Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
July 8, 1982
MARKWHITE
Attorney General
Bonorable George N. Rodriguez Opinion No. MU-490
Suprmne Court Building
El Paso county Attorney
P. 0. Box 12549
Aurlin. TX. 78711.254S Room 201. City-County Building Re: Authority of county to
512l47525Dl El Peso, Texas 79901 purchase automobile liability
Telex 9lW74.1387 Insurance on county patrol
Telecopier 512/4759299 vehicles
lW7 Hain St.. suite 14co Dear Nr. Rodriguez:
Dallas. TX. 752914709
214l742-S944 You have requested an Attorney General’s Opinion regarding
liability insurance for county owned vehicles. The facts are as
4524 Alberta Ave.. Suite 160
follows: El Paso County has a population of less than 1,400,OOO. The
El Paso. TX. 799052793 comissioners~court elected to provide transportation for its sheriffs
91Y533-3454 and deputies, as mandated by V.T.C.S.. article 6877-1. by furnishing
“adequate motor transportation including all expenses Incidental to...
upkeep and operation.” The commissioners court does not provide
1220 Dallas Ave.. Suite 292
Houston. TX. 771JOZ-S995
automobile liability insurance against claims brought under article
z1- 6252-19, section 3, V.T.C.S.
You have esked specifically:
806 Bradway. Suite 312
Lubbock. TX. 79491.2479
909/747-5239
Does the County Commissioners Court have the paver
to provide for liability insurance on motor
vehicles owned or leased by the county for use by
1309 N. Tenth. Suite B the sheriff and his deputies as patroi vehicles?
McAlbn. TX. 79591.1685 and
512mS24547
Does the County Commissioners Court have the duty
2W Main Ptaza. Suite 4W to provide liability insurance on motor vehicles
San Antonio, TX. 782D52797 owned or leased by the county for use by the
51212254191
sheriff and his deputies as patrol vehicles in a
county with a population of less than 1,400,OOO
An Equal Opportunity/ according to the most recent federal census?
Affirmative Action Employer
The Texas Tort Claims Act. article 6252-19. section 3 states:
Each unit of government in the state shall be
liable for money damages for personal injuries or
death when proximately caused by the negligence or
wrongful act or omission of any officer or
employee acting within the scope of his employment
p. 1741
Honorable George N. Rodriguez - Page 2 (k&490)
or office erieing from the operation or use’ of a
motor-driven vehicle....
Section 9 of the act further provides:
[A]11 units of government are hereby expressly
authorized to purchase policies of Insurance
providing protection for such unite of government.
their officers, agents and employees against
claims brought under the provisions of this
Act....
Counties are included in the definition of the phrase “unite of
government” in section 2 (1). Thus, in the Texas Tort Claims Act.‘the
legfslature gave express authority to counties to purchase Insurance
to protect against liability for money damages for personal injury or
death directly caused by the negligence or wrongful acts or omissions
of any officer or employee acting within the scope of office arising
from the operation or use of a motor vehicle (hereinafter “liability
insurance”). The answer to your first ~queetion is that county
commissioners courts do have the authority to purchase the liability
insurance described above.
In answer to your second question, it is our opinion that the
cotmissioners court does not have a duty to provide liability
insurance. Ue base this opinion on the fact that article 6701-h.
section 33, V.T.C.S. (Safety Responsibility Law), exempts the United
States; Texas,-, and politieel ~m~bdivisiuna dt79iLy state from the
liability insurance required in article 6701-h. section IA(a).
However, other leglelatlon requires liability insurance for the state
and for certain political subdivisions. By the enactment of article
2372h-9. section 2(a), V.T.C.S., the legislature required liability
insurance for sheriffs’ or constables’ motor vehicles in counties with
e population of over 1.400.000. Likewise. article 999e. V.T.C.S.,
requires the state and every incorporated city and town to provide
liability insurance for motor vehicles used by peace officers and fire
fighters. The total effect of the three statutes is that the Safety
Responsibility Law exempts the state and political subdivisions of the
state from the requirement of liability insurance; however, by virtue
of article 999e and article 2372h-9, section 2(a). the state,
incorporated tovns and cities, and counties of over 1,400,OOO are
required to have liability insurance.
It has been argued that article 6877-1(a), V.T.C.S.. requires
counties to purchase liability insurance. That article provides:
The County Commissioners Courts of this State
are directed to supply and pay for transportation
of sheriffs of their respective counties and their
p. 1742
/
.”
. ’ Honorable George N. Rodriguez - Page 3 (Mw-490)
deputies to and from points within this Stete.
under one of the four (4) following Sections:
(a) Such sheriffs and their deputies shall be
furnished adequate motor transportation including
all expense incidental to the upkeep end operation
of such motor vehicles.
As stated earlier, the El Paso commissioners court has elected to
“furnish adequate motor transporation including all expense Incidental
to the upkeep and operation of such vehicles” as its method of
compliance with the mandate to supply transportation to sheriffs. The
question Is whether El Paso County has the duty to supply liability
insurance on its vehicles as an expense incidental to their operation.
It has been suggested that counties are Included in the
exceptions given in article 999e, section l(a), reproduced below:
The state and every incorporated city or town
shall provide for insuring peace officers~and fire
fighters in its employ against liability to third
persons arising out of the operation, maintenance,
or use of any motor vehicle owned or leased by the
state, city or town.
A county has only those powers and duties clearly set forth in the
constitution or statutes. Mills County v. Lampasae County, 40 S.W.
403, 404 (Tex. 1897); Harrison County v. City of Marshali. 253 S.W.2d
67, 69 (Tex. Civ. App. - Fort Worth 1952, writ ref’d). Counties are
not mentioned in article 999e. No duty has been clearly set forth.
In addition, if the word “state” included counties, there would be no
need for the legislature to require liability insurance for counties
of over 1,400.OOO. Therefore, article 999e. section l(a) does not
impose a duty on counties.
Section 9 of the Texas Tort Claims Act, vhich provides the
authority for the purchase of liability insurance, is permissive only.
There is no statutory or constitutional requirement for the purchase
of liability insurance except those cited earlier. In the absence of
an express duty, it is our opinion that counties with a population of
less than 1.400.000 have the authority, but not the duty. to provide
liability insurance.
SUMMARY
Counties with a population of less than
1.400.000 have the authority, but not the duty, to
purchase Insurance policies to protect against
liability for the negligence or wrongful acts or
p. 1743
Honorable George N. Rodriguez - Pegs 4 OR+490)
omissions of any officer or employee acting vithin
the scope of employment *rising from the
operation, use, or malntenaace of a motor vehicle
owned by the county.
w
Attorney Ganerel of Texas
-JOANW. FAINTER, JR.
First Assistant Attorney General
RICRARBE. GRAYIII
Executive Assistent Attorney General
Prepared by Pstricia Rinojosa
Assistant Attorney General
APPROVEB:
OPINIONCOMMITTBE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Binojoea
.- Jim Ploellinger .'
Edna Ramon
Bruce Youngblood
p. 1744