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, in S.B. No. 364. 

Dear Mr. Bell: 

By reason of the enactment of Senate Bill No. 364 by the 

62nd Legislature, Regular Session, 1971, (amending Art. 8309c, 

Vernon's Civil Statutes), you have requested our opinion concerning the following question: 

"If counties do not carry workmen's compensation, either through a private 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, in part, as follows: 

"Section 3. The county is hereby authorized 

to either be self-insuring or that it purchase workmen's compensation insurance for its employees from 

any company authorized to do business in Texas, and 

is charged with the administration of this Act. It 

is expressly understood that the provision authorizing 

counties to provide such compensation or insurance is 

permissive and not mandatory; provided, however, that 

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Honorable David P. Bell, page 2 (M-929) 

in any county of this State, the Commissioners Court on 

its own motion may call an election for the purpose of 

determining whether the county shall adopt the 

provisions of this Act. If a majority of the 

qualified voters at such an election votes for the 

adoption of the provisions of this Act, the provisions 

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 it purchase workmen's compensation insurance for its employees from any company authorized to do business 

in Texas, and is charged with the administration of 

this Act: provided, however, that if such county 

fails to provide either self-insurance or insurance 

under a policy of insurance, the county shall be 

subject to Sections 1 and 4 of Article 8306, Revised 

Civil Statutes of Texas, 1925, as amended or as they 

may hereafter be amended." 

Section 1 of Article 8306 referred to in the above quotation provides that the common law defenses referred to in your 

question are not defenses in a suit by an employee against an 

employer who comes within the terms of the Workmen'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 to provide 

county employees with workmen's compensation insurance is permissive, a county will not lose its common law defenses if the 

amended law is not adopted by the county. However, under the 

express provisions of the amended statute, if the qualified 

voters adopt the provisions of the Act pursuant to an election 

called by the Commissioners Court, it becomes mandatory for the 

county to be either self-insuring or to purchase workmen's 

compensation insurance: and after such election, if the county 

fails to provide either self insurance or insurance from an 

insurance company, such county will be subject to the provisions 

of Sections 1 and 4 of Article 8306, Revised Civil Statutes of 

Texas, and therefore will lose its common law defenses of 

contributory negligence, fellow servant doctrine and assumed risk. 

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Honorable David P. Bell, page 3 W-929) 

SUMMARY 

If at an election a county adopts the 

provisions of S.B. No. 364, 62nd Leg., R.S. 

1971, it is mandatory that the county be 

either self-insuring or that it purchase 

workmen's compensation insurance, and if it 

fails to do either, it will lose its common 

law defenses of contributory negligence, 

fellow servant doctrine and assumed risk. 

Very/t?uly yours, 

Attornk;y General of Texas 

Prepared by Jack Sparks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Banks 

Robert Lemens 

Ivan Williams 

Jack Goodman 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

First Assistant 

NOLA WHITE 

First Assistant 

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