June 6, 1988 

Mr. W. N. Kirby 

Commissioner of Education 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. JM-915 

Re: Whether a school district 

may offset workers' compensasation benefits under article 

8309h, V.T.C.S., against benefits paid pursuant to section 

13.904 of the Texas Education 

Code (RQ-1226) 

Dear Mr. Kirby: 

You ask: 

May a school district offset worker compensation benefits received pursuant to 

Article 830921 [V.T.C.S.], against sick leave 

benefits paid pursuant to Texas Education 

Code, Section 13.904? 

You indicated in your request that this question has arisen 

in connection with a situation in the Edinburg Independent 

School District: 

During the 1985-86 school year, a teacher 

was injured by an assault to which the Texas 

Education Code, Section 13.904 may apply. 

The district paid the teacher's salary for 

the period of time when she was unable to 

work. The teacher also received worker compensation benefits for the same period of 

time pursuant to Article 8309h, V.T.C.S. The 

district's local policy provides for 

offset of the amounts paid under t;: 

district's sick leave and worker compensation 

programs. 

You supplied with your request a copy of the district's 

workers' compensation policy which was adopted on February 

14, 1984, and which provides in pertinent part: 

p. 4573 
Mr. W. N. Kirby - Page 2 (JM-915) 

The District may offset an employee's wages 

paid under the adopted sick leave program 

against any benefits paid under the Workers' 

Compensation Law. When an employee's wage is 

offset, both the employee and the District 

shall make the normal contribution to the 

retirement system on the amount of money by 

which the wage is offset. Art. 830911, Sec. 

5, V.A.T.S. 

V.T.C.S. article 8309h mandates the provision of 

workers' compensation insurance for employees of political 

subdivisions. A school district is a political subdivision 

for purposes of the article. Id. §l(l). Section 5(a) of 

article 8309h provides in part: 

The compensation herein provided for shall 

be paid from week to week and as it accrues 

and directly to the person entitled thereto, 

unless the liability is redeemed as in such 

cases provided elsewhere herein. Provided 

further. however, that anv and all sums for 

incaoacitv received * accordance with 

ChaDter 325, Acts of tie 50th Leaislature, 

1947. as amended /Article 1269m. Vernon's 

Texas Civil Statutes). and anv other statutes 

now in force and effect that DrOVide for 

pavment for incaoacitv to work because of 

iniurv on the iob that is also covered by 

this Act are herebv offset as aaainst the 

benefits orovided under this Act to the 

extent aoolicable, and any sums paid under 

Article III, section 52e, of the Texas 

Constitution, are offset against the 

week-to-week benefits otherwise payable under 

this Act. (Emphasis added.) 

The underscored language was added by Acts 1975, 64th Leg., 

ch. 404, and took effect June 19, 1975. 

The central question here is whether sick leave 

benefits received by a teacher pursuant to Education Code 

section 13.904 are, in the words of section 5, article 

8309h, "sums for incapacity received in accordance with 

. . . any other statutes now in force and effect that 

provide for payment for incapacity to work because of injury 

on the job that is also covered by [article 8309h]. . . .'I 

If the sick benefits in question are such asums" they are to 

be "offset as against the benefits provided under [article 

p. 4574 
Mr. W. N. Kirby - page 3 (JM-915) 

8309h] to the extent applicable." Education Code section 

13.904 provides in pertinent part: 

(a) A state minimum sick leave pr;zi;z 

consisting of five days per year sick 

with no limit on accumulation and transferable among districts shall be provided for 

every teacher regularly employed in the 

public free schools of Texas. Local school 

districts may provide additional sick leave 

beyond this minimum. 

. . . . 

(c) Each district's local board of 

education shall establish a sick leave plan, 

and shall administer the program to assure 

compliance with the intent of the law that 

leave shall be approved only on the basis of: 

(1) an illness of the teacher; 

(2.) an illness of a member of the 

teacher's immediate family; 

(3) a family emergency: or 

(4) a death in the teacher's immediate 

family. 

. . . . 

(f) In addition to all other days of leave 

provided by this section or by the school 

district, a teacher or another professional 

employee of a school district who is 

physically assaulted during the performance 

of his regular duties is entitled to the 

number of days of leave necessary to 

recuperate from all physical injuries sustained as a result of the assault. Days of 

leave taken under this subsection shall be 

reported and reimbursed as sick leave in 

accordance with Subsection (b) of this 

section, but may not be deducted from accrued 

sick leave. The period provided in this 

subsection shall not extend more than two 

years beyond the date of the assault. 

P. 4575 
Mr. W. N. Kirby - Page 4 (JM-915) 

Section 13.904 provides for three different kinds of sick 

leave benefits: state minimum sick leave (five days per 

year) ; additional sick leave as may be provided by a local 

school district; and what we will characterize as "assault 

sick leave" under subsection (f). 

I~Assault Sick Leave" and Article 8309h. 

The assault sick leave provision, subdivision (f) of 

section 13.904, was added by Acts 1983, 68th Leg., ch. 334, 

and took effect on September 1, 1983 pursuant to section 3 

of that act. It was therefore not "in force and effect" 

when the offset provision of section 5(a) of article 8309h 

was enacted and took effect in 1975 (see sunra, p. 3). 

Therefore, in that they were not provided for by statute "in 

force and effect" at the time article 8309h section 5(a) was 

enacted and took effect in 1975, assault sick leave benefits 

under Education Code section 13.904, subsection (f) may not 

be offset under article 830911, section 5(a), against the 

workers' compensation benefits provided for in article 

8309h. 

State and Local Sick Leave and Article 8309h 

In contrast, the provisions of subsection (a) of 

Education Code section 13.904 regarding state minimum sick 

leave benefits, and additional benefits the local district 

may provide, have been in effect since 1969 (Acts 1969, 61st 

Leg., ch. 874) and were thus "in force and effect" when the 

offset provision of article 8309h was enacted in 1975. The 

next issue for consideration is then whether the provision 

of section 13.904(a) with respect to state and local sick 

leave benefits is, in the language of article 830911, section 

5, a statute that "provide[s] for payment for incapacity to 

work because of injury on the job that is also covered by 

[article 8309h].11 If so, such state and local sick leave 

benefits are to be offset against workers' compensation 

benefits received under article 8309h. For the reasons 

elaborated below, we are of the opinion that state and local 

sick leave benefits under section 13.904(a) may not be 

offset under article 830911, section 5. 

Article 8309h, section 5, specifically cites two 

provisions for benefits which are to be offset, or against 

which workers' compensation benefits are to be offset: 

V.T.C.S. article 1269m and Texas Constitition article III, 

-, 

p. 4576 
Mr. W. N. Kirby - Page 5 (JM-915) 

section 52e.l In our opinion, consideration of these two 

specific provisions cited gives an indication of the scope 

of the section 5 language referring to "other 

statutes . . . that provide for payment for incapacity to 

work because of injury on the job." 

The pertinent provisions of article 1269m (codified in 

1987 as section 143.0452(a) and (b), Local Government Code) 

were found in section 26 of that article and have been "in 

force and effect," and substantially unchanged, since before 

the enactment of the offset provision of section 5 of 

article 830911 in 1975: 

Permanent and temporary employees in the 

classified service shall be allowed a total 

of sick leave with full pay computed upon a 

basis of one and one-fourth (l?) full working 

days allowed for each full month employed in 

a calendar year so as to total fifteen (15) 

working days to an employee's credit each 

twelve (12) months. 

Employees shall be allowed to accumulate 

fifteen (15) working days of sick leave with 

pay in one (1) calendar year. 

Sick leave with pay may be accumulated 

without limit and may be used while an 

employee is unable to work because of any 

bona fide illness. In the event that the 

said emnlovee can conclusivelv Drove that the 

illness was incurred while in oerfonnance of 

his duties, an extension of sick leave in 

case of exhaustion of time shall be aranted. 

(Emphasis added.) 

Acts 1957, 55th Leg., ch. 391 at 1175. (The underscored 

language was codified in Local Government Code, section 

143.045(b) as follows: "If an ill fire fighter or police 

officer exhausts the sick leave and can conclusively prove 

1. &g the discussion in footnote 3 of this opinion 

regarding the holding of El Paso Countv v. Jeffers, 699 

S.W.2d 375 (Tex. App. - El Paso 1985, no writ) with respect 

to article III, section 52e, and the legislative action 

taken subsequent to that decision. 

p. 4577 
Mr. W. N. Kirby - Page 6 (JM-915) 

that the illness was incurred in the performance of duties, 

an extension of sick leave shall be granted.") 

Similarly, article III, section 52e of the Texas 

Constitution was adopted in 1967, and provides in pertinent 

part: 

Each county in the State of Texas is 

hereby authorized to pay all medical 

expenses, all doctor bills and all hospital 

bills for Sheriffs, Deputy Sheriffs, 

Constables, Deputy Constables and other 

county and precinct law enforcement officials 

who are injured in the course of their 

official duties; providing that while said 

Sheriff, Deputy Sheriff, Constable, Deputy 

Constable or other county or precinct law 

enforcement official is hospitalized or 

incapacitated that the county shall continue 

to pay his maximum salary; providing, 

however, that said payment of salary shall 

cease on the expiration of the term of office 

to which such official was elected or 

appointed. (Emphasis added.) 

Both section 26 of article 1269m (now Local Government 

Code section 143.045 (a) and (b)) and article III, section 

52e of the Texas Constitution specifically provide for 

benefits where persons are injured or "incur illnesses" in 

the course of their duties. 

In our opinion, the specific citation of article 1269m 

and Texas Constitution article III, section 52e in article 

830921, section 5, indicates that the legislature intended 

that the words "any other statutes . . . that provide for 

payment for incapacity to work because of injury on the job" 

refer to other statutes like article 1269m and Texas 

Constitution article III, section 52e -- i.e., other 

statutes that specifically provide for '*pa ent 

?F 

for 

incapacity to work because of injury on the job." 

2. Such construction comports with the doctrine of 

eiusdem aeneris, a tVprimeq* rule of statutory construction 

which requires that "where in a statute general words follow 

a designation of particular subjects . . . the meaning of 

the general words will be restricted by the particular 

(Footnote Continued) 

- 

p. 4578 
P 

,- 

Mr. W. N. Kirby - Page 7 (JM-915) 

The provisions of Education Code section 13.904 which 

were in "force and effect" when the offset provision of 

article 830921, section 5 was enacted in 1975 did not 

specifically provide for payments for l'incapacity to work 

because of injury on the job" and thus payments received 

under section 13.904 are not subject to offset under section 

5 of article 8309h. 

This conclusion is reinforced by the ruling in Attorney 

General Opinion JM-447 (1986) that sick leave benefits 

granted to county officials and employees under former 

article 3912k were not subject to offset under section 5 of 

article 8309h. Article 3912k made no specific provisions 

for payment for incapacity to work because of injury on the 

job, but merely authorized the county commissioners of a 

county to 

fix the amount of compensation, office 

expense, travel expense, and all other 

allowances for county and precinct officials 

and employees who are paid wholly from county 

funds. . . . 

JM-447 is the only opinion of this office dealing with 

the scope of the offset provisions of section 5 of article 

830911.3 

(Footnote Continued) 

designation in such statute." Farmers' & Mechanics' Nat. 

Bank v. Hanks, 137 S.W. 1120 (Tex. 1911). See also Stanford 

V. Butler, 181 S.W.Zd 269 (Tex. 1944) and Hammond v. Citv of 

Dallas, 712 S.W.2d 496 (Tex. 1986). 

3. Three court opinions have considered section 5 of 

article 8309h, but none is dispositive of the issues 

presented here. Citv of Corous Christi v. Herschbach, 536 

S.W.2d 653 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd 

n.r.e.) held that section 5 operated prospectively and could 

not be applied to offset benefits received under article 

1269m where the injury in question had occurred prior to the 

adoption of section 5. 

Anaelina Countv v. Modisette, 667 S.W.2d 881 (Tex. App. 

- Beaumont 1984, no writ) dealt with pension benefits and 

the holding there turned on a reading of the proviso of 

section 5, not quoted above because not relevant to the 

present issue, that: 

(Footnote Continued) 

p. 4579 
Mr. W. N. Kirby - Page 8 (JM-915) 

Finally, in support of our conclusion that sick leave 

benefits under Education Code section 13.904 may not be 

offset under the provisions of article 8309h, we note the 

general rule that workers' compensation provisions are to be 

construed liberally in favor of claimants. See. e.a., Stott 

v. e s molove r s Insurance Association, 645 S.W.2d 778 

(Tex. 1983). 

(Footnote Continued) 

under no circumstances shall an employee's pension 

benefit be reduced as a result of his injuries or any 

compensation received under the provision of this Act, 

unless such reduction is a result of a pension revision 

passed by majority vote of the affected members of a 

pension system. 

El Paso Countv v. Jeffers, 699 S.W.2d 375 (Tex. App. - 

El Paso 1985, no writ) ruled that payments received pursuant 

to Texas Constitution article III, section 52e could not be 

offset under section 5 because to apply section 5 would be 

tantamount to holding that a constitutional provision could 

be amended by a mere act of the legislature. 

Acts 1987, 70th Leg., ch. 111, 51, subsequently added 

to section 5 the language: 

and any sums paid under Article III, Section 52e, of 

the Texas Constitution, are offset against the 

week-to-week benefits otherwise payable under this Act. 

In light of Jeffers, it would appear that this provision can 

be read as constitutional only if it is deemed to provide 

that workers' compensation benefits received under article 

830911 are to be reduced to the extent that benefits are 

received under article III, section 52e. The offset 

provision of section 5 has been read generally to provide 

that it is the other sums received for work-related 

incapacity that are to be reduced to the extent workers' 

compensation benefits are received under article 8309h. See 

generally the discussion as to which benefits offset which, 

in Anaelina County at 884. 

p. 4580 
Mr. W. N. Kirby - Page 9 (JR-915) 

SUMMARY 

The offset provision of V.T.C.S. article 

8309h, section 5 does not apply to sick leave 

benefits received pursuant to Education Code 

section 13.904. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 4581