Texas Employment Commission v. Oliver , 1985 Tex. App. LEXIS 7661 ( 1985 )

DUNN, Justice,

dissenting.

I respectfully dissent. Appellee has received unemployment compensation and has collected wages for the same period of time. The Texas Unemployment Compensation Act does not contemplate that such overpayment may not be recouped.

Tex.Rev.Civ.Stat.Ann. art. 5221b-14(d) (Vernon 1971) allows the Texas Employment Commission to recover amounts overpaid to anyone making a misrepresentation or nondisclosure of a material fact, even if the person does not know that his statement amounts to a misrepresentation or nondisclosure. Appellee in the case at bar, while receiving unemployment compensation, pursued his claim against his employer for wrongful discharge and loss of wages. True, he could not have anticipated the outcome of his cause of action, but his claim against his employer was obviously not frivolous since he ultimately prevailed. The majority overlooks that portion of article 5221b-14(d) that requires repayment of monies paid out as unemployment compensation, irrespective of whether such nondisclosure or misrepresentation was known or unknown. If the employee later receives wages for the period of time for which he is claiming unemployment, whether or not he knows at the time of his unemployment that his wages would be actually refunded to him, then the amount paid out, because of the claimed unemployment under the terms of the statute, must be refunded to the Texas Employment Commission. Contrary to the opinion of the majority, the Act is not calling for clairvoyance on the part of the appellee, nor is the requirement under this condition unfair. Any other interpretation would provide a “windfall” for the appellee. The legislature clearly intended to cover situations of this type.

Texas Employment Commission v. Busby, 457 S.W.2d 170 (Tex.Civ.App.—Amarillo 1970, writ ref’d n.r.e.), correctly stated that the employment relationship between a wrongfully discharged employee and his employer is not interrupted by the wrongful discharge, but continues as a legal fact throughout the term of the “unemployment.” This fact is only revealed when the arbitration board makes its decision, but it is a continuing legal fact throughout the period of supposed “unemployment,” regardless of the inability of any party to know or disclose that fact.

Further, the provision in the Act that the misrepresentation need not be “known or fraudulent” is designed to apply to an employee (or employer) who makes an innocent misrepresentation to the Texas Employment Commission of the employee’s status. Mollinedo v. Texas Employment Commission, 662 S.W.2d 732 (Tex.App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.). The outcome of the employee’s suit for reinstatement and wages was unknown to him at the time he was without work. This situation is provided for in the Act by the application of that portion of the Act specifying “whether known or unknown.”

The majority cites Martinez v. Texas Employment Commission, 570 S.W.2d 28 (Tex.Civ.App.—Corpus Christi 1978, no writ) in support of their argument. The facts, which both parties stipulated to in Martinez, were that the Texas Employment Commission made a mistake. The Court in Martinez determined that recovery under the Act provided that nondisclosure or misrepresentation, known or unknown, by the employee, i.e., “by him ” or “by another,” did not include a mistake made by Texas Employment Commission. Therefore, the Court denied the Texas Employment Commission recovery in this case, reasoning that “by another” did not include the Texas Employment Commission.

In the case at bar, the appellee pursued his claim against his employer, collected unemployment insurance, and also received his wages for the same period of time. There was no mistake on the part of the Texas Employment Commission.

I would hold that the trial court erred in granting the appellee’s motion for summary judgment and in failing to grant the Texas Employment Commission’s motion for summary judgment. I would reverse the trial court’s judgment and render judgment for Texas Employment Commission.