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 selfInsuring 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 Leglslature 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 selfinsuring or that it purcha~se workmen's 

compensation insurance. . . . 

"(1) Does the Act re.fer to 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 

stertus of 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 payroll in any respect imply that its statutory llabllity 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 adopted 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 applicable," 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 provides 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 adoption of the Act is voted by a county, then the statutory 

provisions shal~l be 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 admlnistrationof 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. 

~Counties which do not adopt the Act are 

not deprived of common-flaw defenses, and their 

liability Is not affected. 

~The authorization 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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