Untitled Texas Attorney General Opinion ( 1966 )

August 29, 1966
Honorable Gene Russell Opinion No. C-744
County Attorney
Eurnet County Re: Construction of Article
&met, Texas 83Qgc, Vernon's Civil
Statutes, relative to
counties becoming self-
Insuring or purchasing
workmen's compensation
Dear Mr. Russell: insurance. :
Your letter requesting an opinion of this office
reads, in part, as follows:
"The Constitution of the State of Texas
(Article III, Sec. 60) authorized the Leglsla-
ture to pass a law permitting the counties of
Texas to become self-insuring or to purchase
workmen's compensation Insurance. Article
8309c (at Sectlon3), In fact gives the
counties such authority.
"The Act provides (at Section 16) that
the county may set aside. . .an amount not to
exceed 5% of the annual employee payroll for
the payment of costs etc.authorized by the
Act. Section 3 provides that the Act shall
not be mandatory but that If the provisions
of the Act are adopted, thz it shall be
mandatory that the counts either self-
insuring or that it purcha~seworkmen's
compensation insurance. . . .
"(1) Does the Act re.ferto lself-insuring'
as the status of the county, if it adopts the
provisiohs of the Act (but without taking out
insurance with a private carrier), or to,the
stertusof a county which does'not choose to
come under the Act at all, or to both?
"(2) Does it in any way purport to enlarge
the liability of a county which does not elect
to come under the provisions of the Act?
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Hon. Gene Russell, page 2 (c-744)
“(3) And, finally, if a county does electto
come under the Act, does the authorization for It
to set aside 2 to 5% of the annual employee pay-
roll in any respect imply that its statutory llabll-
ity Is limited by the amount which It does set aslde
If it sets aside less than the 5% referred to (or
is this last simply a~flnanclng provision implying
no correlation with liability)." (Enumeration of
questions added for clarification.)
Section 60 of Article III of the Constitution of
Texas provides that the Legislature has power to pass laws
necessary to provide Workmen's Compensation Insurance for
all county employees. Article 8309~ of Vernon's Civil
Statutes provides Workmen's Compensation for all county
employees and adopts liability provjslons of the general
Workmen's Compensation statutes Including Article 8306
and 8307.
In answer to vour first auestion,.it is our
opinion that the term "self-insuring" as.applled to
counties refers to the status of a county which has adopt-
ed the Act (Article 83ogc) and chooses to carry Its own
risk of liability as opposed to purchaslng.coverage of
this risk under the Act from a private carrier.
In answer to your second question,.it Is hour
opinion that the Legislature did not intend that counties
which elected to become self-insurers or subscribers under
Workmen's Compensation Act should be deprived of their
common law defenses nor have their risk of livability
enlarged by theirchoice of nonparticipation. In answer
to your second question,~it is noted that Section 6 of
Article 83ogc, although adopting certain provisions of
Article ~8306, Vernon's Civil Statutes, "insofar as appli-
cable," did not adopt.Section 4 of.that Article. Section
Aprovides for the rights of employees whose employers
are not subscribers to that Act. Section 4 further pro-
vides that such an employee may bring suit against and
recover damages from an employer to whom that Act applies.
Said Section 4 further states, "and the provisions of
Section 1 of this law shall be applied in all such actions."
Section 1 provides for the abolition of the common law
defenses of contributory negligence and assumed risk. It
is our opinion that by not adopting Section 4 of Article
8306, the Legislature did not Intend that counties who
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Hon. Gene Russell, page 3 (c-744)
elected not to become a self-insurer or subscriber under
the Act should be decrlved of their common law defenses.
ppwell v. City of Sweetwater, 341 S.W.2d 66: (Tex. Civ.
. 961, error ref.)
In answer to your third question, It Is our
opinion that the authorization for a county to set aslde
up to 5s of the annual employee payroll is a financing
provision and has nothing to do with liability. If adop-
tion of the Act is voted by a county, then the statutory
provisions shal~lbe applicable to that county, and the
county Is charged with the administration of the Act.
61 Tex.Jur.2d 546, 320. All liability provisions.either
set forth specifically by the Act or adopted by the Act
from the general Workmen's Compensation provisions are
applicable to the county and it is charged with admlnis-
trationof those liability provisions.
The term "self-insuring" as applied to
counties refers to a county which has adopted
Article 83ogc and chooses to carry Its own
risk of liability under the Act rather than
purchase coverage of that risk from a private
Insurance company.
~Countieswhich do not adopt the Act are
not deprived of common-flawdefenses, and their
liability Is not affected.
~Theauthorization by the Act for a county
to set aside up to 5% of the annual employee
payroll Is a financing provision and has nothing
to do with .llablllty.
Yours.very truly,
WAGGORER CARR
Attorney General of Texas
g : r-2..,~Z<,,
Gordon Houser
Assistant Attorney General
GH:sck
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. .
Hon. Gene Russell, page 4 (C-744)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. 0. Shultz
Wade Anderson
Malcolm Quick
Paul Phy
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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