Untitled Texas Attorney General Opinion ( 1969 )


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  • *_ . EA NEY GENERAL. OF TEXAS AUSTIN. TEXAS 78711 CRAWYORU c. MAR-rlN *x-rORNEW GEZWERAI. December 2, 1969 Honorable Joe B. Roberts Opinion No.M-527 Chairman, Texas Industrial Accident Board .Re: Whether, in light of Senate State Insurance Building Bill 580, Acts of,the 61st Austin, Texas' 78701 Legislature, Regular Session, 1969, a county which is not a subscriber to some form of workmen's compensation in- surance,has waived its common law defenses~to a suit for injury or death of a county Dear Mr. Roberts: ~,employee. Your recent request for the opinion of this office is concernedwith Senate Bill !i80,, es passed during the-~regular session of ~the 6lst Legislature, 1969, which amends Section 6 of Article 8309c, Vernon's Civil Statutes. .Particularly,you ask whether a county which is not a-subscriber to some form of workmen's compensation insurance has waived its common law defenses to a suit brought against the county to recover for the injury or death of one of its employees. Your request points out that amending Section 6 of.Article 8309c, V.C.S., to include Section.4 of Article 8306,~V.C.S;, has given rise to this inquiry,-and you have directed attention to the case of Boswell v. Cityof Sweetwater,M341,S,W.2d 664 (Tex.Civ.App.~ 1961, error ref.) in this regard. Senate Bill 580 reads, in part: I. . . "Set,..6. Adoption of General Workmen's Compensation Laws. "(a) The following laws as amended or as they may hereafter be amended are.adopted except to the ertent,that they are inconsistent with this Act: -2509- . . . Hon. Joe B.*Roberts, page 2 (R-827) "(1) Sections 1, 3, 3a, 3b, 4, . . . of Article 8306, Revised Civil Statute8 of Texas, 1925, as amended; It . . ."' (Emphasis added.) Section 4 of Article 8306,"V.C.S., reads: "Sec. 4. Employes whose employers are not at the time of the injury subscribers.to said as- sociation,,and the representatives and beneficiaries of deceased employes who at the time of the injury were working for nonsubscribing~employers can not participate ,inthe~benefits of said insurance as- sociation, but they shall be entitled to bring suit and may recover judgment against such employers, or any of them, for all damages, sustained by reason of any personal injury received inthe course of employment or by reason of death resulting from such injury, and the provisions of ,section 1 of this law shall be applied in all~.suchactions." Section 1 of Article 8306, V.C.S., to which Section 4 refers, reads: "Section 1.. In an action to recover damages for personalsknjuries sustained...byanemploye in the course'of his employment, or for death result- ing from personal injury so sustained, it shall not be a defense: "1. That the employe was guilty of contribu- tory negligence. "2. That the injury was caused by,the negli- tence of a fellow employe. "3 . That the ~employe had assumed the risk of the injury incident to his employment; but such employer may defend in such action,.onthe ground that the injury was caused by the willful intention of the employe to bring about the injury, or was so caused while the employe was.,ina~,stat.eof in- toxication. "4 . In all such actions against an employer -2510- Hon. Joe B. Roberts, page 3 (M-527) who is not a subscriber, as defined hereafter this laws,it shall be necessary to a recovery the plaintiff to prove negligence.of such employer or some agent or servant of such employer acting within the-general scope of his employment." In light of the foregoing, it would appear that counties . which are not subscribers to some form of workmen's compensation insurance shall be denied the protection of their common law de- fenses when suit has been brought against the county for the in- jury or death.of a county employee.- However, Section 3 of Article 8309c, reads, in part: "Sec. 3. The county is hereby authorized to either be self-insuring or that it.purchase work- men's compensation,insurance for its employees from any company authorized to do:,businessin Texas,,and is charged with the~administration Of this Act. zt is expressly understood that the provision authorizing counties.to.provide such compensation or insurance is permrsslve and not mandatory;-provided, however, that 'inany county of this state, the Commissioners Court on its own motion may call an election..forrthepurpose of determining whether,the county shall adopt the provisions-of this Act. If a majority of the qualified voters at such an election votes for the adoption of the provisions.of this Act, the provisions of this Act shall thereafter be ap- plicable to such county,-and in such event it shall be-.mandatorythat such county be either self-insuring,or that it purchase.workmen's compensation.~insurancefor its employees from any company authorized to do business in Texas, and is charged with the administration of this Act. "The Commissioners Court may by proper order put into effect the provisions of this Act. The Commissioners Court of the county shall notify the Board of the effective date of such insurance, stating in such notice the nature ~of the.work per- formed by the employee of the county, the approxi- mate number of employees, and the estimated amount of payroll." (Emphasis added.) Section 3 of Article 8309c prescribes the manner in -2511- . Hon. Joe B. Roberts, page 4 (M-527) which Article 8309c shall be put into effectin a county. Section 3 is expressly, by its terms; permissive, not mandatory.- There- fore, until Article 8309~ is put into.effect in a'county by one of the means outlined in Section 3,thereof;none of.the pro- visions of Article 8309c apply to said-county, inc.ludingthe amended Section 6 of Article 8309c; which does away with the common law defenses. It should be noted that this~conclusion disagrees with certain statements,which appear in,~the,.crase-.of-~-~we'll v. City of Sweetwater.,supra. However, it is the opinion of this office that such statements in said case.are:dictum, as they deal with a situation which was not before the court for ~argument or decision, and; ,therefore,this office.doesnot consider such statements as~controlling on the,.issue. It is the opinion of this office that Senate Bill 580, which amends Section 6 of Article 8309c,,.doeSnot eliminate the common law.defenses of a county which.has not taken the steps necessary to put Article 8309c into-effect in such county. Section.6 of Article 8309c, V.C.S., as amended, dOeB not a&to abolish the common law defenses of a county until Article 8309c becomes effective in such county. Article 8309c does not become effective in a county until such time as such actions as are indicated in.,Section3 thereof.are aken. h eneral of Texas Prepared.by Bill Corbusier Assistant~Attorney General -2512- .I . Hon. Joe B. Roberts, page 5 (M-527) APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton; Vice-Chairman Houghton Brownlee Wardlow Lane Roger Tyler MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First Assistant -2513-

Document Info

Docket Number: M-527

Judges: Crawford Martin

Filed Date: 7/2/1969

Precedential Status: Precedential

Modified Date: 2/18/2017