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 establishedand operated

Dear Sir: underArticle 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 contemplatingcancellingWorkmen's Compensation Insurance for its employees. You have requested an opinion concerning the liability of the city and county for damages in caseswhere an employee of the hospital sustains personal injuries in the
course of his employmentresulting 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 incorporatedcity,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:

"TheCommissionersCourt 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 determinedby them by agreement."

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

and corporate, a public corporationand Political subdivision of the State, even when incorporatedunder the home rule amendmetit to the Constitution. 30'Tex. Jur. 12-14, MunicipalCorporations, Sets. 2, 

### 3.

Counties are bodies politic and corporate. Art. 

### 1572,V.C.S. They are political subdivisions which are created by the sovereignwill for the purpose of discharging the State's duties toward Its lnhabitants, and are'agencies or instrumentalitiesfor the administrationof matters which are of the State. 11 Tex. Jur. 52& Counties, Sec. 2.

In Hodge v. Lower ColoradoRiver Authority, 

### 163 S.W.2d 

### 855,856~(Tex.Civ. A upon agreed motion), the court s,"!d: 1942,'errordlsm.

"It seems now settled that a city is immune from liability for torts of Its agents *andemployeeswhen acting In a public or governmental capacity;but liablewhere such torts occur In the discharge of some function private or proprietary in character; It Is eauallvwell settled.however. thai a county is a governmentalagency 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 ‘liabilityis thereforereferable not onlv to thencharacter of the functionperformed, but also tb the character of the corporation itself,and the purposes for which Itwas created."

. . In City of Wichita Falls v. Roblson 121 Tex. 

### 133.46S.W.2d ybb '(.1932) '.the court he1 that the city-wasnot liable for personal inj,uriessustained by an employee,while performinghis duties, caused by the negligent acts of its officers or agents while discharginggovernmental functions of the city.

It has long been the law of this State that
a county is not liable In damages for personal injuries sustainedby Its employeeswhile 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 protectpublic heal,th, to prevent spread of diseases, and to~,do all acts necessary for promotion of health and the suppression of disease, Including the establishmentand maintenanceof 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 Legislatureh&s not in Article 44$&i, or any other statute, ei.therin express terms or by necessary impiication,provided that when a cit;y and county jointly establishand maintain a hospital as provided therein, they shall be liable for damages for personal injuries sustainedby their employeeswhile in the performance of their duties in connectionwith 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 incorporatedcity and a county in jointlymaintaining 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~damageaxforpersonal injuries sustained by their employees, while in the performanceof their duties in connectionwith 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