(dissenting).
This dissent is respectfully submitted.
The majority finds no ambiguity in Article 5.06-1(2), Texas Insurance Code Annotated (Pamp.Supp.1975-76), and a furtherance of the purpose of that statute by the exclusion of government-owned vehicles from the definition of “uninsured automobile.” This dissent challenges the conclusion of the majority in both instances.
The Insurance Board “can exercise only such authority as is conferred upon it by law in clear and unmistakable terms and the same will not be construed as being conferred by implication.” Board of Insurance Com’rs v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 908 (1944). In the exercise of such authority “the Board may not act contrary to but only consistent with, and in furtherance of, the expressed statutory purposes.” American Liberty Insurance Company v. Ranzau, 481 S.W.2d 793, 796-97 (Tex.1972). [Emphasis added.]
With respect to the scope of the Insurance Board’s authority, Article 5.06-1(2) grants it only the power to “exclude certain motor vehicles whose operators are in fact uninsured.” [Emphasis added.] Thus, the Insurance Board does not have the authority in “clear and unmistakable terms” to sanction policy provisions which exclude motor vehicles whose owners are uninsured. The policy provision involved in this case does not exclude uninsured operators of motor vehicles. Instead, it excludes uninsured owners of motor vehicles;1 namely, governments. Accordingly, it cannot be said that the Insurance Board in “clear and unmistakable terms” had the authority to approve this exclusion of government-owned vehicles from the definition of “uninsured automobile.”
Other courts have also held that a provision excluding government-owned vehicles from the definition of “uninsured automobile” was invalid on the ground that the exclusion did not have the sanction of statute. Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973); State Farm Mutual Automobile Ins. Co. v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213 (1973); Powell v. Allstate Insurance Company, 233 So.2d 38 (La.Ct.App.1970). In Franey v. State Farm Mutual Automobile Ins. Co., 5 Ill.App.3d 1040, 285 N.E.2d 151 (1972), it was stated that such an exclusion would be “unduly restrictive” and would defeat the purpose of mandatory uninsured motorist coverage.
An analysis of the purpose of the uninsured motorist statute also leads to the conclusion that the exclusion of government-owned vehicles is invalid. Article 5.06-1 was passed “. . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or *63operators of uninsured motor vehicles . [Emphasis added.] The obvious purpose of the Legislature was to protect the insured from a financial loss due to an inability of the tort-feasor to pay for the damage inflicted. Further support for this interpretation can be found in the emergency clause of the legislative Act which added Article 5.06-1 to the Texas Insurance Code:
“Sec. 3. The fact that the people of Texas are constantly exposed to financial loss caused by negligent financially irresponsible motorists, and the further fact that it is the intent and purpose of this Act to provide a means of protecting the conscientious and thoughtful motorist against such loss, thereby benefiting all the citizens of this state, constitutes an emergency . . . .” Texas Laws 1967, Chapter 202, Section 3, at 449. [Emphasis added.]
In the instant case Francis is legally entitled to recover from the fireman, the operator of the uninsured fire truck, under the reasoning of Eubanks v. Wood, 304 S.W.2d 567 (Tex.Civ.App. — Eastland 1957, writ ref’d n. r. e.). Further, the fireman had no liability insurance policy or a bodily injury liability bond applicable to the fire truck and, thus, was financially irresponsible. Accordingly, Francis falls within that class of people the Legislature intended to protect under Article 5.06-1. Since the definition of “uninsured automobile” approved by the Insurance Board would frustrate the purpose of the Legislature it must be viewed as invalid.
It should be noted that in the only case cited to this court in which the exclusion of government-owned vehicles from the definition of “uninsured automobile” was upheld, the statute specifically excluded government-owned vehicles and there existed a method whereby the insured person could recover, and did recover, $4,000 from the government unit which owned the vehicle. Jones v. Southern Farm Bureau Casualty Company, 251 S.C. 446, 163 S.E.2d 306 (1968). That court could therefore reasonably conclude that the South Carolina Legislature had enacted a comprehensive scheme in which the injured person could recover from a government unit even though the unit had no insurance policy and in spite of the fact that government-owned vehicles were excluded from the definition of an “uninsured automobile.” Similarly, the Texas Legislature could have explicitly excluded government-owned vehicles from the definition of “uninsured automobile” and explicitly waived the defense of government immunity and thereby effected its purpose of protecting the insured motorist from a financial loss due to an inability of the tort-feasor to pay for the damage inflicted. It did not do so. Instead, the Legislature chose to allow exclusion of uninsured operators.
The only categories of uninsured operators which can be excluded in view of the legislative intent to protect the insured motorist from a financial loss due to an inability of the tort-feasor to pay for the damage inflicted are those classes which would still allow the insured motorist to recover damages from a tort-feasor. For example, an operator of an automobile whose owner would be liable could be properly excluded.
STEAKLEY and McGEE, JJ„ join in this dissent.
. The policy provides “ ‘uninsured automobile’ shall not include ... an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing, . . .” [Emphasis added.]