Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
April 9, 1979
MARKWHITE
AttorneyGeneral
Honorable Gibson D. (Gibl Lewis Opinion No. Mw-10
Chairman
House Committee on Re: Whether a regional transit
Intergovernmental Affairs authority established under article
State Capitol lllSx, V.T.C.S., is covered by the
Austin, Texas Tort Claims Act
Dear Representative Lewis:
You have requested our opinion as to whether the Texas Tort Clalms
Act, article.625249, V.T.C.S., his applicable to a regional transit authority
created pursuant toarticle lll6x, V.T.C.S. The Tort Claims Act applies to
every “unit of government” in the state, section 3, but it is not applicable
“to any proprietary function of a municipality.” Section 16(a). You ask
whether a regional transit authority falls within the exception of section 16.
Since it is our view that a’reglonal transit authority does not exercise any
proprietary functicn, we need not address the question of whether it may be
deemed a “municipality” for purposes of article 6252-B.
It is clear that a regional transit authority created pursuant to article
defined as a “public body corporate and politic,” section 6(a), ls a “unit
lll6x,
of government” within the meaning of the Tort Claims Act. Section S(a) of
article lll6x provides that a duly created authority exercises
public and essential governmental functions, [and
has] all the powers necessary or convenient to carry
out and effectuate the purposes and provisions of this
Act, including, but not limited to, the following. . . :
....
(e) . . . the power to acquire, construct, complete,
develcp, own, operate and maintain a [rapid transit]
system or systems within its boundaries . . .
(Emphasis added). Under the language of the statute, then, the operation of
a rapid transit system by an authority is described as a “governmental
function.”
p. 27
Honorable Gibson D. (Gib) Lewis - Page Two (NW-101
In City of Corsicana v. Wren, 317 B.W.2d 516 (Tex. 1956), the Supreme Court
considered a statute containing a legislative declaration that a municipality’s operation of
an airport is a governmental functicn. The court held that, so long as
the legislative classification as governmental (or nongovernmental)
CnMot be called arbitrary or clearly at vah3nCe with ‘well
established and well defined’ law on the subject, the classification
ought to be respected by the courts.
317 S.W.2d at 520. We do not believe that the classification at issue here mav be so
labeled. & Imperial Production Corp. v. City of Sweetwater, 210 P.2d 917 (5th Ci;. lSS4);
Braun v. Trustees of Victoria Independent School District, ll4 S.W.2d 947, 950 (Tex. Clv.
App Ban Antonio 1936, writ ref’d); Garaa v. Bdinburg Consolidated School District, 576
S.W:2d916 (Tex. Civ. App. - Corpus Christi 1979); Pontarelli Trust v. City of McAllen,
465 B.W.2d 604 (Tex. Civ. App. - Corpus Christi 1971,no writ). In our opinion, Wren
compels the conclusion that the legislature is authorized to classify the powers-
regional transit authority as exclusively governmental. As a result, it is our view that the
Tort Claims Act is applicable to a regional transit authority created pursuant to article
lll6x.
SUMMARY
The Texas Tort Claims Act, article 6252-19, V.T.C.B., is applicable
to a regional transit authority created pursuant to article lll6x,
V.T.C.S.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
C. Robert Heath, Chairman
David B. Brooks
p. 28
Honorable Gibson D. (Gib) Lewis - Page Three (Mw-10)
Rick Gilpin
William G Reid
Bruce Youngblood
p. 29