# Untitled Texas Attorney General Opinion > Texas Attorney General Reports · July 2, 1941 URL: https://www.frixlaw.com/law-library/cases/4143019 ## Case - **Court:** Texas Attorney General Reports - **Decided:** July 2, 1941 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Gerald Mann - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4143019 ## Opinion text , Gerald C. Ham &xrrlN 11. TEsxAm aj~Pl%L *.=-Tom- o- Hon. T. M. Trimble OpinionNo. 0-33L6 First Assistant State He: Tort liabilityof schooldistrict-- Superintendent authorityto indemnifythird partiesfor Austin, Texas actionssoundingin tort. Dear Sir: We are in receiptof your letter of March 27, 19& In which you request the opinionof this departmentconcerningthe authorityof the Board of Trusteesof the Borger IndependentSchoolDistrictto exe- cute a lease or licensecontractcontainingthe followingprovisions: "The lessee (SchoolDistrict)expresslyassumes all liabilityfor injury or death to any studentsor instructorsin attendanceat said school,whether caused by the equipmentand material suppliedby J. M. Huber Corporation,or the conditionof the premisesor by any of the employeesof J. M. Huber CorporationVI- by soy other cause, direct or indirect,resultingin injury or death to any of said studentsor instructors. *It is understoodthat the premisesleased are in the carbonblack plant yard of J. M. Huber Corporation and all of the hasardsto studentsand inetructorsusing said premisesand passingthroughsaid plaut yard are 'expresslyassumedby the lessee. "And the said lesseepromisesand covenantsto ih- demnifyand hold haxmlessthe said J. H. Huber Corpora- tion from any and all claimsfor damagesfor injuries to personsand for deathand for damageto propertyads-' ing out of or in connectionwith the operationof said ; school on said premises. "It is understoodand agreed that J. M. Huber Corpor- ation is permittingthe use of its premisesand equipPent & studentsand instructorswithout charge;and it makes no representation as to the condition,quality,fitnessor. safety of the praaiees,mterial, equi~ent, buildings or structurer~and that lesseehereby assume full respousl- bility and liabilityfor the 0ame.e . . Hon. T. H. Trimble (0-33b6) page 2 The occasionfor the contractgrows out of an arraugementwhereby the schoolproposesto teach classesin veldingat the machine shop and yards of the lessor. The above quoted provisionsappear as a part of the agreement whereby the Companyproposesto grant its consentfor the we of its property for such purposes. School districtsare public corporationsand governmentagencies exercisinga governmentalfunction. They differfrom cities and towns in that the latter exercisea dual function,to-wit,governmentaland proprietary, while a school districtis purely a govermental agency and exercisesonly such powers as are delegatedto it by the state. It perfonnsno proprietary functionswhich are separateand independentof its governmentalpowers. In this respectit is more readilycomparableto a county,which is not held an- swerablefor its negligencein an action foundedin tort. Brown v. Trustees of~~VictoriaIndependentSchoolDistrict,(T.C.A.1938, writ refused)1l.hS.W. (2d) 9b7. The school districthas no liabilityfor actionssoundingin tort, arisingout of the performanceof its governmentalfunction. Opinion6O-u3 and O-1405,copies of which are enclosedherewith;McVey v. City of Houston (T.C.A.1925) 273 S~.W.313; Brown v. VictoriaIndependentSchool District, supra; 24 R.C.L.g60, p. 601r;37 T.J. I lh8, p. 1030 and authoritiesthere cited,particularlynotes in A.L.R. McQuillinin his work on MunicipalCorporations,2nd ed., Vo1.3, sec. 1270, makes the statementthat a amnicipalcorporation"cannotassumea liabilitywhere none legally exists.6 It is too well settledto requirecita- tion of authoritythat a board of school trusteeshas limitedauthorityand nay not bind the districtin excess of the authoritygrantedthem by statute either expresslyor by necessaryimplication. It is our opinionthat the trusteesof a school districtnay not subjecttheir school districtto lia- bility in tort where such liabilitydoes not exist in law. The situation would be analogousto an officeror agent of the State atteinptingto create liabilityon the part of the State for action6founded ia tort, or a cuamis- sioners'court contractingthat the county shall be subjectto tort liabil- ity. The lack of authorityin such izmtanceswculd semn to be fundamental. No cases directlyin point have cone to our attentionupon the ques- tion of whethera schoolboard nay enter a contractwhereby the districtbe- collies an indamitor of a third partyforhis own torts. It has been held how ever that a sumlcipalcorporationmay not beccaae a guarantorin the absenceof legislativeauthority. In Dillon,MunicipalCorporations,5th ed., Vol. II, g 8111,it is stated: “A municipalcorporationcannot, withoutlegislative authority,becaae suretyfor another corporation or an indi- vidual;cannotguaranteethe bonds or obligation6of another, or make accommodation indorsernents. Such an authoritycan- not be iaplledor deductedfrom the generaland usual powers conferredupon such corporations. Although such a oorpora- tion may have power directlyto acoanplisha certainobjwt, I -. . , Hon. T. H. Trimble,page 3 (0-33L6) and itself expend its revenuesor money therefor,yet this do66 not give or includethe power to lend it6 creditto anotherwho may be empoweredto effect the same object. &pending money by a city council,as agent6 or atiinistra- tors of their constituents,is a very differentthing fraa binding their constituentsby a contractof suretyship,. . . 'a contractwhich carrieswith it a lesion by its very M- ture.' Thus the indorsementof the bonds of a streetrail- road compaw in a city, by the city authorities,is not within the ordinaryadministrative powers of the corporation, and requiresexpresslegislativegrant.c While there is a decideddistinctionbetweencontractsof surety- ship and indemnity,they are somewhatsimilar in naturewhen considering authorityfor their execution. Neithercan be said to be of the character ordinarilyor necessarilycontemplatedin the usual artninistration and managementof the governmentalfunctioncommittedto school districts. We find no expressauthorityin our statutesfor school districtsto become indemnitorsfor the torts of third parties. The well establishedrule by which trusteeshave only limitedauthorityto bind their districts,is par- ticularlyappli&le to obligationsof this nature and authorityto bind the districtin contractsof this nature cannot be inferredfrcanthe general grant of authorityin Article 2780, R.C.S.,192.5,to manage and controlthe affairsof the district. It is also well settledthat a board of tmstees is limited in its authorityto expend the funds of its districtand may not bind the dis- trict in excess of availablerevenuesfor the currentyear. The nature and extent of the obligationrecitedin the above quoted contractwould seem to be wholly incompatiblewith the policy and purpose of this limitation. It is our opinionthat a board of trusteesof a school district does not~have authorityto bind the districtin the manuer set out in the above quoted agreement. Yours very truly APPROVEDAF% 5, 19i41 ATTORKKXGKKKRALOFTKKAS /s/ Gerald C. Mann ATTORNKY GENERAL OF TEKAS By /a/ Cecil C. Caaauack Cecil C. Camnsck,Assistant APPROVED:OPINIONCOMMITTEE BY: BWB, CHAlRMhN CCC:db:wb O.K. GKL --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4143019. Public record. Not legal advice.