*_ . 

EA NEY GENERAL. 

OF TEXAS 

AUSTIN. TEXAS 78711 CRAWYORU c. MAR-rlN 

*x-rORNEW GEZWERAI. 

December 2, 1969 

Honorable Joe B. Roberts Opinion No.M-527 

Chairman, Texas Industrial 

Accident Board .Re: Whether, in light of Senate 

State Insurance Building Bill 580, Acts of,the 61st 

Austin, Texas' 78701 Legislature, Regular Session, 

1969, a county which is not 

a subscriber to some form of 

workmen's compensation insurance,has waived its common 

law defenses~to a suit for 

injury or death of a county 

Dear Mr. Roberts: ~,employee. 

Your recent request for the opinion of this office 

is concernedwith Senate Bill !i80,, es passed during the-~regular 

session of ~the 6lst Legislature, 1969, which amends Section 6 

of Article 8309c, Vernon's Civil Statutes. .Particularly, you 

ask whether a county which is not a-subscriber to some form 

of workmen's compensation insurance has waived its common law 

defenses to a suit brought against the county to recover for 

the injury or death of one of its employees. Your request 

points out that amending Section 6 of.Article 8309c, V.C.S., 

to include Section.4 of Article 8306,~V.C.S;, has given rise 

to this inquiry,-and you have directed attention to the case 

of Boswell v. Cityof Sweetwater,M341,S,W.2d 664 (Tex.Civ.App.~ 

1961, error ref.) in this regard. 

Senate Bill 580 reads, in part: 

I . . . 

"Set, ..6. Adoption of General Workmen's 

Compensation Laws. 

"(a) The following laws as amended or as 

they may hereafter be amended are.adopted except 

to the ertent,that they are inconsistent with 

this Act: 

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. . . 

Hon. Joe B.*Roberts, page 2 (R-827) 

"(1) Sections 1, 3, 3a, 3b, 4, . . . of 

Article 8306, Revised Civil Statute8 of Texas, 

1925, as amended; 

It . . . "' (Emphasis added.) 

Section 4 of Article 8306,"V.C.S., reads: 

"Sec. 4. Employes whose employers are not 

at the time of the injury subscribers.to said association,, and the representatives and beneficiaries 

of deceased employes who at the time of the injury 

were working for nonsubscribing~ employers can not 

participate ,inthe~benefits of said insurance association, but they shall be entitled to bring suit 

and may recover judgment against such employers, or 

any of them, for all damages, sustained by reason 

of any personal injury received inthe course of 

employment or by reason of death resulting from 

such injury, and the provisions of ,section 1 of 

this law shall be applied in all~.such actions." 

Section 1 of Article 8306, V.C.S., to which Section 4 

refers, reads: 

"Section 1.. In an action to recover damages 

for personals knjuries sustained...byan employe in 

the course'of his employment, or for death resulting from personal injury so sustained, it shall 

not be a defense: 

"1. That the employe was guilty of contributory negligence. 

"2. That the injury was caused by,the neglitence of a fellow employe. 

" 3 . That the ~employe had assumed the risk of 

the injury incident to his employment; but such 

employer may defend in such action,.on the ground 

that the injury was caused by the willful intention 

of the employe to bring about the injury, or was 

so caused while the employe was.,in a~,stat.e of intoxication. 

" 4 . In all such actions against an employer 

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Hon. Joe B. Roberts, page 3 (M-527) 

who is not a subscriber, as defined hereafter 

this laws, it shall be necessary to a recovery 

the plaintiff to prove negligence.of such employer 

or some agent or servant of such employer acting 

within the-general scope of his employment." 

In light of the foregoing, it would appear that counties . which are not subscribers to some form of workmen's compensation 

insurance shall be denied the protection of their common law defenses when suit has been brought against the county for the injury or death.of a county employee.- However, Section 3 of Article 

8309c, reads, in part: 

"Sec. 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. zt is expressly understood that the 

provision authorizing counties.to. provide such 

compensation or insurance is permrsslve and not 

mandatory;- provided, however, that 'in any county 

of this state, the Commissioners Court on its 

own motion may call an election..forrthe 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. 

"The Commissioners Court may by proper order 

put into effect the provisions of this Act. The 

Commissioners Court of the county shall notify 

the Board of the effective date of such insurance, 

stating in such notice the nature ~of the.work performed by the employee of the county, the approximate number of employees, and the estimated amount 

of payroll." (Emphasis added.) 

Section 3 of Article 8309c prescribes the manner in 

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. 

Hon. Joe B. Roberts, page 4 (M-527) 

which Article 8309c shall be put into effectin a county. Section 

3 is expressly, by its terms; permissive, not mandatory.- Therefore, until Article 8309~ is put into.effect in a'county by one 

of the means outlined in Section 3,thereof;none of.the provisions of Article 8309c apply to said-county, inc.luding the 

amended Section 6 of Article 8309c; which does away with the 

common law defenses. 

It should be noted that this~conclusion disagrees with 

certain statements,which appear in,~the,.crase-.of-~-~we'll v. City of 

Sweetwater., supra. However, it is the opinion of this office 

that such statements in said case.are:dictum, as they deal with 

a situation which was not before the court for ~argument or 

decision, and; ,therefore, this office.doesnot consider such 

statements as~controlling on the,.issue. 

It is the opinion of this office that Senate Bill 580, 

which amends Section 6 of Article 8309c,,.doeS not eliminate the 

common law.defenses of a county which.has not taken the steps 

necessary to put Article 8309c into-effect in such county. 

Section.6 of Article 8309c, V.C.S., as amended, 

dOeB not a&to abolish the common law defenses of 

a county until Article 8309c becomes effective in 

such county. Article 8309c does not become effective 

in a county until such time as such actions as are 

indicated in.,Section 3 thereof. are aken. 

h 

eneral of Texas 

Prepared.by Bill Corbusier 

Assistant~Attorney General 

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.I . 

Hon. Joe B. Roberts, page 5 (M-527) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton; Vice-Chairman 

Houghton Brownlee 

Wardlow Lane 

Roger Tyler 

MEADE F. GRIFFIN 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

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