Untitled Texas Attorney General Opinion ( 1988 )

June 6, 1988
Mr. W. N. Kirby Opinion No. JM-915
Commissioner of Education
Texas Education Agency Re: Whether a school district
1701 North Congress Avenue may offset workers' compensa-
Austin, Texas 78701-1494 sation benefits under article
8309h, V.T.C.S., against bene-
fits paid pursuant to section
13.904 of the Texas Education
Code (RQ-1226)
Dear Mr. Kirby:
You ask:
May a school district offset worker com-
pensation benefits received pursuant to
Article 830921 [V.T.C.S.], against sick leave
benefits paid pursuant to Texas Education
Code, Section 13.904?
You indicated in your request that this question has arisen
in connection with a situation in the Edinburg Independent
School District:
During the 1985-86 school year, a teacher
was injured by an assault to which the Texas
Education Code, Section 13.904 may apply.
The district paid the teacher's salary for
the period of time when she was unable to
work. The teacher also received worker com-
pensation benefits for the same period of
time pursuant to Article 8309h, V.T.C.S. The
district's local policy provides for
offset of the amounts paid under t;:
district's sick leave and worker compensation
programs.
You supplied with your request a copy of the district's
workers' compensation policy which was adopted on February
14, 1984, and which provides in pertinent part:
p. 4573
Mr. W. N. Kirby - Page 2 (JM-915)
The District may offset an employee's wages
paid under the adopted sick leave program
against any benefits paid under the Workers'
Compensation Law. When an employee's wage is
offset, both the employee and the District
shall make the normal contribution to the
retirement system on the amount of money by
which the wage is offset. Art. 830911, Sec.
5, V.A.T.S.
V.T.C.S. article 8309h mandates the provision of
workers' compensation insurance for employees of political
subdivisions. A school district is a political subdivision
for purposes of the article. Id. §l(l). Section 5(a) of
article 8309h provides in part:
The compensation herein provided for shall
be paid from week to week and as it accrues
and directly to the person entitled thereto,
unless the liability is redeemed as in such
cases provided elsewhere herein. Provided
further. however, that anv and all sums for
incaoacitv received * accordance with
ChaDter 325, Acts of tie 50th Leaislature,
1947. as amended /Article 1269m. Vernon's
Texas Civil Statutes). and anv other statutes
now in force and effect that DrOVide for
pavment for incaoacitv to work because of
iniurv on the iob that is also covered by
this Act are herebv offset as aaainst the
benefits orovided under this Act to the
extent aoolicable, and any sums paid under
Article III, section 52e, of the Texas
Constitution, are offset against the
week-to-week benefits otherwise payable under
this Act. (Emphasis added.)
The underscored language was added by Acts 1975, 64th Leg.,
ch. 404, and took effect June 19, 1975.
The central question here is whether sick leave
benefits received by a teacher pursuant to Education Code
section 13.904 are, in the words of section 5, article
8309h, "sums for incapacity received in accordance with
. . . any other statutes now in force and effect that
provide for payment for incapacity to work because of injury
on the job that is also covered by [article 8309h]. . . .'I
If the sick benefits in question are such asums" they are to
be "offset as against the benefits provided under [article
p. 4574
Mr. W. N. Kirby - page 3 (JM-915)
8309h] to the extent applicable." Education Code section
13.904 provides in pertinent part:
(a) A state minimum sick leave pr;zi;z
consisting of five days per year sick
with no limit on accumulation and transfer-
able among districts shall be provided for
every teacher regularly employed in the
public free schools of Texas. Local school
districts may provide additional sick leave
beyond this minimum.
. . . .
(c) Each district's local board of
education shall establish a sick leave plan,
and shall administer the program to assure
compliance with the intent of the law that
leave shall be approved only on the basis of:
(1) an illness of the teacher;
(2.)an illness of a member of the
teacher's immediate family;
(3) a family emergency: or
(4) a death in the teacher's immediate
family.
. . . .
(f) In addition to all other days of leave
provided by this section or by the school
district, a teacher or another professional
employee of a school district who is
physically assaulted during the performance
of his regular duties is entitled to the
number of days of leave necessary to
recuperate from all physical injuries sus-
tained as a result of the assault. Days of
leave taken under this subsection shall be
reported and reimbursed as sick leave in
accordance with Subsection (b) of this
section, but may not be deducted from accrued
sick leave. The period provided in this
subsection shall not extend more than two
years beyond the date of the assault.
P. 4575
Mr. W. N. Kirby - Page 4 (JM-915)
-,
Section 13.904 provides for three different kinds of sick
leave benefits: state minimum sick leave (five days per
year) ; additional sick leave as may be provided by a local
school district; and what we will characterize as "assault
sick leave" under subsection (f).
I~Assault Sick Leave" and Article 8309h.
The assault sick leave provision, subdivision (f) of
section 13.904, was added by Acts 1983, 68th Leg., ch. 334,
and took effect on September 1, 1983 pursuant to section 3
of that act. It was therefore not "in force and effect"
when the offset provision of section 5(a) of article 8309h
was enacted and took effect in 1975 (see sunra, p. 3).
Therefore, in that they were not provided for by statute "in
force and effect" at the time article 8309h section 5(a) was
enacted and took effect in 1975, assault sick leave benefits
under Education Code section 13.904, subsection (f) may not
be offset under article 830911, section 5(a), against the
workers' compensation benefits provided for in article
8309h.
State and Local Sick Leave and Article 8309h
In contrast, the provisions of subsection (a) of
Education Code section 13.904 regarding state minimum sick
leave benefits, and additional benefits the local district
may provide, have been in effect since 1969 (Acts 1969, 61st
Leg., ch. 874) and were thus "in force and effect" when the
offset provision of article 8309h was enacted in 1975. The
next issue for consideration is then whether the provision
of section 13.904(a) with respect to state and local sick
leave benefits is, in the language of article 830911, section
5, a statute that "provide[s] for payment for incapacity to
work because of injury on the job that is also covered by
[article 8309h].11 If so, such state and local sick leave
benefits are to be offset against workers' compensation
benefits received under article 8309h. For the reasons
elaborated below, we are of the opinion that state and local
sick leave benefits under section 13.904(a) may not be
offset under article 830911, section 5.
Article 8309h, section 5, specifically cites two
provisions for benefits which are to be offset, or against
which workers' compensation benefits are to be offset:
V.T.C.S. article 1269m and Texas Constitition article III,
p. 4576
Mr. W. N. Kirby - Page 5 (JM-915)
section 52e.l In our opinion, consideration of these two
specific provisions cited gives an indication of the scope
of the section 5 language referring to "other
statutes . . . that provide for payment for incapacity to
work because of injury on the job."
The pertinent provisions of article 1269m (codified in
1987 as section 143.0452(a) and (b), Local Government Code)
were found in section 26 of that article and have been "in
force and effect," and substantially unchanged, since before
the enactment of the offset provision of section 5 of
article 830911 in 1975:
Permanent and temporary employees in the
classified service shall be allowed a total
of sick leave with full pay computed upon a
basis of one and one-fourth (l?) full working
days allowed for each full month employed in
a calendar year so as to total fifteen (15)
working days to an employee's credit each
twelve (12) months.
Employees shall be allowed to accumulate
fifteen (15) working days of sick leave with
pay in one (1) calendar year.
Sick leave with pay may be accumulated
without limit and may be used while an
employee is unable to work because of any
bona fide illness. In the event that the
said emnlovee can conclusivelv Drove that the
illness was incurred while in oerfonnance of
his duties, an extension of sick leave in
case of exhaustion of time shall be aranted.
(Emphasis added.)
Acts 1957, 55th Leg., ch. 391 at 1175. (The underscored
language was codified in Local Government Code, section
143.045(b) as follows: "If an ill fire fighter or police
officer exhausts the sick leave and can conclusively prove
1. &g the discussion in footnote 3 of this opinion
regarding the holding of El Paso Countv v. Jeffers, 699
S.W.2d 375 (Tex. App. - El Paso 1985, no writ) with respect
to article III, section 52e, and the legislative action
taken subsequent to that decision.
p. 4577
Mr. W. N. Kirby - Page 6 (JM-915)
that the illness was incurred in the performance of duties,
an extension of sick leave shall be granted.")
Similarly, article III, section 52e of the Texas
Constitution was adopted in 1967, and provides in pertinent
part:
Each county in the State of Texas is
hereby authorized to pay all medical
expenses, all doctor bills and all hospital
bills for Sheriffs, Deputy Sheriffs,
Constables, Deputy Constables and other
county and precinct law enforcement officials
who are injured in the course of their
official duties; providing that while said
Sheriff, Deputy Sheriff, Constable, Deputy
Constable or other county or precinct law
enforcement official is hospitalized or
incapacitated that the county shall continue
to pay his maximum salary; providing,
however, that said payment of salary shall
cease on the expiration of the term of office
to which such official was elected or
appointed. (Emphasis added.)
Both section 26 of article 1269m (now Local Government
Code section 143.045 (a) and (b)) and article III, section
52e of the Texas Constitution specifically provide for
benefits where persons are injured or "incur illnesses" in
the course of their duties.
In our opinion, the specific citation of article 1269m
and Texas Constitution article III, section 52e in article
830921, section 5, indicates that the legislature intended
that the words "any other statutes . . . that provide for
payment for incapacity to work because of injury on the job"
refer to other statutes like article 1269m and Texas
Constitution article III, section 52e -- i.e., other
statutes that specifically provide for '*pa ent for
incapacity to work because of injury on the job." ?F
2. Such construction comports with the doctrine of
eiusdem aeneris, a tVprimeq*rule of statutory construction
which requires that "where in a statute general words follow -
a designation of particular subjects . . . the meaning of
the general words will be restricted by the particular
(Footnote Continued)
p. 4578
Mr. W. N. Kirby - Page 7 (JM-915)
P
The provisions of Education Code section 13.904 which
were in "force and effect" when the offset provision of
article 830921, section 5 was enacted in 1975 did not
specifically provide for payments for l'incapacity to work
because of injury on the job" and thus payments received
under section 13.904 are not subject to offset under section
5 of article 8309h.
This conclusion is reinforced by the ruling in Attorney
General Opinion JM-447 (1986) that sick leave benefits
granted to county officials and employees under former
article 3912k were not subject to offset under section 5 of
article 8309h. Article 3912k made no specific provisions
for payment for incapacity to work because of injury on the
job, but merely authorized the county commissioners of a
county to
fix the amount of compensation, office
expense, travel expense, and all other
allowances for county and precinct officials
and employees who are paid wholly from county
funds. . . .
,- JM-447 is the only opinion of this office dealing with
the scope of the offset provisions of section 5 of article
830911.3
(Footnote Continued)
designation in such statute." Farmers' & Mechanics' Nat.
Bank v. Hanks, 137 S.W. 1120 (Tex. 1911). See also Stanford
V. Butler, 181 S.W.Zd 269 (Tex. 1944) and Hammond v. Citv of
Dallas, 712 S.W.2d 496 (Tex. 1986).
3. Three court opinions have considered section 5 of
article 8309h, but none is dispositive of the issues
presented here. Citv of Corous Christi v. Herschbach, 536
S.W.2d 653 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd
n.r.e.) held that section 5 operated prospectively and could
not be applied to offset benefits received under article
1269m where the injury in question had occurred prior to the
adoption of section 5.
Anaelina Countv v. Modisette, 667 S.W.2d 881 (Tex. App.
- Beaumont 1984, no writ) dealt with pension benefits and
the holding there turned on a reading of the proviso of
section 5, not quoted above because not relevant to the
present issue, that:
(Footnote Continued)
p. 4579
Mr. W. N. Kirby - Page 8 (JM-915)
Finally, in support of our conclusion that sick leave
benefits under Education Code section 13.904 may not be
offset under the provisions of article 8309h, we note the
general rule that workers' compensation provisions are to be
construed liberally in favor of claimants. See. e.a., Stott
v. e s molove r s Insurance Association, 645 S.W.2d 778
(Tex. 1983).
(Footnote Continued)
under no circumstances shall an employee's pension
benefit be reduced as a result of his injuries or any
compensation received under the provision of this Act,
unless such reduction is a result of a pension revision
passed by majority vote of the affected members of a
pension system.
El Paso Countv v. Jeffers, 699 S.W.2d 375 (Tex. App. -
El Paso 1985, no writ) ruled that payments received pursuant
to Texas Constitution article III, section 52e could not be
offset under section 5 because to apply section 5 would be
tantamount to holding that a constitutional provision could
be amended by a mere act of the legislature.
Acts 1987, 70th Leg., ch. 111, 51, subsequently added
to section 5 the language:
and any sums paid under Article III, Section 52e, of
the Texas Constitution, are offset against the
week-to-week benefits otherwise payable under this Act.
In light of Jeffers, it would appear that this provision can
be read as constitutional only if it is deemed to provide
that workers' compensation benefits received under article
830911 are to be reduced to the extent that benefits are
received under article III, section 52e. The offset
provision of section 5 has been read generally to provide
that it is the other sums received for work-related
incapacity that are to be reduced to the extent workers'
compensation benefits are received under article 8309h. See
generally the discussion as to which benefits offset which,
in Anaelina County at 884.
p. 4580
Mr. W. N. Kirby - Page 9 (JR-915)
SUMMARY
The offset provision of V.T.C.S. article
8309h, section 5 does not apply to sick leave
benefits received pursuant to Education Code
section 13.904.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 4581