dissenting.
I respectfully dissent. I would reverse the judgment of the trial court and remand this case for a trial on the merits.
In view of the trial court’s action in sustaining the School District’s plea in bar and plea in abatement and in granting its motion for summary judgment, as well as the view obviously taken in the majority opinion, the question of negligence and proximate cause on the part of the school bus driver is not involved on this appeal. We must assume the existence of negligence and proximate cause, or at least that a fact question is presented. Otherwise, there could be no liability on the part of the School District under the provisions of Section 8 of the Tort Claims Act, and the question of waiver of governmental immu*529nity provisions of such Act would not be before us.
The only question before us is whether the allegations of appellants in this suit against the School District for personal injuries and death invoked the waiver of governmental immunity provisions of the Texas Tort Claims Act. Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976).
Appellants’ alleged damages arose from personal injuries to Eugenio Garza, Jr., and the death of Wally Garza, while passengers in a school bus at a time when the bus was being used and operated for the purpose of transporting students to school. The injuries and death resulted from a stabbing by a non-student aboard the bus.
Allegations of negligence, inter alia, on the part of the School District’s employee, the bus driver, were as follows:
“1. Negligently permitting one or more non-students to board, use, and ride [the school bus] on the occasion in question.
“2. Negligently permitting one or more persons to enter, use, and ride [the school bus] while such persons were armed with deadly weapons, including a butcher knife and a bicycle chain on the occasion in question.
“3. Negligently failing to deter and prevent acts of violence on [the school bus] on the occasion in question.
“4. Negligently failing to stop acts of violence which occurred on [the bus] on the occasion in question.”
In view of the foregoing allegations, the majority holds the School District is not liable for the personal injuries and death for the reason that such injuries to one student and death to another did not arise from the operation or use of a motor vehicle. This conclusion is based upon the interpretation of the term “operation or use” as used in Section 3 of this Tort Claims Act, wherein it is stated, in effect, that the School District “shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any ... employee acting within the scope of his employment ... arising from the operation or use of a motor-driven vehicle.... ” The majority holds that governmental immunity is waived, in a case involving a motor vehicle, only in cases involving injury or death arising from an accident involving the negligent driving of the bus or where the bus itself is in contact with the injured party causing the injuries or death. It is with this narrow and strict interpretation of Section 3 of the Act that I cannot agree.
The primary and sole purpose of operating and using the school bus on the occasion in question was to transport students to school. The injuries and death made the basis of this suit occurred while the student passengers were aboard the bus and while being transported to the school campus. While these students were aboard the bus, they were under the charge and care of the bus driver. The driver was under a duty to exercise care in safely transporting the students. Reeves v. Tittle, 129 S.W.2d 364 (Tex.Civ.App.—Eastland 1939, writ ref’d). This duty would extend from the time the student boarded the bus until he had safely alighted therefrom. See Draper v. Robinson, 106 S.W.2d 825 (Tex.Civ.App.—Eastland 1937, writ granted), modified on other grounds, 133 Tex. 280, 127 S.W.2d 181 (1939). The breach of this duty occurred while the bus was being operated and used for transporting students, and the injury and death arose from such breach of duty in the “operation or use of the motor-driven vehicle,” within the meaning of these terms as used in Section 3 of Tex.Rev.Civ.Stat. Ann. art. 6252-19.
I would readily admit that on many occasions and during incidents involving actions of the students resulting in injury to a passenger, a bus driver could not control the actions of the students and, therefore, could not prevent injuries being inflicted upon a student passenger. In such cases, the driver would not be negligent. However, the case of a non-negligent bus driver is not before us in the posture of the case at bar.
*530The majority cites, as lending support to their position, Jackson v. City of Corpus Christi, 484 S.W.2d 806, 809 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Brantley v. City of Dallas, 545 S.W.2d 284, 286 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.); Westbrook v. City of Edna, 552 S.W.2d 608, 611 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). These cases are distinguishable from our case. In the Jackson case, the plaintiffs’ allegations of negligence, as pointed out by the court, “were associated with the modes or means which the officers could have taken ... to rectify a situation that involved the resolution of a traffic problem; i. e., a vehicle stalled on a public highway. The allegations of negligence relate directly to the control of traffic.” The court held that “[they] do not in any way arise from the operation or use of a motor-vehicle.” The question of directing traffic upon a public street is not involved in our case. In the Brantley case the acts complained of were the refusal to transport a patient to a hospital in an ambulance owned by the city defendant. The court held that a “refusal to use” was not equivalent to an allegation' that the the injuries were proximately caused by negligence arising from the use or operation of a motor vehicle. We do not have a “refusal to use” factual situation before us. In the Westbrook case, the court specifically states, “The Texas Tort Claim Act does not apply to the case at bar.” (552 S.W.2d at 611).
In the case at bar, appellants have alleged acts of negligence against the bus driver, proximately causing the injury and death to student passengers while they were being transported to school. The negligence of the bus driver and the injury and death to the students occurred during and arose from the operation and use of a motor vehicle while it was being operated and used for the specific purpose for which it was intended. Under these circumstances, I would hold that the governmental immunity was waived pursuant to the provisions of Article 6252-19, §3 and § 19(A).
The School District further denied liability by its plea in bar, plea in abatement, as well as in its motion for summary judgment, for the reason that the claims made by appellants “arise out of an assault, battery or other intentional tort” and the “claims are based on a death or injury connected with an act or omission arising out of a riot and/or act of civil disobedience.”
Article 6252-19, § 14(9) (1970) provides the Tort Claims Act does not apply to any “claim based on an injury ... arising out of civil disobedience, riot, insurrection or rebellion .... ” Under the facts of the case at bar and appellants’ allegations, the occurrence complained of did not arise out of civil disobedience, riot, insurrection or rebellion. See Forbus v. City of Denton, 595 S.W.2d 621 (Tex.Civ.App.—Fort Worth 1980, writ ref’d n. r. e.). If I am mistaken in so holding, then, in any event, a fact question as to the existence of the elements enumerated in Section 14(9) would be raised precluding the trial court’s action.
Section 14(10) of Article 6252-19 provides exemptions from liability for “[a]ny claim arising out of assault, battery ... or any other intentional tort....” This exemption would apply only for such torts committed by the School District’s employees. The bus driver did not commit any act of assault or battery or any intentional tort. Therefore, the School District’s liability under the facts of this case could not be denied under this section of the Tort Claims Act.
I would reverse the judgment of the trial court and would remand the case for a trial on the merits.