DAN MORALES

ATTORVEI GENERAL 

## Office of the Bttornep

&ate of aexas August 12,1993 

## @enera

Arnold W. Oliver,P.E. Executive Director OpinionNo. DM-24 1 Texas Department of Transportation 125East 1

lth street Austin, Texas 78701-2483 Honorable JamesE. (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 subdivisionof this w includinga 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 subcontractorto the governmentalentity. 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. 1244Arnold 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 ’ Pcomoteadded.] A brief submitted in wwection with your rquests argues that a provision of article 91lb. V.T.C.S.. an act perminiq generallyto 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 accidentalinsmwce WVU@CiIlUl amount fixed by the [Railroad] Commissionhm a reliable insumnw company or companies authorized to write such policies in this state approved by tbe [Railroad] Commission. The language regsrding “accidentslinsurance 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 91lb 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-employeeor 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. 1245Arnold 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 “independentcontractor” by setting out tather standard legal elements of the independent wntractor relationship. With regard to transportation workers, subpart (a)(4) definesan “owneroperator” 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 “generalwntractors” 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” themselveswhen they are in fact “employedon 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 responsiblefor providing wverage. Jf he is an *independent wntractor,” he himself is ultimatelyresponsible.2 Since we conclude that workers ’compensationwverage is mquired, we need not address the part of your question which asks whether TxDOT hss discretionary authority to reguire truckers haulingmaterials 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. 1246Arnold 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

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