Untitled Texas Attorney General Opinion ( 1969 )

. . NE OF TEXAS AUSTIN. %-,CXAS 78111 November 25, 1969 Honorable Harvey Davis Executive Director Texas State Soil and Water Conservation Board 1018 First National Building Temple, Texas 76501 Opinion No.M-521 Re: Texas Torts Clalms Act - Insurance purchases by Soil Conservation Districts from State appropriated money; power to tax to pay claims; and personal liability of Dear Mr. Davis: District Directors You have requested our opinion on behalf of the State Soil and Water Conservation Board, and its subordinate dis- tricts thereunder, seeking the answer to certain questions under the Texas Torts Claims Act (Chap. 292, Acts of the 61st Leg., R.S., 1969, page 874, effective January 1, 1970, codi- fied as Article 6252-19, Vernon's Civil Statutes). Your cen- tral state agency and any local soil conservation district created thereunder can act only in a governmental capacity so as to carry out soil conservation practices and functions in cooperation with the Federal Government. Your firs,tquestion asks whether your state agency or districts created under the Soil Conservation Act, may pur- chase insurance covering liabllitles of the state agencies or districts under the Texas Torts Claims Act from money received from the State or earnings from money received from the State? The answer to this question is "No" if payment is to be made out of money appropriated by the 61st Legislature. There is a prohibition against expenditure of any such appropriated sums of money in the current biennium for the purchase of insurance to cover claims under the Torts Claims Act (General Appropriations Act, H.B. 2, 6lst Leg., 2nd C.S., Art. V., General Provisions, Sec. 57). -2484- Hon. Harvey Davis, page 2 (M-521) The second question involves the matter of whether a State Soil and Water Conservation District can levy ad valo- rem taxes for the payment of a judgment under the Texas Torts Claims Act. The District cannot levy a tax to pay such judg- ment, without a favorable election therefor. By the provi- sions of the Texas Conservation Amendment (Art. XVI, Section 59, (c) Constitution of Texas), a soil and water conservation district Is a reclamation district and, therefore, is subject to the proviso that: ...the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation dis- trict unless such proposition shall b f submitted to the qualified property tzxp$?ig voters of such district and the proposition adopted." (Emphasis added.) We duly note that uf;lder Section 2 (l), your agency and each local district are units of government', and that Sec- tion 11 of the Torts Claims Act, provides for taxing power to districts which have a final judgment rendered against them under said Act. This provision insofar as it authorizes a tax levy without a prior vote of the voters of such district and insofar as it applies to districts created pursuant to the pro- vision of Article XVI, Section 59 of the Constitution of Texas is inapplicable, as such would otherwise be in violation of the last proviso of Subsection (c) of said Conservation Amendment. Your third and final question relates to whether local soil conservation district directors can become personally li- able for not being able to satisfy a judgment should one arise under the Texas Torts Claims Act, Any functions performed by soil conservation districts, or by your state agency, are func- tions governmental in nature; such district or agency ha:. no Pro- prietary functions. Consequently, the directors of the SOU Conservation Districts, or the personnel in your agency, would not be personally liable as individuals for any such claim brought against the State of Texas. Section 14, Subsection (7) and Section (15), of the Texas Torts Claims Act. Your attention is further invited to the provisions therein which leave the voluntary methods of payment or non-payment of such a judgment by means of taxation, or by appropriation, to the "discretion" of those who govern your agency or the particular local soil conservation district involved. -2485- . . Hon. Harvey Davis, page 3 M-521) SUMMARY ------- The General Appropriation Act for the 1969-70 biennium prohibits purchase by soil and water conservation districts of any insurance covering liabilities under the Texas Torts Claims Act with appro- priated money. District directors are not personally liable under the Texas Torts Claims Act for failure to provide a method for pay- ment of a final torts claims judgment. Soil and water conservation districts cannot levy ad valorem taxes for the pay- ment of a judgment indebtedness under the Texas Torts Claims Act without prior ap- proval in an election by the voters of the district pursuant to Article XVI, Section 59(c), Constitution of Texas. Atto#ey General of Texas Prepared by Roger Tyler Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Jim Swearingen Houghton Brownlee Jack Sparks Malcolm Quick MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First Assistant -2486-