5 

i 

JIM MAlTOX 

Attorney General 

Suprema GxWt BUlldlnQ 

P. 0.80x 1254S 

~ustm. TX 7871% 2548 

51214752501 

Talea 9101074-1357 

1aiecopiar 512l4750286 

714 Jackson. Suit0 700 

Oaltaa, TX. 75202.4508 

214/742+.944 

4S24 Alberta Ave.. Suite 180 

El Paso. TX. 799052793 

915/53%34S4 

1Wl Texas. suite 700 

“ouston. TX. 77002.3111 

713l223.5888 

808 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

SOW747.5235 

4309 N. Tenth. Suite 6 

McAllan. TX. 78501-%S5 

5121882.4547 

200 Ma,” Plea, Suite 400 

sari Antonlo. TX. 7S2052797 

51212254191 

An Equal OpportunitYl 

Afllrmatlve Action Employer 

The Attorney General of Texas 

Mar 91 10, 1986 

Honorable Rane A. Gucrra 

Criminal District Attorney 

Ridalgo County Courthouse 

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 

Dear Mr. 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 ma9 receive 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 OX loans 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. As wil:. be shown, the present constitutional authority for 

counties to provide workers’ compensation benefits was adopted beceuse 

of the constitutic~moal limits about which you ask. A brief background 

of these provlsiDns must precede our response to your specific 

questions. 

Article III, section 52 of the Texas Constitution prchibjts 

counties from makjng grants or loans of money or of any other 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 added to article III in 1948 in part to 

overcome the effect of section 52. 

Article ITI, section 6C of the Texas Constitution provides: 

WORKPEN’s COMPENSATIO?? INSQTMCE FOR EHPLOYEES 

OF COUNTIES AND OTHER POLITICAL. SUBDIVISIONS. The 

p. 2028 
Eonorable Rene A. Guerra - l?rrge 2 (JM-447) 

Legislature shell have the power to pass such laws 

as may be necesmry to enable all counties and 

other political eubdivisiona of this State to provide Workman’s Compensation Insurance, includiog 

the right to pmride its own insurance risk, for 

all amployees o!i the county or political subdivision as in its judgment is necessary or required; end the 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 premiums on t,uch policies of insurance and the 

benefits to be pr,id thereunder. 

In 1973 the legislature made workers’ 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 by work-related injuries, 

Bullerd v. Universal Undengriters Insurance Company, 609 S.W.2d 621, 

626 (Ter. Civ. App. - AmarZllo 1980, no writ), 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 l mployee’c, injury and upon the employee’s salary. The 

workers’ compensation stat,utes applicable to counties do cot authorize 

counties to pay, at thefr discretion. additional compensation for loss 

of earning capacity eausecl by a vork-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 Rene A. 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 county funds. . . . 

As vi11 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. E 1 though this 

provision authorizes the county to "fix the aunt of compensation," 

it does not authorize p;byments which 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. 

As will 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 53 of article IT1 on retroactive payments by tbr county cf 

certain benefits to the beneficiaries of s deceased county anplopee. 

The opinion 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 :;n question. Article III, section 53 of the 

Texas Constitution provides: 

COUNTY OR MUNICIPAL AUTHORITIES; EXTRA C@MPENSATION; uNAuTalx.IzED CLAIMS. The Legislature 

shall have no power to grant. or to authorize any 

county or municipal authority to grant. any extra 

compensation. fee or allowarxe to a public 

p. 2030 
Ronoreble Rene A. Guerre - Page 4 (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, we believe 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 

and the employee’s salary, are prohibited by the Texas Constitution. 

You indicate. however, that the situation in Aidalgo County 

requires consideration of both retroactive and prospective payments of 

the difference between ao employee’ s workers’ compensation benefits 

and regular salary. The court 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. 536 S.W.2d st 657; 

see also El Paso County ‘1 Jeffers, 699 S.W.2d 375 (Tex. App. - El 

Paso 1985, DO writ); 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 

1975 amendment, which requires offset for certain benefits, to article 

8309h might prevent suck. payments of extra workers’ compensation 

benefits after 1975. Id. 

- 

The legislature amendted section 5 of article 8309h in 1975 to 

provide for offset. See A,cts 1975. 64th Leg., ch. 404, Il. at 1041. 

Section 5 of 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 and directly 

to the persoo entitled thereto, unless the 

liability is redeemed as in such cases provided 

elsewhere herein. Provided further, however, that 

any and all sums for 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 and ef’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 the Ikefits 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 Rene A. Guerrs - 'Page 5 (Jn-447) 

the pension fuod cm the mount of money by vhich 

his wage Y(LE offset end provided further that 

under no circumstances shell ao employee's pension 

benefit be reduccid, 8s a result of his injuries or 

any compensation xeceived under the provision of 

this Act, unless isuch reduction is s result of a 

pension revision ,paesed by mjority vote of the 

affected members Iof a pension system. (Emphasis 

added). 

V.T.C.S. art. 8309h. S5(a). 

The phrase in sectiot ?(a) vhicb causes concero is the one which 

requires offset of sums received for izcapaciry in acccr&nce with 

“any other statutes now in force and effect that provide for payment 

for incapacity to vork because of injury on the job" vheo that injury 

is also covered by artlclr 83C9h. Article 3912k wss "in force and 

effect" at the t1r.e section S(a) was amended in 1975. See Acts 1971, 

62nd Leg., ch. 622, at 20119. Thus. we must deeern&zhethtr the 

payment of additional benr,f its, 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 and purpose of ,:he amendment as 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 ioc apscity . 

This bill vou1.d insure that payments ,pde for 

work-related locapacity under other itatutory 

plans sre credited agaiost amounts due btiuder the 

Workmen's Cospenmtion Act. 

Section 1 ammds Arttcle 83C9b to ensure that 

vorkmen's co~ensation payneots are lessened by 

amounts paid 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 xnade parsuant 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. 2032 
Ronorable Rene A. Guerra - :?trge 6 (Jn-447) 

In ~1 Paso 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. The court atsted: 

. 

[Alo 8309h offsef: aupliee to funds for incapacity 

deceived pureuanf to-the firemen's and policexen'b 

civil service prEvisiona 'and soy other statutes 

now in force and-effect.' We have beau cited to 

no offset etatut; applicable to deputy sheriffs. 

The reauirement 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 law of the 

state and csnnot 'be altered by legislstive smendmeats. [citation omitted]. On its face, the 

statute cited 12 Appellant does not apply to 

deputy sheriffs, and if It did it would be in conflict with=Texas Coostitutioo. The Appellant 

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. Payments uoder 

article 3912k can be dis,tingulshed ss reimbursement for loss of 

salary. Consequently se&too 5 of 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 may receive sick leave 

and vacation leave in .~dditioo to vorkers' compensation benefits 

without violating article 6309h or sections 51. 52, and 53 of article 

III of the Texas 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 and that 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 same considerations apply to payment for the unused sick leave and vacation 

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’ 

compensation benefits. 

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 and vacation 

leave in add5 t ion to workers’ compensation 

benefits. 

Very truly your Jkh . 

JIM NATTOX 

Attorney General of Texas 

JACK HIGBTOWRR 

First Assistant Attorney Central 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Conunittl;a 

Prepared by Jennifer Rigg:3 

Assistant Attorrey General 

p. 2034