June5,1972

Mr. David P. Bell Opinion No.M-1142 Executive Director Industrial Accident Board Re: Whether students particiState Finance Building pating ina Federal College Austin, Texas 78711 Work-Study Program,at a Texas college or university may be deemed to be employees under the Texas Workmen's Dear Mr. Bell: Compensation Act.

We have your request for an opinion regarding the captioned matter which specifically asks the following question:

"Are students participating ina Federal College Work-Study Program at a Texas college or university considered tobe employees under the Texas Workmen's Compensation Act so as to be entitled to the benefits of that Act?" The Federal College Work-Study Program, 42U.S.C. 2751 et seq., provides federal funds to eligible educational institutions employing needy students forpart-time work as classroom assistants, laboratory and library assistants, clerks, maintenance men, etc. The participating students are restricted to working notmore than an average of fifteen hours per week and they do not receive pay checks from the institution. Rather, their earnings are credited to their accounts with the institution for the cost of their tuition, room and board, books, etc. Up to 80percent of the cost for such program isprovided for by federal funds.

Except insofar as theymay be classified as "workmen" at particular institutions as hereinafter discussed, these students are not covered by theWorkmen's Compensation Act and are not entitled tobenefits thereunder.

While employees ofprivate employers are now governed by the general workmen's compensation statute, Article 8306, et seq.,Vernon's Civil Statutes, this general law isnot applicable to state-supported colleges or universities, who are governed

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Mr. David P. Bell, page 2 (M-1142)

by special lawspertaining only to certain colleges anduniversities, except insofar asparticular parts of the general law have been expressly adopted and incorporated in the special acts. Matthews v. University of Texas, 295 S.W.Zd 270 (Tex.Civ. App. 1956, nowrit).

In 1936, the Constitution of Texas authorized the Legislature toprovide forworkmen's compensation insurance for State employees and further toprovide for thepayment of all costs, charges and premiums on suchpolicies of insurance.

Section 59ofArticle III of the Constitution of Texas provides: "TheLegislature shall have power topass such laws asmay be necessary toprovide for Workmen's Compensation Insurance for such State employees, as in its judgment isnecessary or required; and toprovide for the payment of all costs, charges, and premiums on suchpolicies of insurance: providing the State shall never be required topurchase insurance forany employee."
Pursuant to the above quoted constitutional amendment, the Legislature has authorized workmen's compensation coverage of employees at only three Texas colleges and/or universities; namely, theAgricultural andMechanical College of Texas (Art. 8309b, V.C.S.), The University of Texas (Art. 830962,V.C.S.) and Texas Technological College (Art.8309f,V.C.S.). The above three statutes cover various campuses and branches of the respective institutions inaddition to themain college or university asprovided in each particular Act.

No other state-supported colleges and universities being statutorily authorized toprovide workmen's compensation insurance for its employees,the scope of this opinion isnecessarily limited to consideration ofyour question only as itmay pertain to the three above mentioned institutions.

Thedefinition of a "workman" is identical in theActs covering TheUniversity of Texas and Texas Tech. Art. 8309d, Sec. 2, Subd. 2, andArt. 8309f, Sec. 2, Subd.2, V.C.S. We quote the definition out of theAct for Texas Tech as follows:

1'2
. 'Workman' shallmean every person in the service of Texas Technological College under

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any appointment or expressed contract of hire, oral orwritten, whose name appears upon the pay roll of Texas Technological College except, "(a)Administrative staff including officials of administration; "(b)Teaching staff who are not required by their teaching or research duties tohandle orwork in close proximity to dangerous chemicals, materials, machinery or equipment; "(c)Research staff who are not required to handle or work in close proximity to dangerous chemicals, materials, machinery or equipment; "(d)Clerical and office employees not required by their duties to regularly travel or work in adangerous area; "(e) Supervisory staff whose duties are predominantly administrative and clerical and who do not participate inmanual labor, orwork in adangerous area: "(f) Persons paid on apiecework basis, or any basis other than by the hour, day, week, month, or year. "Provided further, that noperson shall be classified as a 'workman' nor be eligible to any compensation benefits under the terms andprovisions of thisAct until he shall have submitted himself first to aphysical examination by a regularly licensed physician or surgeon designated by Texas Technological College tomake such examination and thereafter been certified by Texas Technological College tobeplaced on thepay roll of Texas Technological College." The definition for aworkman set out in theAct for TexasA&M, Article 8309b, Sec. 2, Subdivision 2,provides:

"2
. 'Workman' shallmean every person employed in the service of any institution as defined above, whose name appears on thepayroll thereof, except clerical and office employees

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not required by their duties to travel or work away from their offices. No person in the service of such institution who ispaid on a piece-work basis, or on any basis other than by thehour, day, week, month, or year shall be considered an employee nor shall be entitled to compensation under the terms and provisions of thisAct." The relation of employer and employee exists between the hiring institution and the student working part-time under its

**SC Ar**  fTex.Civ.Ar direction and control. Wise v. Texas Employment Insurance Asciation, 402 S.W.Zd 228 (Tex.Civ.App. 1966, error ref. n.r.e.). Idsee Goodnight v. Zurich Insurance Company, 416 S.W.2d 626

>P*1967, error ref. n.r.e.); and Sanchez v. Leggett, 463 S.W.Zd 517 (Tex.Civ.App. 1971).

Themanner of remuneration to the student, i.e. as acredit tohis account at the school rather than his receipt of apay check, is immaterial. American Fire and Casualty Co.v. Baker, 431 S.W.2d 956 (Tex.Civ.App. 1961, error ref. n.r.e.). And seeArticle 8301, Sec. l(4), where thedefinition ofwages includes the "market value of board, lodging, laundry, fuel and other advantage which can be estimated inmoney which the employee receives from the employer aspart of his remuneration."

Likewise, the fact that the institution receives funds from the federal government tohelp offset the costs for such program would have no bearing in the determination of coverage.

We note from thedefinitions of "workman" in the statutes covering the three institutions herein discussed that, in general, those persons engaged in so-called "office jobs" are not covered, while others are.

Therefore, if apart-time student working at TheUniversity of Texas, TexasA&M or Texas Tech under theprovisions of the Federal College Work-Study Program is engaged in the type of activity that would classify him as a "workman" as that term is defined by theworkmen's compensation statutes applicable to each institution, the student would be entitled to the benefits ofworkmen's compensation provided for by that institution. If theworking duties of such student are excluded by statutory definition, there would be no coverage.

This office not having been furnished a specific fact situation regarding theparticular working activities involved,
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we are unable tobemore explicit in this opinion.
SUMMARY If apart-time student working at The University of Texas, TexasA&M or Texas Tech under the provisions of theFederal College Work-Study Program is engaged in the type of activity that would classify him as a "workman" as that term isdefined by theworkmen's compensation statutes applicable to each institution, such student would be entitled to thebenefits ofworkmen's compensation provided forby that institution. If theworking duties of such student are excluded by statutory definition, there would be no coverage. yours,

D C.MARTIN
Prepared by Bill Campbell Assistant Attorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman John Banks Max Hamilton James Hackney S. J.Aronson SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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