*_

.

EA NEY GENERAL. OF TEXAS AUSTIN. TEXAS 78711 CRAWYORUc. 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 countywhich is not a subscriber to some form of workmen's compensation insurance,haswaived 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 ~the6lst 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 insurancehas 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,-andyou have directed attention to the case of Boswell v.Cityof Sweetwater,M341,S,W.2d664 (Tex.Civ.App.~ 1961, error ref.) in this regard.

Senate Bill 580 reads, in part: I

. . . "Set,..6.Adoption of General Workmen's CompensationLaws. "(a) The following laws as amended or as they may hereafterbe amended are.adopted except to the ertent,that they are inconsistentwith this Act:

-2509-. . .

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

. . ."' (Emphasisadded.) Section 4 of Article 8306,"V.C.S.,reads: "Sec. 4. Employeswhose employers are not at the time of the injury subscribers.to said association,,

and the representativesand beneficiaries of deceased employeswho 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 judgmentagainst such employers, or any of them, for all damages, sustainedby reason of any personal injury received inthe course of employment or by reason of death resulting from such injury, and the provisions of ,section1 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 recoverdamages for personals

knjuries sustained...byan employe in the course'ofhis employment, or for death resulting from personal injury so sustained, it shall not be a defense: "1. That the employewas guilty of contributory negligence. "2. That the injurywas caused by,the neglitence of a fellow employe. "3
. That the~employehad assumed the risk of the injury incident to his employment;but such employer may defend in such action,.on the ground that the injurywas caused by thewillful intention of the employe to bring about the injury, or was so causedwhile the employewas.,ina~,stat.e of intoxication. "4
. In all such actions against an employer

-2510-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-generalscope of his employment." In light of the foregoing, itwould appear that counties

. which are not subscribers to some form of workmen's compensation insurance shall be denied the protection of their common law defenseswhen 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-insuringor that it.purchaseworkmen's compensation,insurancefor its employees from any company authorized to do:,business in Texas,,

and is chargedwith the~administrationOf this Act. zt is expressly understood that the provision authorizing counties.to. provide such compensationor insurance is permrsslve and not mandatory;-

provided, however, that 'inany county of this state, the CommissionersCourt on its own motion may call an election..forrthe purpose of determiningwhether,the county shall adopt the provisions-of this Act. If a majority of the qualified voters at such an electionvotes for the adoption of the provisions.of this Act, the provisions of this Act shall thereafterbe applicableto 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 chargedwith the administrationof this Act."The Commissioners Court may by proper order put into effect the provisions of this Act. The CommissionersCourt of the county shall notify the Board of the effective date of such insurance, stating in such notice the nature~ofthe.work performed by the employee of the county, the approximate number of employees, andthe estimated amount of payroll." (Emphasisadded.) Section 3 of Article 8309cprescribes the manner in

-2511-.

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~conclusiondisagreeswith certain statements,whichappear 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 situationwhich was not before the court for~argumentor decision, and; ,therefore,this office.doesnot consider such statements as~controllingon 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.defensesof a countywhich.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 8309cbecomes 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.byBill Corbusier Assistant~AttorneyGeneral

-2512-.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

-2513-