3 

3132 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Hon. Julian Montgomery 

state Elghvay mg1neer 

Au&An, Texas 

Dear Sir: 

,,/ : 

following inquiry request 

oonoernlng the clas.ala of 

surrountiag the 

mpartlwnt have 

have any fknda availneilta to the above 

mllllarlg situated?" 

qwrt aa primarily conoerning the 

oed upon Artlole 66748, Vernon's 

e8, 98 to vkether it8 provleAon6 Inure 

oyeea of the department stutainlng Injuries 

date of Lnmranoe, fixed ~,aooordanoe 

Tke only authority of 

Department to pay benefita under the prorknum~s Compemation Lau applloable to the 

&ate Highvap Departmmt Is to be found under the p~~vislona 

of the Act itself. 

You partioularly refer to the claim8 of two former 

employeee, W. E. fforham and W. V. Quthrie, vho allege to hrve 

bebn injwed on the dates of Iheember 7 and fhtober 27~ X93, 

reerpeotlv%ly. Aa these dates Bee prior to JpnUrry 1, 1938, gOw 

~l~ion of tb tam "or any other olatainrmte siarilarly S~tuHM" 
Eon. Julian Montgomery, Page 2 

Ia to be lnterpretsd as referring to mmber8 of a ala88 Of 

enployee8 distinguIshed from othera by reason of their sui)- 

tainlng some character of inJury prior to January 1, 1938. 

By the term "subsequent acts of the Legi8lature" you 

no doubt refer to Eouse Bill l&7 and House Bill 1051, Aots of 

193, 46th Leglsl8ture. We have fully dlwuwad these bill.8 

in a brief filed vlth the Industrial Aaaldent B0axv3, aopiea of 

rhiah vere furnluhed to your Imsuranae Dlreotor, Hr. g. 1. 

Boor, and to the attorzmyei hmdllngthe cwh~mdtkthrie 

in oitid, 

We deem It umeoess8ry to revlev the euthorltle8 thereunder which ve coni?luded that rueh bills vere uneopatltutlonal and vold. The contention is made, though ve do 

not share such view, that these bill8 Inure to ths benafit of 

gl~ployees of this alass other than &wham and Outhrie n&mad 

therein. 3t cart be 88stlaned, hovever, that other employee8 of 

the cl&ma are "sI~Llarly situated,* a8 ths path of aeaurlng 

leglslatlon sImil8r to the above mentioned Home Bills remain8 

open to otheraS nuking It highly probable for maah other 

employees to become *almilarly altuated." 

We acrll your attention to the tsat that thl8 depmtsent 1s representing the Elghvay Department in aepaxate suit8 

filed, tvo emh by W. lc. Qorhaa and W. V. Quthrie, nov pending 

3.n the Dlatrlct Courts of lbLsnnan and e-8 Countlea, respeotively. Our derenws urged in aald malts, vhiah Involve mny 

quwt+cmtt raised, are on record In raid oourt8. Eeedlema to 

uy, the uuwr to the qtzertiona pxmounded in your ImpaIry I8 

,depem&&. upon the queatlon of llabllity under the Act, vhloh 

will be ultl.aBtely pea6ed upon by the UOUrt8. 

Th18 deptwtnwnt bs otmal8tent~ fOllonsd a poliay 

of refualng to render an opinion npon legal que8tion8 involved 

ti 8tit8 pendlng wherein the Court8 VI11 ultmte1y pas8 upon 

same. However, 8lnca your request affeot8 anployee8 of, the 

cl&l8 otherthanthe two e'lsissnt8 QarhamandOuthrle, wherein expre8s our viwa in 8eaordanoe vith tho8e urged in rrid 

wits wherein the fxumtrrtotlom plaaed upon raid Article 66748 

by the State RX&way Coand6sien of Tex- snd the Industrirl 

&aide& Board of Texa8, two aeprate and distlnat odpsinistrrtive agencies, is neaeaaarlly challenged. 

A8 ststed. any authority te p8y benefits unde? the 

provlalana of ArtlolQ 66748, applicable to the State Hilrfnnr 

D8partment, is to be derlwd SYom the Aet ftwlf. Arkiek# 6 6748, 

being Rouse Bill 420, Ad8 1937, 45th bgi8,latUW,.b--- 8 a=, 

effeative June 11, 1937. The follovlng mMieFQ%l prOvISionS Of 

this Aat are to be noted, begIn&ng vith the 08ption of the blllg 
"An Act providing vorlmen~a compensation inmrance 

for employees of thu State Highway DepartPent of Terns; 

detlnlng certain tez?m; authorizing the State Highway 

Department to be aelf-insuring; provldfng that the 

State Highway bpsFtment Shall ad.IUiniSter thl8 Act; . . . 

"Section 1. By v3xtue of the provIalona of Section 59 of Article 111 of the Constitution of the State 

of Texaa granting the Legislature paver to pass such 

lam9 a8 may be necessary to provide for Workmen~s Compensation Insurance for State employeea, as In Its 

@lgment la neceesary or required, and to provida for 

the payment of all costs, charges, and premiums on 

8uCh in8wmx?e, provision 1s made a8 hereinafter set 

forth. 

n . ..~Insurance* shall mean Workmen~8 Compensation Inmranae. . . . 

“sec. 3. After the effective date of this lav 

any employee, as defined In this lav, rho austaIn8 an 

injury in the aourse of his eI&ploJlaent shall be paid 

c6mpensatlon as hereinafter provided. 

"The Department.18 hereby authorized to be selfin&uri"p and la charged vlth the a&ln.lstratIon of this 

The Department shall notify the Board of the effectlvi date of euch inmrance, stating In such notice the 

nature of the vork perfornmd by the employees of the 

l&partaent, the approximate number of employees, and 

the estimated amount Of pay ~011. 

"The Department shall give notloe to all employees 

that, effective at the time atatsd In such notice, the 

Departrsnt has provided for paymnt of inSUranCe. mloyee8 of the Department shall be aoncluslvely deemed to 

have accepted the proplslona hereof In lieu of oorimon 

law or statutory cause8 of action* If any, for injuries 

resulting In the course of their employment." 

Fursuant to the authorization contained in 8aid hv, 

Section 3, aupra, the State Highway Department gave written 

Mtlce to the Industrial Accident Board that on January 1, 1938, 

at 12~01 O'clock A.R., insurance vaa in effect. 

The Act being complete vithin itself, becoting a ltrv as 

~Orescrld, by its Own term left it8 operation suapended until 

8UCh time as the State Highway DepartIBent could set up it8 
Eon. Julian Montgomery, Page 4 

~uranae dlvlalon and perform all other conditions, and establish 

p&m and regulations necesrary for providing insurance and paying benefits thereunder. The State Highway Department having 

been granted suoh pover and authority, it is evident that until 

8ah insurance vas provided and the departmnt becure self-insuring, 

no liability van Imposed upon the Bighvay Department to pay benefits to its employees Injured prior to the eifectlve date OS 

such Insurance. 

It is settled by many deolaiona that there is no room 

Sor construction vhen a lhv Is expreaaed In plain and unambiguous 

language and it8 meaning Is clear and obvious. In such a oaae, 

*Q lav vi11 be applied and enforced a8 it reads, regardless OS 

its polioy or mpose, 

E 

or the justice of its effect. 39 Tax. Jur. 

pua?a.a8,p.l1. 

The notice given by the HIghmy D8partmmt to the 

&du8tolal Acaldent Board, providing Insurance effective January 

1, 1938, 12801 A.H., la to be read a part of 8aid Aot. There 

oan be no Implied legal obllgatlon on the part of the State 

Highway Departwnt to extend benefits to those employees injured 

pdor to January 1,1938. We are mindful that injured vorkmn 

had no aomon lav or rtatutorg cause of action agalnet the 

State graving out of injuries austrined prior to Me extending 

of benefits under this law. "Employee" and “aubac*lbd go 

handlnhw4d. It Is not believed that the Leglsl.atun, in 

vesting the State Elghuay Department vlth authority to adminleter the Act and provide ipsurance , overlooked the contemporanQOW construction plaoed on the procedural steps ordInarlly 

taken and the accepted meanLng of the term8 "employee" and "eubaa~ibe~~ as used in the general Workmen*s Compensation Lava, a 

rmoessuy requisite to the creation of such statutory llabillty. 

As eaid In Southveatern Surety Insurance Co. Y. Curtis 

et al, 200 S.W. 1162 (vrit refused), "The i8suance of the contract, Solloved by the injury, created the llabblllty, . ..' 

Eplgloyeea of the departme& did not automatically beaome "employees" vlthln ,the plain meaning and Intent of the Act. They 

had no vested right ln the funds created until such tlw a8 l otual 

notice, as provided in Section 3; supra, vaa given by the Departwnt . 

It is presumed that the paver and authority granted 

to the State Highvay Department to become aelf-lnsurfng, being 

Co-extensive vlth that authorlrlng the employment of competent 

clerks, bookkeepers, office help in general, obtain printing 
s 

aontrQct% pnd suppllea, and to exercise their judgment In the 

aattlng up of rules Qnd regulations, looking to the creation 

of a new system neceatmry for providing benefits under the 

Act, 18 judlclously exercised, all of vhlah vaa a necessary prerequisite to pattIng such lnaurance in Soroe md calling said 

Aat intO OpWatiOn. 

"It 18 the general rule that vhere an act 1s 

clothed vlth all the forma of lav and is complete 

In and of itself, it Is Srirly vlthln the scope of 

the lQglalQtive paver to prescribe that it ah011 

become operrtlve only on the hrppenIng of nom apeolfled contingency, oontlngenalea, or auoaeaalon of 

contFngencle3. Such a statute lies dormant until 

oalled into aatlve tome by the eriatenae of the 

conditiona on vhieh it 1% intended to operQt6.' 

16 C. J. S. para. 141, p. 415. 

We therefore reapeotfully Qdviae yau that It Is the 

opinion of this department that the Highway Dapartment la not 

authorlmd to pay benefit8 from the instmmoe fnnd set rald~ 

under Article 66746, Vernon's Annotated Civil 8tatutea to 

smployeea injured prior to Januhrg 1, 19%. Erring wered 

your fIr8t question in the negative, It Is unnecessary to 

answer the second question propounded. 

Your8 very truly 

BY 

Wrpbp