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Hon. J. P. Gibbs Opinion No. V-1033

Casualty Insurance Commissioner Board of Insurance Commissioners Re: The applicability ofthe Austin, Texas seven day waiting period provided by Section 6 ofArticle 8306, V.C.S., to workmen’s compensation insurance on county Dear Sir: employees.

Your request for an opinion reads as follows: “Controversy has arisen over H.B. 611, 51st Legislature, 1949 (Article 8309-C) which provides for Workmen’s Compensation Insurance for County Employees.
“The point at issue is whether H. B. 611 provides for awaiting period of seven days before compensation is payable or whether compensation is payable from the first day ofdisability. The general Workmen’s Compensation Act, inArticle 8306, Section 6, provides that no compensation shall be paid for an injury which does not incapacitate the employee for aperiod 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 ofthis law. At the head ofthe 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, sinceHon. J. P. Gibbs, Page 2, V-1033.

Section 5ofArticle 8306 was not amended by the Fortieth Legislature. Section 6, ofArticle 8306 was amendedby the Acts of 1927, Fortieth Legislature, Page 84, Chapter 60, Section 1, and no other section is amended atthat point.
“House Bill 611, as printed inthe House, calls for Section 6, of Article 8306 and the same bill inthe Senate also shows Section 6. This bill was ameridelTinthe Senate in some minor respects, but none ofthese amendments recites any change inthis part ofwhat
was then Section 7, ofH. B. 611. One of the amendments eliminates Section 4, ofthe House Bill and di- ‘

. rects that the sections be renumbered. The sections were renumbered and the Secretary ofState has the copy ofthe bill onwhich the changes were made. The reference to Section 6, ofArticle 8306 evidently was changed to read ‘Section z atthis time.

“It is significant that the State Highway Department Workmen’s Compensation Act (Article 6674-s). the Agricultural and Mechanical College Compensation Act (Article 8309-b) have the same section as the present Section 6ofH.B. 611, and in each case it is Section a, ofArticle 8306 which is included, not Section 5 of 8306, which relates to Exemplary Damages.
“The immediate question before the Board ofInsurance Commissioners arises because the Workmen’s Compensation Insurance carriers contend that H. B. 611 does not provide for the usual seven day waiting period andthey have requested increased rates on County Employees Workmen’s Compensation Insurance to cover the substantially greater amounts of compensation to be paid if compensation begins to accrue with the first day ofincapacity due to injury. IfH. B. 611 does embody the
same waiting period found inthe other similar acts, no increased rates are needed.
“Please advise us as towhether or not, inyourHon. J. P. Gibbs, Page 3, V-1033.

opinion, the seven day waiting period provided inArticles 8306, 6674-c and 8309-b is also apart ofH.B. 611 (Article 8309-c).”
We have likewise checked this bill (H.B. 611) inthe office ofthe Secretary of State and find that as ofthe 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 indicated.)
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 inyour 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 andwithout apparent intent by the Legislature.

Itis 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 Agricultural and Mechanical College Directors, each contains the provision as found inthe original version ofHouse Bill 611, as follows :
“Unless otherwise provided herein, Section 6, as amended byActs 1927, 40th Legislature, page 84, Chapter 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 inthis 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 ofthem 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 employd atthe time ofthe injury causing the death ofthe latter. Inany 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 Industrial 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. Itis a fundamental rule oflaw 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 5ofArticle 8306 does not give anyone a cause ofaction 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 inthe first instance, he could not recover exemplary damages for the wilful or malicious acts or gross negligence of other State employees. The inclusion ofSection 5ofArticle 8306 would be a meaningless act onthe part ofthe Legislature unless its implications 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 forHon. J. P. Gibbs, Page 5, V-1033.

an injury which does not incapacitate the employe’ for
aperiod 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 7hereof, shall be supplied as andwhen needed and according to the terms andprovisions of said Section 7. Ifincapacity does not follow at once after the infliction ofthe injury or within eight days thereof but does result subsequently, compensation shall begin to accrue with the eighth day after the day incapacity commenced. Inany event the employe’ shall be entitled to the medical aid, hospital service and medicines provided inthis law. Provided further, that if such incapacity continues for four (4) weeks or longer, compensation shall be computed from the inception date of such incapacity.”
Conclusive indication ofthe legislative intent to adopt Section 6instead ofSection 5is that the Bill, from its inception until signed by the Governor, makes the following reference:

,I

. . . . as amended by Acts, 1927, Fortieth Legislature, page 84, Chapter 60, Sections 1,_~.. .I’
As seen above, this reference is descriptive ofSection 

### 6. Clearly, such reference could not apply to Section 5ofArticle 8306 because Section 5was not in fact so amended. IfSection 5of Article 8306 is included, that reference is meaningless. On the other hand, it appears obvious that the Legislature intended to incorporate Section 6ofArticle 8306 as part of Article 8309c, just as it had done on two prior occasions, i.e., Article 6674s, the State Highway Department Workmen’s Compensation Act, and Article 8309b, the A 8 M College Workmen’s Compensation **Act.**

Obvious mistakes inthe language of anAct should be construed by the court to make sense where otherwise the Act would do athing 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 inArticle 2956, V.C.S., should read “expects to be absent,” stating that “statutes should be construed so as to carry out legislative intent, andwhen such intent is ascertained it should be given effect even though literal meaning ofwords used in statute is not followed.”

InLoving County v. Reeves County, 126 S.W. 2d 87 (Tex. Civ. App. 1939, error ref.) the court made acorrection in an incorrect 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 disregarded where the clear intent ofthe 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” ofTitle 119, Revised Statutes of 1911, to read “6984 and 6985,” ,“, .

Again, in Camden Fire Insurance Association v. Harold E. Clayton &Co., 117 Tex. 414. 6S.W. 2d 1029 (1928) the Supreme Court, speaking through Chief Justice Cureton, construed the language “shall not be invalidated by any act ofneglect ofthe mortgagee or owner ” as found inArticle 4931 to read “shall not be invalidated by any act 2 neglect ofthe mortgagor or owner.” The court reasoned that the terms ofthe statute involved are so plain that there can be no doubt whatever that its purpose was to protect the holder ofthe mortgage, towhom the policy was made payable under the loss payable clause, from ‘any act or neglect of the mortgagor.’ ”

Therefore, since the Legislature specifically described Section 6by the quoted reference, and ontwo prior occasions similar Acts ofthe Legislature included Section 6, and not Section 5, and nothing inthe Act indicated an intention to impose exemplary damages onthe State, and because statutes should be construed ina manner to carry out the legislative intent, it is our opinion that the provisions ofSection 6ofArticle 8306 were enacted into Article 8309~.Hon. .J. P. Gibbs, Page 7, V-1033.

SUMMARY

The seven day waiting period provided for in Section 6ofArticle 8306, V. C. S., is also apart ofArticle 8309c, V. C. S., setting up aworkmen’s compensation system for county employees.
Yours very truly,

APPROVED: PRICE DANIEL Attorney General
Ned McDaniel State Affairs Division
Charles D. Mathews Executive Assistant Assistant
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