3 3132

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Hon. Julian Montgomery state Elghvay mg1neer Au&An, Texas

Dear Sir: ,,/ :

following inquiry request oonoernlngthe clas.ala of surrountiagthe

mpartlwnt have

have any fknda availneilta to the above mllllarlg situated?"
qwrt aa primarily conoerningthe 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** Departmentto 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 enployee8distinguIshedfrom 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 AaaldentB0axv3,

aopiea of rhiah vere furnluhed to your ImsuranaeDlreotor,Hr. g. 1. Boor, and to the attorzmyei hmdllngthe cwh~mdtkthrie
in oitid,

We deem It umeoess8ry to revlev the euthorltle8thereunder which ve coni?luded that rueh bills vere uneopatltutlonal

and vold. The contentionis 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~Llarlysituated,*a8 ths path of aeaurlng leglslatlonsImil8r to the **above** mentionedHome Bills remain8 open to otheraSnuking It highly probable for maah other employeesto become *almilarlyaltuated."

**We** acrll

your attention to the tsat that thl8 depmtsent 1s representingthe Elghvay Departmentin 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 Involvemny quwt+cmttraised, are on record In raid oourt8. Eeedlema to uy, the uuwr to the qtzertiona pxmounded in your ImpaIry I8 ,depem&&.upon the queatlon of llabllityunder the Act, vhloh will be ultl.aBtely pea6ed upon by the UOUrt8.
Th18 deptwtnwntbs otmal8tent~ fOllonsda poliay of refualng to render an opinion npon legal que8tion8involved 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 8eaordanoevith 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 neaeaaarllychallenged.

**A8** ststed. any authority te p8y benefitsunde? the provlalanaof ArtlolQ 66748, applicable to the State Hilrfnnr D8partment,is to be **derlwd** SYom the **Aet** ftwlf. Arkiek# 66748, being Rouse Bill 420, Ad8 1937, 45th bgi8,latUW,.b--- 8 a=, effeativeJune 11, 1937. The follovlngmMieFQ%lprOvISionSOf this Aat are to be noted, begIn&ng vith the 08ption of the blllg"An Act providingvorlmen~a compensationinmrance

for employeesof thu State Highway DepartPentof Terns; detlnlng certain tez?m; authorizingthe State Highway Departmentto **be** aelf-insuring; provldfng that the State Highway bpsFtment Shall ad.IUiniSter thl8 Act;

. .. "Section 1. By v3xtue of the provIalonaof Section 59 of Article 111 of the Constitutionof the State of Texaa granting the Legislature paver to pass such lam9 a8 may be necessary to provide for Workmen~s CompensationInsurancefor 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 hereinafterset forth.

n

. ..~Insurance*

shall mean Workmen~8 Compensation Inmranae.

. . .

**“ sec.**  **3.** After the effectivedate of this lav any employee,as defined In this lav, rho austaIn8an injury in the aourse of his eI&ploJlaent shall be paid c6mpensatlon

as hereinafter

provided.

"The Department.18 hereby authorized to be selfin&uri"pand la chargedvlth the a&ln.lstratIon of this The Departmentshall notify the Board of the effectlvi date of euch inmrance, stating In such notice the nature of the vork perfornmdby the employees of the l&partaent,the approximatenumber of employees,and the estimatedamount Of pay ~011.

"The Departmentshall give notloe to all employees that, effectiveat the time atatsd In such notice, the Departrsnthas provided for paymnt of inSUranCe. mloyee8 of the Department shall be aoncluslvely deemed to have accepted the proplslonahereof In lieu of oorimon law or statutorycause8 of action* If any, for injuries resultingIn the course of their employment."

Fursuant to the authorizationcontained in 8aid hv, Section**3,** aupra, the State Highway Departmentgave written Mtlce to the Industrial Accident Board that on January 1, 1938, at 12~01 O'clockA.R., insurancevaa in effect.

The Act being completevithin itself,becoting a ltrv as ~Orescrld,

**by** its Own term left it8 operation suapendeduntil 8UCh time as the State Highway DepartIBent could set up it8Eon. Julian Montgomery,Page 4

~uranae dlvlalon and perform all other conditions, and establish p&m and regulations necesrary **for** providing insuranceand paying benefits thereunder. The State Highway Departmenthaving been granted suoh pover and authority, it is evident that until 8ah insurancevas providedand the departmnt becure self-insuring,
no liabilityvan Imposed upon the Bighvay Department to pay benefits to its employees Injuredprior to the eifectlvedate 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 languageand it8 meaning Is clear and obvious. In such a oaae, *Q lav vi11 be applied and enforced a8 it reads, regardlessOS 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 effectiveJanuary 1, 1938, 12801A.H., la to be read a part of 8aid Aot. There
oan be no Implied legal obllgatlonon 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 rtatutorgcause of action agalnet the State graving out of injuries austrinedprior 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 Departmentvlth authority to adminleter the Act and provide ipsurance , overlookedthe contemporanQOWconstruction

plaoed on the procedural steps ordInarlly taken and the acceptedmeanLng of the term8 "employee" and "eubaa~ibe~~ as used in the generalWorkmen*s Compensation**Lava,** a rmoessuy requisite to the creation of such statutory llabillty.

As eaid In SouthveaternSurety InsuranceCo. Y. Curtis et al, 200 S.W. 1162 (vrit refused), "The i8suance of the contract,Sollovedby 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 authorlrlngthe employment of competent clerks,bookkeepers, office help in general, obtain printing

# s

aontrQct%pnd suppllea,and to exercise their judgmentIn the aattlngup of rules Qnd regulations,looking to the creation of a new system neceatmry for providingbenefits under the Act, 18 judlclously exercised,all of vhlah vaa a necessaryprerequisiteto pattIng such lnaurance in Soroe md calling said Aat intO OpWatiOn.

"It 18 the general rule that vhere an act 1s clothedvlth 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 operrtlveonly on the hrppenIng of nom apeolfled contingency, oontlngenalea, **or** auoaeaalonof contFngencle3. Such **a** statute lies dormant until oalled into aatlve tome by the eriatenae of the conditionaon vhieh it 1% intended to operQt6.' 16 C. J. S. para. 141, p. 415.

**We** thereforereapeotfully Qdviae yau that It Is the opinion of this departmentthat the Highway Dapartmentla not authorlmd to pay benefit8 from the instmmoe fnnd set rald~ **under** Article **66746,** Vernon'sAnnotated Civil 8tatutea to smployeeainjured prior to **Januhrg** 1, 19%. Erring wered your fIr8t question in the negative, It **Is unnecessary**  to
**answer** the second questionpropounded.

Your8 **very** truly

**BY**

Wrpbp