DAN MORALES 

ATTORVEI GENERAL 

Office of the Bttornep 

&ate of aexas 

August 12,1993 

@enera 

Arnold W. Oliver, P.E. 

Executive Director 

Opinion No. DM-24 1 

Texas Department of Transportation 

125 East 1 lth street 

Austin, Texas 78701-2483 

Honorable James E. (Jim) Nugent 

commissioner 

Railroad Commission of Texas 

P.O. Box 12967 

Austin, Texas 7871 l-2967 

Re: whether truckers hauling materials on 

and onto Texas Department of Transportation wnstruction sites are required to 

he covered by worked wmpensation 

illmance (RQ-471) 

Dear Mr. Oliver and Commissioner Nugent: 

You each ask whether the Texas Department of Transportation (“TxDOT”) may, 

or must, require that truckers hauling materials to and onto TxDOT construction sites 

carry workers’ wmpensation insurance. 

Article 8308-3.23. V.T.C.S., a provision of the Texas Workers’ Cnmpen&on 

Act, provides in part: 

(c)Inabuildingorwnstrwtion*wntractenteredintobytbis 

state or a political subdivision of this w including a municipality~ 

thegovemmentalwtityshallrequirethewntractortocatifyin 

writing that the contractor provides workers’ wmpewation iwuranw 

coverage for all employees of the wntractor employed on the public 

project. A subwntractor on the project must provide aucb a 

certiiicate to the general contractor relating to the coverage of the 

employees of the subwntractor. The general w&actor shall 

provide the certificate of a subcontractor to the governmental entity. 

A contractor who has a contract that rewires workers’ wmpenmtion 

‘Subsution (d) of micle 8308-3.23. V.T.C.8, &lines %dldiq or commaion- to iaclode 

“ela4ingorprqbngloaeclrtnrcturcq including tnlildings, bridges, rodway& poblic utility facilities, 

mrclwdrpputcnanm’;“lanodcling.~rrpeiring,ardcmolirhinga~~;or’othrwirc 

irnpwiqmlpmpcttyorapputcnanccr to teal plopcny thlwgh similar activities.” we asaonx for 

prrgaasofthisopinioatbMthcTxDoTprojMsyourefntoconsti~e”buildingor~~“within 

the meaning ofarticle 8308-3.23, V.T.C.S. 

p. 1244 
Arnold W. Oliver, P.E. - Page 2 

Honorable James E. (rim) Nugem 

(DM-24 1) 

insurance coverage may provide the coverage through a group plan 

or other method satisfactory to the governing body of the 

governmental entity. j’Pcomote added.] 

A brief submitted in wwection with your rquests argues that a provision of 

article 91 lb. V.T.C.S.. an act perminiq generally to motor carriers, allows motor carriers, 

even when employed on public projects within the rntig of V.T.C.S. article 8308-3.23. 

the option of protiding “accidents) insurance coverage” in lieu of the “workers’ 

wmpelmtioninsumnw coverage” requbtd by the latter provision. Section 13 of article 

911bprovidesinpatt: 

Jz.ach motor canier shall also protect his employees by obtain& 

worked wmpensation insumnw coverage as de6ned under the 

Texas Workers’ Compensation Act (Article 8308-1.01 ef. seq., 

Vernon’s Texas Civil Stamtcs) or accidental insmwce WVU@CiIlUl 

amount fixed by the [Railroad] Commission hm a reliable insumnw 

company or companies authorized to write such policies in this state 

approved by tbe [Railroad] Commission. 

The language regsrding “accidentsl insurance coverage” was added to section 13 in 1991. 

Acts 1991,72d Leg., ch. 894,g 1. at 306041. 

The above-mentioned brief contends that the provisions of atticle 911~which 

allow motor carriers the option of providing either workers’ wmpensation or “accidental 

insumnw” wverage-should. being specific to motor carriers, and moreover the more 

recent@ enacted, be wnstrue-d to prevail over the provisions of article 8308-3.23. which 

are gewraUy applicable to public works building and wnstruction wntractors. We 

disagree. While the legislature has seen fit to provide in article 91 lb that motor carriers 

genera& may opt to carry either workers wmpensation or “accidental insurance” 

coverage, we do not believe that provision was intended to preclude application of more 

stringent statutory requirements regarding insurance to motor carriers in particular 

contexts. In our opinion, the legislature has indicated an intent in article 8308-3.23 that all 

wntract workers on the public works projects wvered by the article have workers’ 

wmpensation coverage. 

Thebriefaloostatesthat’motorcarriaoinmost,ifnotall,csseswillbew 

independent wntractor as defined in article 8308-3.05(a)(l).” and suggests that “motor 

carriers defhmd as independent contractors do not have to provide workers’ wmpensation 

insurance coverage normally required under article 8308-3.23.” 

In our view, the purpose of article 8308-3.05 is generally to charadaize 

employment relations as being ones of either employer-employee or employer4tdepwdent 

contractor. These diiinctions are important since employers have various duties to 

“employees” under the workers’ compensation act that they do not have when the 

p. 1245 
Arnold W. Oliver, P.E. - Page 3 

Honorable James E. (Jii) Nugent 

(DM-241) 

employment relation is one of employer-genera) contractor. See, e.g., V.T.C.S. arts. 

8308-3.08 (employee election), 8308-3.24 (notice to employees whether wvered), 

83084.01 (recovery by employee). Subpart (a)(l) of article 8308-3.05. to which the brief 

rde-rs, defines “independent contractor” by setting out tather standard legal elements of 

the independent wntractor relationship. With regard to transportation workers, subpart 

(a)(4) defines an “owner operator” as “a person who provides trwsportation setvices for a 

motor carrier under wntract,” and provides that “[a]n owner operator is an independent 

wntractor.” 

Contrary to the suggestion in the brief, we do not believe that article 8308-3.05 

creates any exceptions to the workers’ compensation wverage requirements of article 

8308-3.23. J.n our view, in requiting “general wntractors” and “sub-wnt.ractom” to show 

proof of coverage for those who will work on the project, the legislature intended to 

include all wntract workers under the wverage rquirement including the “wntractors” or 

“sub-wntractors” themselves when they are in fact “employed on the public project.” Id. 

art. 8308-3.23. While chsractexiaation of a particular worker, based on the provisions of 

article 8308-3.05. as an “independent wntractor” rather than fan “employee” may 

determine who is responsible for providing workers’ compensation wverage for the 

worker under article 8308-3.23. it does not, in our opinion, relieve anyone from the 

coverage requirement includmg the “wntractors” or “subwmractors” themselves when 

they are in fact “employed on the public project.” If the worker is an “employee,” his 

employer is responsible for providing wverage. Jf he is an *independent wntractor,” he 

himself is ultimately responsible.2 

Since we conclude that workers’ compensation wverage is mquired, we need not 

address the part of your question which asks whether TxDOT hss discretionary authority 

to reguire truckers hauling materials on TxDOT projects to carry workers’ wmpwsation 

insumnw. 

%ee,e.g.,id. art.8308-3.05(g)(“motorauric~ md’ownerop~ralO~ maya~chtformerarill 

pluvidecovaage for bltm). 

p. 1246 
Arnold W. Olivex, P.E. - Page 4 

Honorable James E. (Jii) Nugent 

(DM-241) 

SUMMARY 

Ttuckers hauling materials on and onto Texas Department of 

Transportation cons&a&on sites an required, under tick 

8308-3.23, V.T.C.S., to be covered by workers’ compensation 

insuranw. 

WILL PRYOR 

PiiAssismmAtmmeyoeneral 

MARYKELLER 

Deputy Attomey Cienexal for Litigation 

RENEAHIcRs 

state solicitor 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Preparedbywilliamwalker 

Assistant Attorney Oerural 

DAN MORALES 

Attorney General of Texas 

p. 1247 

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