Untitled Texas Attorney General Opinion

5
i
The Attorney General of Texas
Mar91 10, 1986
JIM MAlTOX
Attorney General
Suprema GxWt BUlldlnQ Honorable Rane A. Gucrra Opinion No. Ju-447
P. 0.80x 1254S Criminal District Attorney
~ustm. TX 7871% 2548 Ridalgo County Courthouse Re: Whether a county may pay em-
51214752501 Edinburg , Texas 78539 ployecs injured on the job the differ-
Talea 9101074-1357
1aiecopiar 512l4750286
ence between their regular salary and
their workers’ compensation benefits
714 Jackson. Suit0 700 Dear Mr. Guerra:
Oaltaa, TX. 75202.4508
214/742+.944
You question the constitutionality of a current practice in
Ridalgo County o:I paying injured county employees the difference
4S24 Alberta Ave.. Suite 180 between their workers’ compensation benefits and their salary. You
El Paso. TX. 799052793 also ask whether an injured employee ma9 receive accrued sick leave
915/53%34S4 and vacation 1eaT’c’ in addition to workers’ compensation benefits.
Your coucern focuses on provisions of the Texas Constitution which
1Wl Texas. suite 700 prohibit grants OX loans of public money. -See Tex. Const. art. III,
“ouston. TX. 77002.3111 #551. 52, 53.
713l223.5888
Counties havlr. only those pavers that are granted expressly or
that must be implted from the authority granted or duties imposed by
808 Broadway, Suite 312
the Texas Constltrltion or statutes. Canales v. Laughlin, 214 S.W.2d
Lubbock. TX. 79401-3479
SOW747.5235 451. 453 (Tex. 191;8). Accordingly, your questions require considera-
tion of grants of authority as veil as constitutional limits on its
exercise. As wil:. be shown, the present constitutional authority for
4309 N. Tenth. Suite 6
counties to provide workers’ compensation benefits was adopted beceuse
McAllan. TX. 78501-%S5
5121882.4547 of the constitutic~moal limits about which you ask. A brief background
of these provlsiDns must precede our response to your specific
questions.
200 Ma,” Plea, Suite 400
sari Antonlo. TX. 7S2052797
Article III, section 52 of the Texas Constitution prchibjts
51212254191
counties from makjng grants or loans of money or of any other thing of
value. See also Ift?x. Const. art. III, 551. Because a county is not
An Equal OpportunitYl inherently liable ,for injuries to its employees, section 52 at one
Afllrmatlve Action Employer time prevented cslntles from providing any workers’ compensation
benefits for its employees. See Attorney General Opinion O-5315
(1943). Section 60 was added to article III in 1948 in part to
overcome the effect of section 52.
Article ITI, section 6C of the Texas Constitution provides:
WORKPEN’sCOMPENSATIO??
INSQTMCE FOR EHPLOYEES
OF COUNTIESAND OTHERPOLITICAL.SUBDIVISIONS. The
p. 2028
Eonorable Rene A. Guerra - l?rrge 2 (JM-447)
Legislature shell have the power to pass such laws
as may be necesmry to enable all counties and
other political eubdivisiona of this State to pro-
vide Workman’s Compensation Insurance, includiog
the right to pmride its own insurance risk, for
all amployees o!i the county or political sub-
division as in its judgment is necessary or re-
quired; end the Legislature shell provide suitable
laws for the admtinistration of such insurance in
the counties or pollticel subdivisions of this
State and for tt,e payment of the costs, charges
sod premiums on t,uch policies of insurance and the
benefits to be pr,id thereunder.
In 1973 the legislature made workers’ compensation mandatory for
all political subdivisions. See Acts 1973, 63rd Leg., ch. 88. 517, at
198 (codiffed as V.T.C.S. &.309h); Attorney General Optnion E-338
(1974). Section 2(e) of article 8309h provides:
All political subdlvisioos of this state shall
become, either !self-insurers, provide insurance
under workmao’s compensation insuraoce contracts
or policies, or anter into interlocal agreements
with other political subdivisions providing for
self-insurance, clxtending workmen’s compensation
benefits to their smployees.
Ridalgo County presently grwldes workers’ compensation insurance for
its amployees through the Texas Association of Counties Workers’
Compensation Self-Insurance Fund.
Workers’ compeosatioa benefits are Intended to retmburse an
employee for loss of earning capacity caused by work-related injuries,
Bullerd v. Universal Undengriters Insurance Company, 609 S.W.2d 621,
626 (Ter. Civ. App. - AmarZllo 1980, no writ), not for loss of salary.
See El Paso County v. JeE!C!. 699 S.W.2d 375. 377 (Tex. App. - El
Phso 1985, 00 writ). Article 8309h and the general workers’ com-
pensation statutes that it makes applicable to counties, see 13,
specify formulas for deta!rmining the amount of compensationdue an
injured employee. These formulas are based upon the nature and
duration of the l mployee’c, injury and upon the employee’s salary. The
workers’ compensation stat,utes applicable to counties do cot authorize
counties to pay, at thefr discretion. additional compensation for loss
of earning capacity eausecl by a vork-related injury. Because counties
have only expressly grsnctrd or neccsserlly implied powrrs, we must
determine vhrther any other statutes authorize the payment of the
difference between an aq:loyee’s worker’s compensation benefits and
salary.
p. 2029
. .
Aouorable Rene A. Cucrrr - :Pcgc 3 (a-447)
Article 3912k, section 1, V.T.C.S., authorizes the conmissioners
court of each county to
fix the amour& of compensation, office expense,
travel expense, and all other lllovances for
county and prec:inct officials end employees who
are paid wholly from county funds. . . .
As vi11 be shown, additional workers' compensation benefits could be
viewed not as workers' cor:pensatlon benefits per se, but as an element
of an employees pre-establlshcd, regular coqansation. E 1 though this
provision authorizes the county to "fix the aunt of compensation,"
it does not authorize p;byments which are prohibited by statute or
which amount to gifts or S.rants of public money in violation of con-
stitutlonal prohibitions.
Authorities which coosidar sitilar types of payments distinguish
between an ex post facto decision to award extra brnefits and a
prospective decision to mdre certain extra benefits a standard part of
compensation. See, e.g. :, City of Corpus Chr3cit.i v. Herschbarh, 536
S.W.Zd 653 (Tex. Clv. App. - Corpus Christi 1976. vrit ref'd n.r.e.);
Attorney General Opinion E-51 (1973). Your request l~etter reveals
that Hidalgo County has followed an informal practice of granting
extra compensation ss jndividusl injuries occur and that it now
proposes to make this extra compmsation part of a standard policy.
As will be shown in the discussion to follov, the Texas Constitution
prohibits a retroactive award of the differrnce betveen an injured
county employee's workers compensation benefits and his regular
salary.
Attorney General 0p:inion E-51 dealt with the effect of sections
51, 52, acd 53 of article IT1 on retroactive payments by tbr county cf
certain benefits to the beneficiaries of s deceased county anplopee.
The opinion determined ttst because the commissioners court lacked the
constitutional or statutory authority to provide retroactively for
death banoflts. the actic'n constituted an unconstitutional grant or
gift of public money. ‘Ihe issue in Attorney General Opinion E-51 is
analogous to the instant one.
Although Attorney General Opinion B-51 did not rely explicitly
upon artfcle III, sect3on 53, ve believe that section 53 is par-
ticularly relevant to the case at haod with regard to retroactive
awards of the benefits :;n question. Article III, section 53 of the
Texas Constitution provides:
COUNTYOR MUNICIPALAUTHORITIES; EXTRA C@MPEN-
SATION; uNAuTalx.IzED CLAIMS. The Legislature
shall have no power to grant. or to authorize any
county or municipal authority to grant. any extra
compensation. fee or allowarxe to a public
p. 2030
Ronoreble Rene A. Guerre - Page 4 (JM-447)
officer, agent, servant or coatrector, after
service has been rendered, or a contract has been
entered into, ml performed in whole or in part;
nor pay, uor aUth~DTiZe the payment of, any claim
created age&et my county or semicipality of the
State, under my agraenent or contract, made
vithout suthoritl, of lsv.
Consequently, we believe that retroactive payments by the county of
additional benefits, vbich are measured by the difference between an
injured employee’s workers’ compensation benefits under article 83C9b
and the employee’s salary, are prohibited by the Texas Constitution.
You indicate. however, that the situation in Aidalgo County
requires consideration of both retroactive and prospective payments of
the difference between ao employee’ s workers’ compensation benefits
and regular salary. The court in City of Corpus Christ1 v. Ferschbach
suggested that the receipt of “extra” workers’ compensation benefitrr,
which are authorized by s’tatute, might be authorized as part of the
employee’s pre-established, regular compensation. 536 S.W.2d st 657;
see also El Paso County ‘1 Jeffers, 699 S.W.2d 375 (Tex. App. - El
Paso 1985, DO writ); Actcrney General Opinion g-860 (1976). There-
fore, the payments woulti not constitute “extra compensation” in
violation of article III. rrectioo 53 of the Texas Constitution. 699
S.W.2d st 377. Ntverthelc:ss, the court suggested, in dicta, that a
1975 amendment, which requires offset for certain benefits, to article
8309h might prevent suck. payments of extra workers’ compensation
benefits after 1975. -Id.
The legislature amendted section 5 of article 8309h in 1975 to
provide for offset. See A,cts 1975. 64th Leg., ch. 404, Il. at 1041.
Section 5 of the statu=currently provides, in part:
(a) It is tl,e purpose of this article that the
compensation herlein provided for shall be paid
from veek to we&k sod as it sccrues and directly
to the persoo entitled thereto, unless the
liability is redeemed as in such cases provided
elsewhere herein. Provided further, however, that
any and all sums for incapscity received in accor-
dance vith Chap& 325, Acts of the 50th Legisla-
ture, 1947, as-smended (Article 1269m, Vernon’8
Texas Civil Stacttes), and any other statutes now
in force and ef’iect that provide for payment for
incapacity to-- r,ork because of injury on the job
that is also co&ed by this Act are hereby offset
ss sgainst the Ikefits provided under this Act to
the extent apr;iicable. Provided that wheo an
employee’s wag@? is offset as prescribed above,
both the employer and the employee shall pay Into
p. 2031
. ,
Honorable Rene A. Guerrs - 'Page 5 (Jn-447)
the pension fuod cm the mount of money by vhich
his wage Y(LE offset end provided further that
under no circumstances shell ao employee's pension
benefit be reduccid, 8s a result of his injuries or
any compensation xeceived under the provision of
this Act, unless isuch reduction is s result of a
pension revision ,paesed by mjority vote of the
affected members Iof a pension system. (Emphasis
added).
V.T.C.S. art. 8309h. S5(a).
The phrase in sectiot ?(a) vhicb causes concero is the one which
requires offset of sums received for izcapaciry in acccr&nce with
“any other statutes now in force and effect that provide for payment
for incapacity to vork because of injury on the job" vheo that injury
is also covered by artlclr 83C9h. Article 3912k wss "in force and
effect" at the t1r.e section S(a) was amended in 1975. See Acts 1971,
62nd Leg., ch. 622, at 20119. Thus. we must deeern&zhethtr the
payment of additional benr,f its, which sre measured by the difference
between an iojurad wloyr,as workers' coqensation benefits and the
employee's salary, pursuant to article 3912): falls b*thin "any other
statutes" within the waoinS of article 8X9t. section 5.
The bill analysis to the anendaent requiring offset states the
background and purpose of ,:he amendment as foliovs:
Present law 1:; not clear that workmen's coven-
sation beoefits are paid lo lieu of, and not in
addition to, other statutory paymeots made for
vcrk-related ioc apscity .
This bill vou1.d insure that payments ,pde for
work-related locapacity under other itatutory
plans sre credited agaiost amounts due btiuder the
Workmen's Cospenmtion Act.
Section 1 ammds Arttcle 83C9b to ensure that
vorkmen's co~ensation payneots are lessened by
amounts paid under other statutory plans.
Bill Analysis to S.B. ND. 828. prepared for Senate Commirtce on
Economic Development, filr:d. in Eill Pile to S.B. No. 828, Legislative
Reference Library. Psynle.nts of additional benefits, which are
measured by the difference between workers' coqensation benefits and
salary, that are xnade parsuant to article 3912k as part of sn
employee's pre-establishei;, regular salary are arguably payTents aade
for work-related incapacity under other statutory plans.
p. 2032
Ronorable Rene A. Guerra - :?trge 6 (Jn-447)
In ~1 Paso Couoty v. Jeffers. e. however, the court suggested
that section 5 of article 8309hwas intended to offset only existing
statutes which speciflcaL:Ly provided for worker's coinpensstioi
beneflte. The court atsted:
.
[Alo 8309h offsef: aupliee to funds for incapacity
deceived pureuanf to-the firemen's and policexen'b
civil service prEvisiona 'and soy other statutes
now in force and-effect.' We have beau cited to
no offset etatut; applicable to deputy sheriffs.
The reauirement t&t deoutv sheriffs receive their
*maxi&w salary' while incapacitated from Injuries
received in the course of their duties is provided
for by the Taxas Coostltucioo. It is fundamental
that the Constitution is the paramount law of the
state and csnnot 'be altered by legislstive smend-
meats. [citation omitted]. On its face, the
statute cited 12 Appellant does not apply to
deputy sheriffs, and if It did it would be in con-
flict with=Texas Coostitutioo. The Appellant
was in error in ~:lsiming an offset under srticle
8309h. (Emphasis added).
699 S.W.2d st 377. In oth'er vords the court suggests that section 5
of article 8309h was intended to require ooly offset of specific
workers' compensation sts1:utes such as article 1269m. Article 3912k.
in contrast. provides fsor the general compensation of county
employees.
Workers' compensation benefits reimburse for loss cf earning
capacity, not for loss of isalary. 699 S.W.2d at 377. Payments uoder
article 3912k can be dis,tingulshed ss reimbursement for loss of
salary. Consequently se&too 5 of article 8309h does not prevent the
county frompaying the dif,ference between injured employees' worker's
compensation'" benefits acd their regular salaries as part of the
employees' pra-established,, overall compensation under article 3912k.
You also ask whether, sn injured employee may receive sick leave
and vacation leave in .~dditioo to vorkers' compensation benefits
without violating article 6309h or sections 51. 52, and 53 of article
III of the Texas Constitution. As indicated, Attorney General Opinion
H-51 determined that ret::oactive payments of death benefirs were not
authorized by the Texas C,onstitutioo or ststutes and that they there-
fore constituted unconstitutional grants or gifts of public funds.
The opinion distinguishtd unused vacation time aod other forms of
accrued compensation. Because these types of compensation were
authorized aod had alreod:y been earned, payment of such benefits to
survivors vas not deemed an unconstitutional grnnt. The same con-
siderations apply to payment for the unused sick leave and vacation
time that an injured county employee has already earned; therefore,
p. 2033
.
Honorable Rem A. Gucrro - Page 7 (JM-447)
such payments do not viola’to the Texas Corzstitution. Conaequenriy.
the county is not prohibp:trd from paying an injured county employee
accrued sick leave and vacation leave in addition to workers’
compensation benefits.
SIJMMARY
Hidalgo Cour.ty may not make retroactive
payments to lnjwed county employees of extra
workers’ compenwtion benefits measured by the
difference betwren their workers’ compensation.
benefit; under article 8309h. V.T.C.S., and their
salary. If the (county makes additloul workers’
compensation benefits a part of county employees’
pre-established, regular compensation under
article 3912k. the benefits need not be offset
against the benefits provided under article 8309h.
The county is not prohibited from paying an
injured employer: accrued sick leave and vacation
leave in add5 t ion to workers’ compensation
benefits.
Jkh
Very truly your
.
JIM NATTOX
Attorney General of Texas
JACK HIGBTOWRR
First Assistant Attorney Central
MARYKELLER
Executive Assistant Attorney General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Conunittl;a
Prepared by Jennifer Rigg:3
Assistant Attorrey General
p. 2034