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Hon. T. M. Trimble OpinionNo. 0-33L6 First Assistant State He: Tort liabilityof schooldistrict-- Superintendent authorityto indemnifythird partiesfor Austin, Texas actionssoundingin tort.
Dear Sir:
We are in receiptof your letter of March 27, 19& In which you request the opinionof this departmentconcerningthe authorityof the Board of Trusteesof the Borger IndependentSchoolDistrictto exe- cute a lease or licensecontractcontainingthe followingprovisions:
"The lessee (SchoolDistrict)expresslyassumes all liabilityfor injury or death to any studentsor instructorsin attendanceat said school,whether caused by the equipmentand material suppliedby J. M. Huber Corporation,or the conditionof the premisesor by any of the employeesof J. M. Huber CorporationVI- by soy other cause, direct or indirect,resultingin injury or death to any of said studentsor instructors.
*It is understoodthat the premisesleased are in the carbonblack plant yard of J. M. Huber Corporation and all of the hasardsto studentsand inetructorsusing said premisesand passingthroughsaid plaut yard are 'expresslyassumedby the lessee.
"And the said lesseepromisesand covenantsto ih- demnifyand hold haxmlessthe said J. H. Huber Corpora- tion from any and all claimsfor damagesfor injuries to personsand for deathand for damageto propertyads-' ing out of or in connectionwith the operationof said ; school on said premises.
"It is understoodand agreed that J. M. Huber Corpor- ation is permittingthe use of its premisesand equipPent & studentsand instructorswithout charge;and it makes no representation as to the condition,quality,fitnessor. safety of the praaiees,mterial, equi~ent, buildings or structurer~and that lesseehereby assume full respousl- bility and liabilityfor the 0ame.e . .
Hon. T. H. Trimble (0-33b6) page 2
The occasionfor the contractgrows out of an arraugementwhereby the schoolproposesto teach classesin veldingat the machine shop and yards of the lessor. The above quoted provisionsappear as a part of the agreement whereby the Companyproposesto grant its consentfor the we of its property for such purposes.
School districtsare public corporationsand governmentagencies exercisinga governmentalfunction. They differfrom cities and towns in that the latter exercisea dual function,to-wit,governmentaland proprietary, while a school districtis purely a govermental agency and exercisesonly such powers as are delegatedto it by the state. It perfonnsno proprietary functionswhich are separateand independentof its governmentalpowers. In this respectit is more readilycomparableto a county,which is not held an- swerablefor its negligencein an action foundedin tort. Brown v. Trustees of~~VictoriaIndependentSchoolDistrict,(T.C.A.1938, writ refused)1l.hS.W. (2d) 9b7. The school districthas no liabilityfor actionssoundingin tort, arisingout of the performanceof its governmentalfunction. Opinion6O-u3 and O-1405,copies of which are enclosedherewith;McVey v. City of Houston (T.C.A.1925) 273 S~.W.313; Brown v. VictoriaIndependentSchool District, supra; 24 R.C.L.g60, p. 601r;37 T.J. I lh8, p. 1030 and authoritiesthere cited,particularlynotes in A.L.R.
McQuillinin his work on MunicipalCorporations,2nd ed., Vo1.3, sec. 1270, makes the statementthat a amnicipalcorporation"cannotassumea liabilitywhere none legally exists.6 It is too well settledto requirecita- tion of authoritythat a board of school trusteeshas limitedauthorityand nay not bind the districtin excess of the authoritygrantedthem by statute either expresslyor by necessaryimplication. It is our opinionthat the trusteesof a school districtnay not subjecttheir school districtto lia- bility in tort where such liabilitydoes not exist in law. The situation would be analogousto an officeror agent of the State