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i

JIM MAlTOX AttorneyGeneral

SupremaGxWt BUlldlnQ P.0.80x 1254S ~ustm.TX 7871%2548 51214752501 Talea 9101074-1357 1aiecopiar 512l4750286

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AnEqualOpportunitYl Afllrmatlve Action Employer 

# TheAttorney General ofTexas

Mar9110, 1986

Honorable RaneA. Gucrra Criminal District Attorney Ridalgo CountyCourthouse Edinburg
,Texas 78539 Opinion No. Ju-447
Re: Whether a county may pay employecs injured on the job the difference between their regular salary and their workers’ compensation benefits
DearMr. Guerra:
You question the constitutionality of a current practice in Ridalgo County o:I paying injured county employees the difference between their workers’ compensation benefits and their salary. You also ask whether an injured employee ma9receive accrued sick leave and vacation 1eaT’c’in addition to workers’ compensation benefits. Your coucern focuses on provisions of the Texas Constitution which prohibit grants OXloans of public money. See Tex. Const. art. III, #551. 52, 53. -

Counties havlr.only those pavers that are granted expressly or that must be implted from the authority granted or duties imposed by the Texas Constltrltion or statutes. Canales v. Laughlin, 214 S.W.2d 451. 453 (Tex. 191;8). Accordingly, your questions require consideration of grants of authority as veil as constitutional limits on its exercise. Aswil:. be shown, the present constitutional authority for counties to provide workers’ compensation benefits wasadopted beceuse of the constitutic~moal limits about which you ask. Abrief background of these provlsiDns must precede our response to your specific questions.
Article III, section 52 of the Texas Constitution prchibjts counties frommakjnggrants or loans of moneyor of anyother thing of value. See also Ift?x.Const. art. III, 551. Because a county is not inherently liable ,for injuries to its employees, section 52 at one time prevented cslntles from providing any workers’ compensation benefits for its employees. See Attorney General Opinion O-5315 (1943). Section 60 was addedto article III in 1948 in part to overcome the effect of section 52.
Article ITI, section 6Cof the Texas Constitution provides:

WORKPEN’s

COMPENSATIO??

INSQTMCEFOREHPLOYEES OFCOUNTIES

ANDOTHER

POLITICAL.

SUBDIVISIONS.The

p. 2028Eonorable ReneA. Guerra - l?rrge2 (JM-447)

Legislature shell have the power to pass such laws as maybe necesmry to enable all counties and other political eubdivisiona of this State toprovide Workman’s Compensation Insurance, includiog the right to pmride its owninsurance risk, for all amployees o!i the county or political subdivision as in its judgment is necessary or required; endthe Legislature shell provide suitable laws for the admtinistration of such insurance in the counties or pollticel subdivisions of this State and for tt,e payment of the costs, charges sod premiumsont,uchpolicies of insurance andthe benefits tobe pr,id thereunder.
In 1973 the legislature madeworkers’ compensation mandatory for all political subdivisions. See Acts 1973, 63rd Leg., ch. 88. 517, at 198 (codiffed as V.T.C.S. &.309h); Attorney General Optnion E-338 (1974). Section 2(e) of article 8309h provides:

All political subdlvisioos of this state shall become, either !self-insurers, provide insurance under workmao

’s compensation insuraoce contracts or policies, or anter into interlocal agreements with other political subdivisions providing for self-insurance, clxtending workmen’s compensation benefits to their smployees. Ridalgo County presently grwldes workers’ compensation insurance for its amployees through the Texas Association of Counties Workers’ Compensation Self-Insurance Fund.
Workers’ compeosatioa benefits are Intended to retmburse an employee for loss of earning capacity caused bywork-related injuries, Bullerd v. Universal Undengriters Insurance Company, 609 S.W.2d 621, 626 (Ter. Civ. App. - AmarZllo 1980, nowrit), not for loss of salary. See El Paso County v. JeE!C!. Phso 1985, 00 writ). 699 S.W.2d 375. 377 (Tex. App. - El Article 8309h and the general workers’ compensation statutes that it makes applicable to counties, see 13, specify formulas for deta!rmining the amount of compensationdue an injured employee. These formulas are based upon the nature and duration of the

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mployee’c, injury anduponthe employee’s salary. The workers’ compensation stat,utes applicable to counties docot authorize counties to pay, at thefr discretion. additional compensation for loss of earning capacity eauseclby avork-related injury. Because counties have only expressly grsnctrd or neccsserlly implied powrrs, we must determine vhrther any other statutes authorize the payment of the difference between an aq:loyee’s worker’s compensation benefits and salary.

p. 2029. . Aouorable ReneA. Cucrrr - :Pcgc 3 (a-447)

Article 3912k, section 1, V.T.C.S., authorizes the conmissioners court of each county to

fix the amour& of compensation, office expense, travel expense, and all other l llovances for county and prec:inct officials end employees who
are paid wholly from countyfunds.

. . . Asvi11 be shown, additional workers' compensation benefits could be viewed not as workers' cor:pensatlon benefits per se, but as an element of an employees pre-establlshcd, regular coqansation. E1though this provision authorizes the county to "fix the aunt of compensation," it does not authorize p;bymentswhich are prohibited by statute or which amount to gifts or S.rants of public money in violation of constitutlonal prohibitions.
Authorities which coosidar sitilar types of payments distinguish between an ex post facto decision to award extra brnefits and a prospective decision to mdre certain extra benefits a standard part of compensation. See, e.g. :, City of Corpus Chr3cit.i v. Herschbarh, 536 S.W.Zd 653 (Tex. Clv. App. - Corpus Christi 1976. vrit ref'd n.r.e.); Attorney General Opinion E-51 (1973). Your request l~etter reveals that Hidalgo County has followed an informal practice of granting extra compensation ss jndividusl injuries occur and that it now proposes to make this extra compmsation part of a standard policy. Aswill be shown in the discussion to follov, the Texas Constitution prohibits a retroactive award of the differrnce betveen an injured county employee's workers compensation benefits and his regular salary. Attorney General 0p:inion E-51 dealt with the effect of sections 51, 52, acd 53of article IT1 on retroactive payments by tbr county cf certain benefits to the beneficiaries of s deceased county anplopee. Theopinion determined ttst because the commissioners court lacked the constitutional or statutory authority to provide retroactively for death banoflts. the actic'n constituted an unconstitutional grant or gift of public money. ‘Ihe issue in Attorney General Opinion E-51 is analogous to the instant one. Although Attorney General Opinion B-51 did not rely explicitly upon artfcle III, sect3on 53, ve believe that section 53 is particularly relevant to the case at haod with regard to retroactive awards of the benefits :;nquestion. Article III, section 53 of the Texas Constitution provides:

COUNTY

ORMUNICIPAL

AUTHORITIES;EXTRAC@MPENSATION; uNAuTalx.IzED CLAIMS. The Legislature shall have nopower to grant. or to authorize any county or municipal authority to grant. any extra compensation. fee or allowarxe to a public

p. 2030Ronoreble Rene A. Guerre - Page4 (JM-447)

officer, agent, servant or coatrector, after service has been rendered, or a contract has been entered into, ml performed in whole or in part; nor pay, uor aUth~DTiZe the payment of, any claim created age&et my county or semicipality of the State, under my agraenent or contract, made vithout suthoritl, of lsv. Consequently, webelieve that retroactive payments by the county of additional benefits, vbich are measured by the difference between an injured employee’s workers’ compensation benefits under article 83C9b andthe employee’s salary, are prohibited by the Texas Constitution.
You indicate. however, that the situation in Aidalgo County requires consideration of both retroactive andprospective payments of the difference between ao employee’ s workers’ compensation benefits andregular salary. Thecourt in City of Corpus Christ1 v. Ferschbach suggested that the receipt of “extra” workers’ compensation benefitrr, which are authorized by s’tatute, might be authorized as part of the employee’s pre-established, regular compensation. 536S.W.2d st 657;
see also El Paso County‘1 Jeffers, 699 S.W.2d 375 (Tex. App. - El Paso 1985, DOwrit); Actcrney General Opinion g-860 (1976). Therefore, the payments woulti not constitute “extra compensation” in violation of article III. rrectioo 53 of the Texas Constitution. 699 S.W.2d st 377. Ntverthelc:ss, the court suggested, in dicta, that a 1975amendment,which requires offset for certain benefits, to article 8309h might prevent suck. payments of extra workers’ compensation benefits after 1975. Id. - The legislature amendtedsection 5 of article 8309h in 1975 to provide for offset. See A,cts 1975. 64th Leg., ch. 404, Il. at 1041. Section 5of the statu=currently provides, in part:

(a) It is tl,e purpose of this article that the compensation herlein provided for shall be paid from veek to we&k sod as it sccrues anddirectly to the persoo entitled thereto, unless the liability is redeemed as in such cases provided elsewhere herein. Provided further, however, that anyandall sumsfor incapscity received in accordance vith Chap& 325, Acts of the 50th Legislature, 1947, as-smended (Article 1269m, Vernon’8 Texas Civil Stacttes), and any other statutes now in force andef

’iect that provide for payment for incapacity --

to r,ork because of injury on the job that is also co&ed by this Act are hereby offset ss sgainst theIkefits provided under this Act to the extent apr;iicable. Provided that wheo an employee’s wag@?is offset as prescribed above, both the employer and the employee shall pay Into

p. 2031. , Honorable ReneA. Guerrs - 'Page5 (Jn-447)

the pension fuod cmthe mount of money by vhich his wage Y(LEoffset end provided further that under nocircumstances shell aoemployee's pension benefit be reduccid,8s a result of his injuries or any compensation xeceived under the provision of this Act, unless isuchreduction is s result of a pension revision ,paesed by mjority vote of the affected members Iofa pension system. (Emphasis added).
V.T.C.S. art. 8309h. S5(a).
Thephrase in sectiot ?(a) vhicb causes concero is the one which requires offset of sums received for izcapaciry in acccr&nce with

“any other statutes nowin force and effect that provide for payment for incapacity to vork because of injury onthejob" vheo that injury is also covered by artlclr 83C9h. Article 3912k wss "in force and effect" at the t1r.e section S(a) wasamendedin 1975. See Acts 1971, 62nd Leg., ch. 622, at 20119. Thus. we must deeern&zhethtr the payment of additional benr,fits, which sre measured by the difference between an iojurad wloyr,as workers' coqensation benefits and the employee's salary, pursuant to article 3912): falls b*thin "any other statutes" within the waoinS of article 8X9t. section 5.
The bill analysis to the anendaent requiring offset states the background andpurpose of ,:he amendmentas foliovs:

Present law 1:;not clear that workmen's covensation beoefits are paid lo lieu of, and not in addition to, other statutory paymeots made for vcrk-related iocapscity

. This bill vou1.d insure that payments,pde for work-related locapacity under other itatutory plans sre credited agaiost amounts duebtiuder the Workmen's Cospenmtion Act.
Section 1 ammds Arttcle 83C9b to ensure that vorkmen's co~ensation payneots are lessened by amountspaid under other statutory plans.
Bill Analysis to S.B. ND. 828. prepared for Senate Commirtce on Economic Development, filr:d. in Eill Pile to S.B. No. 828, Legislative Reference Library. Psynle.nts of additional benefits, which are measured by the difference between workers' coqensation benefits and salary, that are xnadeparsuant to article 3912k as part of sn employee's pre-establishei;, regular salary are arguably payTents aade for work-related incapacity under other statutory plans.

p. 2032Ronorable ReneA. Guerra - :?trge6 (Jn-447)

In ~1Paso Couoty v. Jeffers. e. however, the court suggested that section 5 of article 8309hwas intended to offset only existing statutes which speciflcaL:Ly provided for worker's coinpensstioi beneflte. Thecourt atsted:

.

[Alo 8309h offsef: aupliee to funds for incapacity deceived pureuanf to-the firemen's andpolicexen'b civil service prEvisiona 'and soy other statutes nowin force and-effect.' We have beau cited to no offset etatut; applicable to deputy sheriffs. Thereauirement t&t deoutv sheriffs receive their *maxi&w salary' while incapacitated from Injuries received in the course of their duties is provided for by the Taxas Coostltucioo. It is fundamental that the Constitution is the paramount lawof the state and csnnot 'bealtered by legislstive smendmeats. [citation omitted]. On its face, the statute cited 12 Appellant does not apply to deputy sheriffs, andif It did it wouldbe in conflict with=Texas Coostitutioo. TheAppellant was in error in ~:lsiming an offset under srticle 8309h. (Emphasis added).
699 S.W.2d st 377. In oth'er vords the court suggests that section 5 of article 8309h was intended to require ooly offset of specific workers' compensation sts1:utes such as article 1269m. Article 3912k. in contrast. provides fsor the general compensation of county employees.
Workers' compensation benefits reimburse for loss cf earning capacity, not for loss of isalary. 699 S.W.2d at 377. Paymentsuoder article 3912k can be dis,tingulshed ss reimbursement for loss of salary. Consequently se&too 5of article 8309h does not prevent the county frompaying the dif,ference between injured employees' worker's compensation'" benefits acd their regular salaries as part of the employees' pra-established,, overall compensation under article 3912k.
You also ask whether, sn injured employee mayreceive sick leave and vacation leave in .~dditioo to vorkers' compensation benefits without violating article 6309h or sections 51. 52, and 53of article III of theTexas Constitution. As indicated, Attorney General Opinion H-51 determined that ret::oactive payments of death benefirs were not authorized by the Texas C,onstitutioo or ststutes andthat they therefore constituted unconstitutional grants or gifts of public funds. The opinion distinguishtd unused vacation time aod other forms of accrued compensation. Because these types of compensation were authorized aod had alreod:y been earned, payment of such benefits to survivors vas not deemed an unconstitutional grnnt. The sameconsiderations apply to payment for the unused sick leave andvacation time that an injured county employee has already earned; therefore,

p. 2033. Honorable Rem A. Gucrro - Page 7 (JM-447)

such payments do not viola’to the Texas Corzstitution. Conaequenriy. the county is not prohibp:trd from paying an injured county employee accrued sick leave and vacation leave in addition to workers’ compensationbenefits.

SIJMMARY

Hidalgo Cour.ty may not make retroactive payments to lnjwed county employees of extra workers’ compenwtion benefits measured by the difference betwren their workers’ compensation. benefit; under article 8309h. V.T.C.S., and their salary. If the (county makes additloul workers’ compensation benefits a part of county employees’ pre-established, regular compensation under article 3912k. the benefits need not be offset against the benefits provided under article 8309h. The county is not prohibited from paying an injured employer: accrued sick leave andvacation leave in add5tion to workers’ compensation benefits.

Very truly your 

# Jkh

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JIM NATTOX Attorney General of Texas
JACKHIGBTOWRR First Assistant Attorney Central
MARY KELLER Executive Assistant Attorney General
ROBERT

GRAY Special Assistant Attorney General
RICKGILPIN Chairman, Opinion Conunittl;a Prepared byJennifer Rigg:3 Assistant Attorrey General

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