AUSTIN 11. TJSXAS
PRICE DANIEL
ATTORNEYGENERAL
June 28, 1948
Hon. Wallace T D Barber opinton NO. v-619
County Attorney
Hays CountJr Re: Authority OP rural
San Marcos, Texas high school district
to secure WorkmenQs
CompensationInsur-
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 constructionof
new buildings and remodeling of existing
buildings6 Instead of letting 8 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 school
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 woHcmmDacompO
from either the bond money or else from reg-
~18~ s,ehooltinda+”
Art. 2922k, V. C. S,, provides:
“All rural high schools within 8 rural
high school district herein provided SOP
ah811 be under the immediatecontrol 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 superfotetident and-,
eount;lboard
of school,,,trustees,and ahall be sub e(9t,to
the:same provisions of law and PestPiBtfons
thrt,common sohool districts are now subject
to, except where otherwise provided herein.’
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, 8tltkOPfteEthb tPU8tb.5 Of 8 aehool
dlstrlct to OOtltP8etfop the ePbetfon of the bufld-
ings snd auperfntendthe constmmtfon of the e8me0
art. 2827, 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 ~POIRdisfP"iot
tams, tuition fees of pupils not entitled to
rrbb tuition am4 other lea81 boulwba may be
ured rOP the puPpo$MI euumerbted rOP gt8te 8Ud
county runtlrsnd POP pur8hbrfQg rpplfanees 8d
supplies>
0 0 0 0la.
We bolfeve y'ou~queatfon fs aentmllod by
the reaeoning 8nd oonolusfonPeaeked la Ophioa 810.
0-1418 of the Attornef Oeaeril of %?exas,approved Bsp-
tember 25,/1939. The question there oonspderodwas
Whether 8 school dimtpiot, whlah is not Ifable for pep-
SORO1 it~juPJrPO8 6 #IS&@01buS 8O&fdOnt, h8e 8UthOPfty
to expand fts publfe funds Co gur@hDileliabflfty or
pOPSOn in,jau?y fIWPbt3C0, rOP th@ bQQ&ft Or PI&h
and third pa??tfee~ That queetfon was eonsidsred f~or
the St8UdpOfntof"whothee AHfele 2827, V. 6, S,,abovo
quoted; provided f?Xp!Pbml 8uthoPftf POP such 8n oxpen-
ditum; lnd, ff not, wh%theP ,ths8uthoPfty tight be
implied Boa the exp~eas statutory authorfty to operate
school buraa, It vat!thepd, hold that sines thope could
be no lfabflfty on the pmt ofpV&I dfrstPfatOP fts
agents and employees fn tho porfommee of the govepn-
mental f'unetfonor opepatfng Q scshoolbus, ,suehexpen-
dituPe W8S not authoPfSedby APt. 2827. It W8S held
that the 18tteP A,Ftfcleauthorfeed p8YIm8nt Of p~e8fu~ar
only r0P tiuehfasuPbnoe85 pPote&wI the ammt,
ftre$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 a school
sahoolbufldfngr '%sj
Hon. Wallaoe T. Barber, Page 3, v-619
district,washeld in an oplnlon of the Attorney Cen-
era1 dated June 8, 1937, Book 376,,psge 733, ad-
dressed to ,CovernorJames'V. Allred, to be a govern-
mental funutfon and the district could not be sub-
jected to pecuniary loss or llabllltyby.reason of
injuries sustainedby persons In connectionwith
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,authorityis found ,forsuch an ex-
penditure.
In Opinion No, O-5315n approved May 22, '..
1943, the Attorney General held that thenCounty Com-
mlsaioner8~ Court OS a county did not have poWbP to
procure workmen's compensation insuranceon opera-
tors of road maintenance equipment,following the
rule stated in Texas Jurisprudence,Vol. 45, p- 455,
Sec. 69, that the Texas Workmen*8 CompensationLaw
"does not apply to atatea, counties or olties in
their performanceof governmentalfunotions." It
was there noted that under Article,III, Section 59,
of the'Tda5 Conatibutlon,the Legislaturewas em-
powered to !'provldb workmi!n~~s
tiO%pensationlnsur-
anae ior uu(rhstate ~employeea,is ,lnl~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 Legislaturehaa not extended such benefits
to sehool districts.
There are oadd holding that a clt , though
not aubjeOt'tothe Workmen18 Compensation -?d 9 =wa
nevertheless,Insure-itsemployees against bodily ln-
WY. See MoCaleb v. ContinentalCaaaaltg Co.,~l32
Tex.~65, ,116 S, W, (28) 679:'CrertAmerloan Indemnity
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 are notefnaludedwithin the provlrlona of the
Wor.kaen'sCompensationLaw will not preclude them from
entering Into a contract Pnsurlng their employees On
the samb.brslraa employees are insured under the
Ron. Wallace T. Barber, Page 4, v-619
Workmenls CompensationLawg 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 a defense to a suit by an employee
injured thereafter. Th6 question of the authority of
the cities to effect expendituresfor such insurance
was left open. The authority to expend public funds
for such Insuranceby a olty depends upon the construc-
tion and applicationo? its chapter and the statutes
applicable thereto, whereas the authority of school
districts and strictly state agencies to make expendi-
tuzresmust be found in applicable general statutes
governing their expenditures.
We express no opinion a8 to the liability
of'an lnsuranaecompany to an employee of any school
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. ContinentalCasualty Co,, supra,
You are respeotf'ullyadvised 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 compensationinsur-
anoe payable to its employees fop personal
injuriesreceived 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