Untitled Texas Attorney General Opinion

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Hon. J. P. Gibbs Opinion No. V-1033
Casualty Insurance Commissioner
Board of Insurance Commissioners Re: The applicability of the
Austin, Texas seven day waiting per-
iod provided by Section
6 of Article 8306, V.C.S.,
to workmen’s compensa-
tion insurance on county
Dear Sir: employees.
Your request for an opinion reads as follows:
“Controversy has arisen over H.B. 611, 51st Leg-
islature, 1949 (Article 8309-C) which provides for Work-
men’s Compensation Insurance for County Employees.
“The point at issue is whether H. B. 611 provides
for a waiting period of seven days before compensation
is payable or whether compensation is payable from the
first day of disability. The general Workmen’s Compen-
sation Act, in Article 8306, Section 6, provides that no
compensation shall be paid for an injury which does not
incapacitate the employee for a period of at least one
week. Compensation shall begin to accrue on the eighth
day after the injury.
“H. B. 611, Section 6, adopts certain sections of
Article 8306 and other articles, and provides that these
sections shall govern insofar as applicable under the
provisions of this law. At the head of the list of sections
from Article 8306 is listed ‘Section 5, as amended by
Acts, 1927, Fortieth Legislature, Page 84, Chapter 60.
Section 1 . . .’ There is an apparent error here, since
Hon. J. P. Gibbs, Page 2, V-1033.
Section 5 of Article 8306 was not amended by the Forti-
eth Legislature. Section 6, of Article 8306 was amend-
ed by the Acts of 1927, Fortieth Legislature, Page 84,
Chapter 60, Section 1, and no other section is amended
at that point.
“House Bill 611, as printed in the House, calls
for Section 6, of Article 8306 and the same bill in the
Senate also shows Section 6. This bill was ameridelT in the
Senate in some minor respects, but none of these
amendments recites any change in this part of what
was then Section 7, of H. B. 611. One of the amend-
ments eliminates Section 4, of the House Bill and di- ‘.
rects that the sections be renumbered. The sections
were renumbered and the Secretary of State has the
copy of the bill on which the changes were made. The
reference to Section 6, of Article 8306 evidently was
changed to read ‘Section z at this time.
“It is significant that the State Highway Depart-
ment Workmen’s Compensation Act (Article 6674-s).
the Agricultural and Mechanical College Compensation
Act (Article 8309-b) have the same section as the pre-
sent Section 6 of H.B. 611, and in each case it is Sec-
tion a, of Article 8306 which is included, not Section 5
of 8306, which relates to Exemplary Damages.
“The immediate question before the Board of In-
surance Commissioners arises because the Workmen’s
Compensation Insurance carriers contend that H. B. 611
does not provide for the usual seven day waiting period
and they have requested increased rates on County Em-
ployees Workmen’s Compensation Insurance to cover
the substantially greater amounts of compensation to be
paid if compensation begins to accrue with the first day
of incapacity due to injury. If H. B. 611 does embody the
same waiting period found in the other similar acts, no
increased rates are needed.
“Please advise us as to whether or not, in your
Hon. J. P. Gibbs, Page 3, V-1033.
opinion, the seven day waiting period provided in Arti-
cles 8306, 6674-c and 8309-b is also a part of H.B.
611 (Article 8309-c).”
We have likewise checked this bill (H.B. 611) in the of-
fice of the Secretary of State and find that as of the time when it
was originally passed by the House it read as follows:
“Unless otherwise provided herein, Section 6, as
amended by Acts, 1927, Fortieth Legislature, page 84,
Chapter 60, Section 1; 7; 7b; . . . .” (Emphasis ours
throughout remainder of opinion unless otherwise indi-
cated.)
We also find that the said Bill as signed by the Governor,
reads:
“Unless otherwise provided herein, Section 5, as
amended by Acts, 1927, Fortieth Legislature, page 84,
Chapter 60. Sections 1, 7, 7b. . . .I’
The committee amendments to this Bill, as you correctly
state in your letter, recite no change relative to the above quoted
provision. Thus we are squarely confronted with a difference in
wording, i.e., “Section 6” becoming “Section 5,” after passage
by the House and without apparent intent by the Legislature.
It is certainly significant that Article 6674-s, V.C.S.,
which provides workmen’s compensation insurance for Highway
Department employees, and Article 8309-b, V.C.S., providing
workmen’s compensation insurance for employees under Agri-
cultural and Mechanical College Directors, each contains the pro-
vision as found in the original version of House Bill 611, as fol-
lows :
“Unless otherwise provided herein, Section 6, as
amended by Acts 1927, 40th Legislature, page 84, Chap-
ter 60, Section 1, 7; 7b; . . .”
Section 5. Article 8306 (Acts 1917, p. 269) provides:
Hon. J. P. Gibbs, Page 4, V-1033.
“Sec. 5. Nothing in this law shall be taken or held
to prohibit the recovery of exemplary damages by the
surviving husband, wife, heirs of his or her body, or
such of them as there may be of any deceased employe’
whose death is occasioned by homicide from the wilful
act or omission or gross negligence of any person,
firm or corporation from the employer of such em-
ployd at the time of the injury causing the death of the
latter. In any suit so brought for exemplary damages
the trial shall be de nova, and no presumption shall
exist that any award, ruling or finding of the Indus-
trial Accident Board was correct. In any such suit,
such award, ruling or finding shall neither be pleaded
nor offered in evidence. Id.”
The above provides for exemplary damages recoverable
by enumerated survivors. It is a fundamental rule of law that the
State of Texas is not liable for the torts of its officers and agents.
Stateet’ al v. Morgan, 140 Tex. 620, 170 S.W.2d 652 (1943); Texas
Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949).
State v. Elliott, 212 S.W. 695 (Tex. Civ. App. 1919, error ref.);
Matkin v. State, 123 S.W.Zd 953 (Tex. Civ. App. 1939, error dism.
judgm. car.); Welch v. State, 148 S.W.2d 876 (Tex. Civ. App. 1941,
error.ref.).. The same rule has been applied to counties. 11
Tex. Jur. 627, Sec. 92; Bryan v. Liberty County, 299 S.W. 303
(Tex. Civ. App. 1927); Braissaird v. Webb County, 128 S.W.Zd 475
(Tex. Civ. App. 1939). Section 5 of Article 8306 does not give any-
one a cause of action but merely states that recovery of exemplary
damages is not prohibited under the Workmen’s Compensation Act.
Since an employee has no cause of action against the State in the
first instance, he could not recover exemplary damages for the
wilful or malicious acts or gross negligence of other State em-
ployees. The inclusion of Section 5 of Article 8306 would be a
meaningless act on the part of the Legislature unless its impli-
cations are far beyond the evident intent merely to establish a
conventional workmen’s compensation system for county employees.
Section 6, Article 8306.(as amended by Acts 40th Leg.,
1927, ch. 60, p. 84, Sec. 1)provides:
“No compensation shall be paid under this law for
Hon. J. P. Gibbs, Page 5, V-1033.
an injury which does not incapacitate the employe’ for
a period of at least one week from earning full wages,
but if incapacity extends beyond one week compensation
shall begin to accrue on the eighth day after the injury.
The medical aid, hospital services, and medicines, as
provided for in Section 7 hereof, shall be supplied as
and when needed and according to the terms and pro-
visions of said Section 7. If incapacity does not follow
at once after the infliction of the injury or within eight
days thereof but does result subsequently, compensa-
tion shall begin to accrue with the eighth day after the
day incapacity commenced. In any event the employe’
shall be entitled to the medical aid, hospital service
and medicines provided in this law. Provided further,
that if such incapacity continues for four (4) weeks or
longer, compensation shall be computed from the in-
ception date of such incapacity.”
Conclusive indication of the legislative intent to adopt
Section 6 instead of Section 5 is that the Bill, from its inception un-
til signed by the Governor, makes the following reference:
,I . . . . as amended by Acts, 1927, Fortieth Leg-
islature, page 84, Chapter 60, Sections 1, _~. . .I’
As seen above, this reference is descriptive of Section 6. Clearly,
such reference could not apply to Section 5 of Article 8306 because
Section 5 was not in fact so amended. If Section 5 of Article 8306
is included, that reference is meaningless. On the other hand, it
appears obvious that the Legislature intended to incorporate Section
6 of Article 8306 as part of Article 8309c, just as it had done on
two prior occasions, i.e., Article 6674s, the State Highway Depart-
ment Workmen’s Compensation Act, and Article 8309b, the A 8 M
College Workmen’s Compensation Act.
Obvious mistakes in the language of an Act should be con-
strued by the court to make sense where otherwise the Act would
do a thing useless and meaningless. Chambers v. State, 25 Tex.
307 (1860). The Supreme Court of Texas in Wood v. State, 133
Tex. 110, 126 S.W.2d 4 (1939), held that the words, “is absent”
Hon. J. P. Gibbs, Page 6, V-1033.
as used in Article 2956, V.C.S., should read “expects to be ab-
sent,” stating that “statutes should be construed so as to carry
out legislative intent, and when such intent is ascertained it should
be given effect even though literal meaning of words used in statute
is not followed.”
In Loving County v. Reeves County, 126 S.W.2d 87 (Tex.
Civ. App. 1939, error ref.) the court made a correction in an in-
correct statutory reference: “The reference in Article 7238 to
Article 7235 is apparently an error in revision or codification,
as suggested by defendant, and the reference, we think should be
to Article 7228, to give the intended meaning.” In 39 Tex. Jur.
186, we find the following language: “an incorrect reference in
an amendatory statute, to an act or section amended may be dis-
regarded where the clear intent of the Legislature was to amend
another act or section,” citing Cernoch v. Colorado County, 48 S.
W. 2d 470 (Tex. Civ. App. 1932). wherein the court construed the
reference “6894 and 6895” of Title 119, Revised Statutes of 1911,
to read “6984 and 6985,” ,“, .
Again, in Camden Fire Insurance Association v. Harold
E. Clayton & Co., 117 Tex. 414. 6 S.W.2d 1029 (1928) the Supreme
Court, speaking through Chief Justice Cureton, construed the lang-
uage “shall not be invalidated by any act of neglect of the mortga-
gee or owner ” as found in Article 4931 to read “shall not be in-
validated by any act 2 neglect of the mortgagor or owner.” The
court reasoned that the terms of the statute involved are so plain
that there can be no doubt whatever that its purpose was to pro-
tect the holder of the mortgage, to whom the policy was made paya-
ble under the loss payable clause, from ‘any act or neglect of the
mortgagor.’ ”
Therefore, since the Legislature specifically described
Section 6 by the quoted reference, and on two prior occasions
similar Acts of the Legislature included Section 6, and not Section
5, and nothing in the Act indicated an intention to impose exem-
plary damages on the State, and because statutes should be con-
strued in a manner to carry out the legislative intent, it is our opin-
ion that the provisions of Section 6 of Article 8306 were enacted
into Article 8309~.
Hon. .J. P. Gibbs, Page 7, V-1033.
SUMMARY
The seven day waiting period provided for in Sec-
tion 6 of Article 8306, V. C. S., is also a part of Article
8309c, V. C. S., setting up a workmen’s compensation
system for county employees.
Yours very truly,
PRICE DANIEL
APPROVED: Attorney General
Ned McDaniel
State Affairs Division
Charles D. Mathews
Executive Assistant Assistant
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