The Honorable Homer A. Foerster Opinion No. H- 158
Executive Director
State Board of Control Re: May liability insurance
P. 0. Box 13047, Capitol Station be procured by the Board
Austin, Texas 78711 of Control for power driven
lawn mowers and edgers
used for groundskeeping
on the Capitol Complex
grounds under either the
provisions of the Texas
Tort Claims Act, Article
6252-19, V. T. C. S. , or
Dear Mr. Foerster: Article 6252-19a, V. T. C. S.
Your letter requesting our opinion points to the fact that the Board of
Control, .in carrying out its groundskeeping responsibilities in the area of the
Capitol Complex, uses a number of power driven lawn mowers which create
a potential hazard ~to visitors, State officials and State employees. You note
that both the Texas Tort Claims Act (Article 6252-19, V. T. C. S. ) and Article
6252 -19a, V. T. C. S. , authorize the purchase of liability insurance. Clearly
the Board of Control is a “unit of government” as that term is defined in 5 2(l)
of the Tort Claims Act. Section 9 of that Act authorizes all units of govern-
m&t “to purchase policies of insurance providing protection for such units
of government, their officers, agents and employees agkinst claims brought
under the provisions of this Act . . . ”
Article 6252-19a, V. T . C. S. , provides, in part:
“Section 1. The State Department or Agencies who own
and operate motor vehicles . . . shall have the authority
to insure their officers and employees from liability
arising out of the use’, operation and maintenance of such
automobiles, trucks, tractors, power equipment . . .
used or which may be used in the operation of such
Department or Agency. Such insurance shall be provided
p. 732
TheHonorable Homer A. Foerster, page 2 (H-158)
by the purchase of a policy or policies for that
purpose from some liability insurance company
or companies authorized to transact business in
the State of Texas . . . .
‘1. . .
“Sec. 4. Such payments are to be charged against
the maintenance fund of the department for which
such employee is employed. ‘I
Each of these statutes is, in our opinion, sufficient “pre-existing law”
to satisfy the requirements of Article 3, $44 of the Constitution. Austin
National Bank v. Sheppard, 71 S. W. 2d 242 (Tex. 1934); Atto.rney General
Opinion V-84 (1947).
The Legislature, in the Appropriations Act for fiscal 1974 and 197.5 (House
Bill 139, 63rd Leg., 1973), among its general provisions ($ 54 of Article V)
provides:
“None of the funds appropriated in this Act may
be expended for the purpose of purchasing policies
of insurance covertng claims arising under the Texas
Tort Claims Act. ”
Claims which arise under the Texas Tort Claims Act are claims against
units of government and not against their employees or officers. There is
a distinction between appropriations for claims arising under the Tort Claims
Act and those arising under Article 6252-19a and the common law. Attorney
General Opinion M-1215 (1972), despite a similar restriction upon use of
appropriated funds, held that the Parks and Wildlife Department might use
its funds to purchase insurance provided for by Article 6252-19a, V. T. C. S.
Your precise question to us is:
“May liability insurance be procured by the Board
of Control for power driven lawn-mowers and edgers
used for groundskeeping on the Capitol Complex grounds
under either the provisions of the Texas Tort Claims
Act, Article 6252-19, Vernon’s Civil Statutes or Article
6252-19a, Vernon’s Civil Statutes? ”
p. 733
The Honorable Homer A. Foerster, page 3 (H-158)
We ‘answer your question that insurance may be purchased pursuant to
Article 6252-19a, V. T. C. S. , to insure the officers and employees of the
Board of Control from liability growing out of the operation of power driven
lawn mowers and edgers used in groundskeeping on the Capitol Complex grounds
but not to insure the liability of the Board of Control itself.
There can be no doubt but that the Legislature has the right, in its approp-
riations act to limit the use of funds therein appropriated if such limitations
do not conflict with or amount to general legislation. Conley v. Daughters of
the.Republic, 156 S. W. 197 (Tex. 1913); Moore v. Sheppard, 192 S. W. 2d 559
(Tex. 1946) and see Attorney General Opinion M-280.(1968). We are of the
opinion, therefore, that no funds appropriated in the Appropriations Act for
1974 - 1975, may be used to purchase insurance under § 9 of Article 6252-19,
V. T. C. S. We have no knowledge of any other funds available to the Board
of Control out of which such insurance might be purchased.
SUMMARY
The Board of Control may purchase liability insurance
covering the liability of its officers and employees arising
out of the operation of power driven lawn mowers and edgers
used in groundskeeping on the Capitol Complex, but may not
use funds appropriated for 1974 and 1975 to purchase insurance
insuring its own liability under the Texas Tort Claims Act.
Very truly yours,
rney General of Texas
.
DAVID M. KENDALL, Chairman’
Opinion Committee
p. 734