county in 

jointly maintaining and operating a hospital 

under the provisions of Article' 44941, V.C.S., 
Hon. Darwin L. Wilder, page 4 (V-1439) 

are not liable. fbr~damageaxfor personal 

injuries sustained by their employees, 

while in the performance of their duties 

in connection with such hospital, caused 

by the negligence of their officers, 

servants, or employees. 

Yours very truly, 

APPROVED: PRICE DANIEL 

Attorney General 

J. C. Davis, Jr. 

County Affairs.,Dlvlsion 

E. Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

Bruce W. Bryant 

Assistant 

BWB:mh