Case Information
*1 AUSTIN 11. TJSXAS PRICE DANIEL ATTORNEY GENERAL June 28, 1948
Hon. Wallace T D Barber opinton NO. v-619 County Attorney
Hays Count Jr Re: Authority OP rural San Marcos, Texas high school district
to secure WorkmenQs Compensation Insur- anoe on workmen erecting school bulld- ing * Dear Sir:
We quote from your request for on opinion 8s follows:
“A rural hQh school district in Hays County, Texa5, voted and issued sohool house building bonds for the construction of new buildings and remodeling of existing buildings 6 Instead of letting contract for this work, the school board has hired their own foreman and workmen. The school board now proposea to take out UoPkmen~s Com- pensation and pay for the same from either the bond money OP else fpom regular funds ~0 The question fs whether or not it is proper for the school board to pay for the predurs to be due on the woHcmmDa compO from either the bond money or else from reg- ~18~ s,ehool tinda + ” 2922k, V. C. S,, provides:
Art. “All rural high schools within 8 rural high school district herein provided SOP ah811 be under the immediate control of the t~g;,;f school trustees for such Pural high , and such boord,of school trustees shall be under the,,@ontrol 8nd SupePvisfon of &he county super fotetident and-, eount;l board of school,, ,trustees, and ahall be sub e(9t ,to the:same provisions of law and PestP Btfons i thrt, common sohool districts now subject to, except where otherwise provided herein.’ *2 Hon. Wallace T, Barbm, Pago 2, v-619
Artio1e 2749, v. c. s., provides th8t the tPuatees shall have the 88n8geUUt aad eontPo1 of the public schools and publio scheol gr0und6, and Article 2752, V, C, 50, 8tltkOPfteE thb tPU8tb.5 Of 8 aehool dlstrlct to OOtltP8et fop the ePbetfon of the bufld- ings snd auperfntend the constmmtfon of the e8me0
art. V. C, SO, provfdes, In wt, 8s
foLlows:
"The public fmo school tiads shall not be expended exoept POP thb followfng purposers Q 0 0 0
“2, L0081 school fu~@s ~POIR disfP"iot tams, tuition fees of pupils not entitled to rrbb tuition am4 other lea81 boulwba may be ured rOP the puPpo$MI euumerbted rOP gt8te 8Ud county runtlr snd POP pur8hbrfQg rpplfanees 8d supplies > la. 0 0 0 0
We bolfeve y'ou~ queatfon fs aentmllod by the reaeoning 8nd oonolusfon Peaeked la Ophioa 810. 0-1418 of the Attornef Oeaeril of %?exas, approved Bsp- tember 25,/1939. The question there oonspderod was Whether 8 school dimtpiot, whlah is not Ifable for pep- SORO1 it~juPJ rPO8 6 #IS&@01 buS 8O&fdOnt, h8e 8UthOPfty to expand fts publfe funds Co gur@hDile liabflfty or pOPSOn in,jau?y fIWPbt3C0, rOP th@ bQQ&ft Or PI&h and third pa??tfee~ That queetfon was eonsidsred f~or the St8UdpOfnt of" whothee AHfele V. 6, S,,abovo quoted; provided f?Xp!Pbml 8uthoPftf POP such 8n oxpen- ditum; l nd, ff not, wh%theP ,ths 8uthoPfty tight be implied Boa the exp~eas statutory authorfty to operate school buraa, It vat! thepd, hold that sines thope could be no lfabflfty on the pmt ofp V&I dfrstPfat OP fts agents and employees fn tho porfommee of the govepn- mental f'unetfon or opepatfng Q scshool bus, ,sueh expen- dituPe W8S not authoPfSed by APt. 2827. It W8S held that the 18tteP A,Ftfcle authorfeed p8YIm8nt Of p~e8fu~ar only r0P tiueh fasuPbnoe pPote&wI the ammt, ftre$f, fPa8 ~OUUf8Py lose QP lf8bflfty. It w8s 8180 held thbt there ex%st& no implfe,af power fn that eon- nootfon rfnee themi ~81 no neeersity r02 auah expendi- tree ao rap am the school listPfat.Wae ~onee~aed,
The epeatfon of sahoolbufldfngr '%sj *3 Hon. Wallaoe T. Barber, Page 3, v-619 district,was held in an oplnlon of the Attorney Cen- era1 dated June 1937, Book 376,,psge 733, ad- dressed to ,Covernor James'V. Allred, to be a govern- mental funutfon and the district could not be sub- jected to pecuniary loss or llablllty by.reason of injuries sustained by persons In connection with the erection of such buildings. Therefore, the au- thority in Article 2827 to pay insurance premiums doer not lnulude authority to pay for such lnsur- anoe. lo other,authority is found ,for such an ex- penditure.
In Opinion No, O-5315 n approved May 22, '.. 1943, the Attorney General held that then County Com- mlsaioner8~ Court OS a county did not have poWbP to procure workmen's compensation insurance on opera- tors of road maintenance equipment, following the rule stated in Texas Jurisprudence, Vol. p- 455, Sec. 69, that the Texas Workmen*8 Compensation Law "does not apply to atatea, counties or olties in their performance of governmental funotions." It was there noted that under Article, III, Section 59, of the'Tda5 Conatibutlon, the Legislature was em- powered to !'provldb workmi!n~~s tiO%pensation lnsur- anae ior uu(rh state ~employeea, is ,ln l~t.ts judgment is neorssary or required"; but that such benef'lts had not been extended to oountles. ,One of the rea* sow assigned in that opinion was the laok of express statutory authority, equally applioablo to your quea- tion. The Legislature haa not extended such benefits to sehool districts.
There are oadd holding that a clt , though not aubjeOt'to the Workmen18 Compensation 9 =wa -?d nevertheless, Insure-its employees against bodily ln- WY. See MoCaleb v. Continental Caaaaltg Co.,~l32 ,116 S, W, (28) 679:'Crert Amerloan Indemnity Tex.~65, Co, v. Blakey, 107 3. W. (2d)'1002 (Court of Cfrll Appeala, San Antonio) on raotlon~ ior rehearing, p* 1006; and, Southern Calrualty Co, v@ Morgan, 299 S;W. 476, affirmed, Commission of AppQalr, X? '%, W, (26) 200, Aone of these oases deal with the souroe ai' authority to the city to make the oxpendlture. They merely ea- tabllsh two aollateral p~lnclpl8s~ lat, the faut that eltles note fnaluded within the provlrlona of the Wor.kaen's Compensation Law will not preclude them from entering Into a contract Pnsurlng their employees On the samb.brslr aa employees are insured under the *4 Ron. Wallace T. Barber, Page 4, v-619 Workmenls Compensation Lawg and, 2nds having entered into such a contract the insurer Is estopped to assert the lack of authority on the part of the city to make such a contract as defense to a suit by an employee injured thereafter. Th6 question of the authority of the cities to effect expenditures for such insurance was left open. The authority to expend public funds for such Insurance by a olty depends upon the construc- tion and application o? its chapter and the statutes applicable thereto, whereas the authority of school districts and strictly state agencies to make expendi- tuzres must be found in applicable general statutes governing their expenditures.
We express no opinion a8 to the liability of' an lnsuranae company to an employee of any distriot which took but much InsuPanoe, notwithstanding its want of authority. This fob t&s Serson,that the cases cited say that the insu~mea conponies are ea- topped to raise the question of the power to contract. McCaleb v. Continental Casualty Co,, supra,
You respeotf'ully advised that such ex- penditure is not, la otm opiaion,, authorired.
A rural high school district is not authorized to expend money in payment of premiuma for workmen"a compensation insur- anoe payable to its employees fop personal injuries received while engaged in the eon- struction of a school building, Very truly yours A!PTORflSq ffBl$l$ OJ TXM_ N&/rt
APPROVED; ,
iames 'Ti !%-yafl Assistant