Honorable David P. Bell Opinion No. M-929

Executive Director Texas Industrial Accident Board Re: The liability of a county State Insurance Building to its employees for inAustin, Texas 78701 juries under the provisions of Article 8309c, Vernon's Civil Statutes, as amended by the 62nd Legislature, R-S., 1971, inS.B. No. 364. Dear Mr. Bell:
By reason of the enactment of Senate Bill No. 364by the 62nd Legislature, Regular Session, 1971, (amendingArt. 8309c, Vernon's Civil Statutes), you have requested our opinion concerning the following question:

"Ifcounties do not carryworkmen's compensation, either through aprivate insurance company or by being self-insured, do they lose their common law defenses of contributory negligence, fellow servant doctrine and assumed risk?"

Senate Bill No. 364 provides, inpart, as follows:
"Section 3. The county ishereby authorized to either be self-insuring or that itpurchase workmen's compensation insurance for its employees from any company authorized todobusiness inTexas, and is charged with the administration of this Act. It is expressly understood that theprovision authorizing counties toprovide such compensation or insurance is permissive and not mandatory; provided, however, that

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in any county of this State, the Commissioners Court on its own motion may call an election for thepurpose of determining whether the county shall adopt the provisions of thisAct. If a majority of the qualified voters at such an election votes for the adoption of theprovisions of this Act, theprovisions of this Act shall thereafter be applicable to such county, and in such event it shall be mandatory that such county be either self-insuring or that itpurchase workmen's compensation insurance for its employees from any company authorized to dobusiness in Texas, and is charged with the administration of this Act: provided, however, that if such county fails toprovide either self-insurance or insurance under apolicy of insurance, the county shallbe subject to Sections 1and 4 ofArticle 8306,Revised Civil Statutes of Texas, 1925, as amended oras they may hereafter be amended."
Section 1ofArticle 8306 referred to in theabove quotation provides that the common lawdefenses referred to inyour question are not defenses ina suit by an employee against an employer who comes within the terms of theWorkmen's Compensation Act. Counties are not now within the coverage of the Workmen's Compensation laws unless they have heretofore voluntarily adopted the enabling statutes enacted by the Legislature concerning workmen's compensation benefits for counties.
Since the authority under Senate Bill No. 364 toprovide county employees with workmen's compensation insurance ispermissive, a county will not lose its common lawdefenses if the amended law is not adopted by the county. However, under the express provisions of the amended statute, if thequalified voters adopt the provisions of theAct pursuant toan election called by the Commissioners Court, itbecomes mandatory for the county tobe either self-insuring or topurchase workmen's compensation insurance: and after such election, if the county fails toprovide either self insurance or insurance from an insurance company, such county will be subject totheprovisions of Sections 1and 4 ofArticle 8306, Revised Civil Statutes of Texas, and therefore will lose its common lawdefenses of contributory negligence, fellow servant doctrine and assumed risk.

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SUMMARY

If at an election a county adopts the provisions of S.B. No. 364, 62nd Leg., R.S. 1971, it ismandatory that the county be either self-insuring or that itpurchase workmen's compensation insurance, and if it fails to do either, itwill lose its common lawdefenses of contributory negligence, fellow servant doctrine and assumed risk.
Very/t?uly yours,

Attornk;yGeneral of Texas Prepared by Jack Sparks Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman John Banks Robert Lemens IvanWilliams Jack Goodman

MEADE F.GRIFFIN Staff LegalAssistant

ALFRED WALKER First Assistant

NOLA WHITE First Assistant

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