2011 Texas Attorney General Reports and Opinions 1 (2011)

handle is hein.sag/sagtx0092 and id is 1 raw text is: ATTORNEY GENERAL OF TEXAS
January 4, 2011
Raymund A. Paredes, Ph.D.                 Opinion No. GA-0830
Commissioner of Higher Education
Texas Higher Education Coordinating Board  Re: Authority of a community college to purchase
Post Office Box 12788                     liability insurance to cover claims arising from the
Austin, Texas 78711                       operation of a child-care center (RQ-0846-GA)
Dear Commissioner Paredes:
You ask whether the Texas Constitution forbids San Jacinto College (the College) from
purchasing liability insurance coverage for operating child-care centers You explain that the
College operates child-care centers licensed by the Texas Department of Family and Protective
Services. Request Letter at 1. Section 42.049 of the Human Resources Code requires licensed child-
care centers to maintain liability insurance. TEX. HUM. RES. CODE ANN.  42.049(a) (West 2001).
You are concerned that the College would receive nothing in return for buying liability insurance
because the College is generally immune from liability. College Brief at 2. Consequently, you ask
whether complying with section 42.049 would violate article In, section 52(a), of the Texas
Constitution, which forbids public funds from being used for private purposes. See TEx. CONST. art.
m,  52(a) (prohibiting the Legislature from authorizing a political subdivision to grant public
money or thing of value in aid of, or to any individual, association or corporation); see also Request
Letter at 1.
Article I, section 52(a), prohibits political subdivisions from making gratuitous payments.
Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377,
383 (Tex. 2002).2 A payment is not 'gratuitous' if the political subdivision receives return
consideration. Id. Thus, the College could purchase liability insurance under section 42.049
without violating article m, section 52(a), if the College received consideration in return.
While a community college's operation of a child-care facility might come within the scope
of sovereign immunity, we have found no authority definitively declaring that it does. Indeed, Texas
'See Request Letter at 1; Memorandum attached to Request Letter from San Jacinto College at 1 [hereinafter
College Brief] (documents available at http://www.texasattorneygeneral.gov).
2The College is a political subdivision of the state. Goss v. San Jacinto Junior Coll, 588 F.2d 96, 98-99,
modified per curiam on reh'g, 595 F.2d 1119 (5th Cir. 1979).

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