June 6, 1988

Mr. W.N. Kirby Commissioner of Education Texas Education Agency 1701North 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 benefitspaid pursuant to section 13.904 of the Texas Education Code (RQ-1226)
DearMr. 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 inyour request that this question has arisen inconnection with a situation inthe Edinburg Independent School District:

During the 1985-86 school year, a teacher was injured by an assault towhich 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 toArticle 8309h,V.T.C.S. The district's local policy provides for offset 

### of the amounts paid under t;: district's sick leave andworker compensation programs.
You supplied with your request acopy of the district's workers' compensation policy which was adopted on February 14, 1984, andwhich provides inpertinent part:

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The District may offset an employee's wages paid under the adopted sick leave program against anybenefits 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 ofmoney by which thewage is offset. Art. 830911, Sec. 5,V.A.T.S.
V.T.C.S. article 8309h mandates the provision of workers' compensation insurance foremployees of political subdivisions. A school district isapolitical subdivision forpurposes of the article. Id. §l(l). Section 5(a) of article 8309h provides inpart:

The compensation herein provided for shall be paid fromweek 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 towork because of iniurv on the iob that is also covered by this Act areherebv 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 thisAct. (Emphasis added.)
The underscored language was added byActs 1975, 64th Leg., ch. 404, and took effect June 19, 1975.
The central question here is whether sick leave benefits received by ateacher pursuant to Education Code section 13.904 are, inthe words of section 5, article 8309h, "sums for incapacity received in accordance with

. . .any other statutes now in force and effect that provide forpayment for incapacity towork because of injury on the job that is also covered by [article 8309h]. . . .'I If the sickbenefits inquestion are such asums" they are to be "offset as against thebenefits provided under [article

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8309h] to the extent applicable." Education Code section 13.904 provides inpertinent part:

(a)A state minimum sick leave pr;zi;z consisting of fivedays per year sick with no limit onaccumulation 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 thisminimum.

. . . . (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 thebasis 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)adeath in the teacher's immediate family.

. . . . (f)Inaddition to all other days of leave provided by this section orby the school district, ateacher oranother professional employee of a school district who is physically assaulted during the performance ofhis regular duties is entitled to the number of days of leave necessary to recuperate from allphysical injuries sustained as aresult 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, butmay notbededucted **from** accrued sick leave. The period provided in this subsection shall not extendmore than two years beyond thedate ofthe assault.

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Section 13.904 provides for three different kinds of sick leave benefits: stateminimum sick leave (fivedays per year);additional sick leave as may beprovided by a local school district; andwhat wewill 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 byActs 1983, 68th Leg., ch. 334, and took effect on September 1, 1983pursuant to section 3 of that act. Itwas therefore not "in force and effect" when the offset provision of section 5(a) of article 8309h was enacted and took effect in 1975 (seesunra, p. 3). Therefore, inthat theywere not provided forby 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 ineffect since 1969 (Acts1969, 61st Leg., ch. 874) andwere thus "in force and effect" when the offset provision of article 8309hwas enacted in 1975. The next issue for consideration isthenwhether the provision of section 13.904(a) with respect to state and local sick leave benefits is, inthe language of article 830911,section 5,a statute that "provide[s] forpayment for incapacity to work because of injury on the job that isalso 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 forbenefits which are tobe offset, or against which workers' compensation benefits are to be offset: V.T.C.S. article 1269mand Texas Constitition article III, -,

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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 forpayment for incapacity to work because of injury onthe job."
Thepertinent provisions ofarticle 1269m (codified in 1987 as section 143.0452(a) and (b),Local Government Code) were found in section 26of that article andhave been "in force and effect," and substantially unchanged, since before the enactment of the offset provision of section 5 of article 830911in 1975:

Permanent and temporary employees in the classified service shall be allowed a total of sick leavewith fullpay computed upon a **basis** ofone and one-fourth (l?)fullworking days allowed foreach fullmonth employed in a calendar year so as to total fifteen (15) working days to an employee's credit each twelve (12)months. Employees shallbe allowed to accumulate fifteen (15)working days of sick leave with pay inone (1)calendar year. Sick leave with paymay 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 inoerfonnance 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 inLocal Government Code, section 143.045(b) as follows: "Ifan ill fire fighter or police officer exhausts the sick leave and can conclusively prove

1. &g the discussion in footnote 3of this opinion regarding the holding of El Paso Countv v. Jeffers, 699 S.W.2d 375 (Tex.App. -El Paso 1985, nowrit) with respect to article III, section 52e, and the legislative action taken subsequent to that decision.

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that the illness was incurred intheperformance of duties, an extension of **sick** leave shall be granted.") Similarly, article III, section 52e of the Texas Constitution was adopted in 1967, andprovides in pertinent part:
Each county in the State of Texas is

hereby authorized to pay all medical expenses, alldoctor bills and all hospital bills for Sheriffs, Deputy Sheriffs, Constables, Deputy Constables and other county andprecinct 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 26ofarticle 1269m (nowLocal 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.

Inour 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 thewords "any other statutes . . .that provide for payment for incapacity towork 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 towork 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 ina statute general words follow adesignation ofparticular subjects . . .themeaning of the general words will be restricted by the particular (Footnote Continued) -

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The provisions ofEducation 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'incapacityto work because of injury on the job" and thus payments received under section 13.904 are not subject to offset under section 5of article 8309h. This conclusion isreinforced by the ruling inAttorney General Opinion JM-447 (1986) that sick leave benefits granted to county officials and employees under former article 3912kwere not subject to offset under section 5 of article 8309h. Article 3912kmade no specific provisions forpayment for incapacity towork 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 andprecinct officials and employees who arepaid wholly from county funds. . . . JM-447 isthe only opinion of this office dealing with the scope of the offset provisions of section 5of article 830911.3

(Footnote Continued) designation in such statute." Farmers' &Mechanics' Nat. Bankv. 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 5operated prospectively and could notbe applied to offset benefits received under article 1269mwhere the injury inquestion had occurred prior to the adoption of section 5. Anaelina Countv v. Modisette, 667 S.W.2d 881 (Tex.App.

-Beaumont 1984, nowrit) dealt with pension benefits and theholding there turned ona reading of the proviso of section 5, not quoted abovebecause not relevant to the present issue, that: (Footnote Continued)

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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 tobe construed liberally in favor of claimants. See. e.a., Stott v. e s molove s r Insurance Association, 645 S.W.2d 778 (Tex.1983).

(Footnote Continued)
under no circumstances shall an employee's pension benefit be reduced asa result ofhis injuries or any compensation received under the provision of this Act, unless such reduction isa result of apension revision passed bymajority vote of the affected members of a pension system.
El Paso Countv v. Jeffers, 699 S.W.2d 375 (Tex.App. - El Paso 1985, nowrit) ruled that payments received pursuant to Texas Constitution article III, section 52e could not be offset under section 5because to apply section 5would be tantamount toholding that aconstitutional provision could be amended by amere act of the legislature.
Acts 1987, 70th Leg., ch. 111, 51, subsequently added to section 5the 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 ofJeffers, itwould appear that this provision can be read as constitutional only if it isdeemed to provide thatworkers' compensation benefits received under article 830911are tobe reduced to the extent that benefits are received under article III, section 52e. The offset provision of section 5has been read generally to provide that it is the other sums received for work-related incapacity that are tobe reduced to the extent workers' compensation benefits are received under article 8309h. See generally the discussion astowhich benefits offset which, inAnaelina County at 884.

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SUMMARY
The offset provision ofV.T.C.S. article 8309h, section 5does not apply to sick leave benefits received pursuant toEducation Code section 13.904.

JIM MATTOX Attorney General of Texas

MARY KELLER **First** Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared byWilliam Walker Assistant Attorney General

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