DAN MORALES

‘ .4rrORNEY GENERAL 

## QBffice

of tty Bttornep &dateof Qexas March 31.1993 

## Qheral

Honorable JamesW. Carr LfivacaCounty Attorney Box 576, SecondFloor Courthouse HallettsviUe,

Texas 7796d

DedrMr.cflr Opinion No. DM-213 Re: whether a wmmissioners court may limit the number of monthly supplemental workcrr’ compensation payments to county employees already receiving such payments @Q-23 1)

You inform us that in 1986.the Commissioners Court of Lavaca County adopted an order authorizing supplementalcompeasation for au disabled county employees. The order provided that during the period of the employee’ stotal disability the employee would receive payments which, when combmed with standard workers’ compensation herds, would equal the employee’ sregular salary. In 1991. the commissioners court adopted an order that limited the amount of such supplementalpayments to ten monthly -s. You state that two county employeeswere injured in 1988 and 1990, respecdveiy, and were granted supplementalhenefitspursuant to the 1986 order. You ask whether the ~mmissioners court may, on the hasis of the 1991 order, limit the mtmber of supplementalpayments to these employees. ’ We con&de that the wmmissiollers courl was not autholixed to limit the mmlber of supplemaltf4 payments made to these anplOY= The injuriesto the employeesin question occurred prior to the &ctive date of the Texas Workers’CompensationAct of 1989. Acts 1989,7&t Leg., 2d C.S.. ch. 1. That act states that, with the exception of a few provisions not relevant here, the act takes &ctonJanuuyl, 1991,andthatthechangeinthelawmadebytheactappliesonlyto injurieswhich occur on or after this date. Id. 5 17.18(a), **(c),** at 122. The Texas Workers’ Compensation Commissionis directed to process claims for injuries occurring before the

**p. 1128** Honorable James W. Carr - Page 2 (DM-213)

e!Tective date in accordance with the law in effect on the date the injury owurred.2 Id. 3 17.18(d), at 122. We therefore limit tbis opinion to situations involvingthe payment of supplemental compensation in conjunction with the payment of workers’ compensation benef3s under the former workers’wmpensation laws. Counties are authorixed to provide workers’ wmpenmtion insurance for county anp~oyees under article IU, section 60 of the Texas Comtitution. Tbis office has previously determined that political subdivisions were not rewired to carry workers’ compensation coverage under the laws in effect prior to the effective date of the Texas Workers’ Compenmtion Act of 1989. Attorney General Opiion H-338 (1974)s Also, while the worked wmpensation laws in effectprior to 1991 did not speciScaUy rewire or authoriz wwties to pay injured employees supplemental workers’ wmpensation bendits, Attorney General Opiion Jh%447 (1986) concluded that a wunty could provide such benefits on a prospective basis as an element of county employees’ wmpensation. Accordingly, with respect to employees &red prior to 1991. the commissioners court was authorized to provide supplemental wmpensation on a prospective baais pumant to its authority to set the wmpensation of county employees. Local Gov? Code 5 152.011; see Attomey General Opiion Jh4447 at 34. So long as no vested right is impaired, and in the absence of a wnstitutionaJ or statutory prohibitiou the power to set salary and compensation obviously inchtdes the authority to increase or reduce wmpensation. See Ci@ ofLkdhs v.Trammeli, 101 S.W.2d 1009 (Ta. 1937); Attorney General Opiion JM-910 (1988). This does not, however, mean the Lavaca County Commissioners Court newsady was Itee to limit the amount of supplemental wmpensation payable to employees injuredprior to the adoption of the second order reducing these. beneftts. The case of DeHqvos v. Cig of Beeville, 742 S.W.Zd 735 (Tex. App.-Corpus Christi 1987. writ denied), ilhtstrates this point. The case wncerned a city’ s attempt to temtinate supplemental benefits paid by the city to an injured employee who wncurrently was receiving workers’ compensation bet&s for the injury. The supplementalbenefits were

%tkIc 8309h. V.T.C.S., amotly mqoirca politicalsoWvisions

of the me (tncludtng calmtie)toprovide

such awerage either by self-ioaoling,

plrchasine inswane,or amtmcting

with other acIf-insorus. See V.T.C.S. art. 83094 08 l(l), 2(a); A~toracy General Opiion DM-180 (1992).

‘In amtmst, the 1989 wmkc~* compmdon legislation qwificdy authoke political mbdividoos to plovidc two kinds of suppkmcnIal tenetits to injurea employees racivin8 worn’ compsaioo Lmcflts. See V.T.C.S. arts. 8308d.W. 83094 p§ 3(a)(4), S(c). .

p. 1129HonorableJames W. Can - Page 3 @4-213)

paid pursuant to a provision in the city personnel manual that stated that an injured employee would receive, during the period of time provided for under workers’ wmpensation insuranw, compensationin an amount reflectingthe ditTere.nce bchvew the employee’ sregular rate of pay and the amount of workers’ wmpensation beneSts. The court concludedthat this provision not only created a duty to pay workers’compensation be&its, but also obligated the city to pay the ditTerence between salary and bet&s for the period the employeewas legallyentitledto workers’compensationbeneftts. Althoughthe court in LW@os did not explicitlycouch its holding in these terms, it appears to have determinedthat the personnelmanual wnstituted a part of the contract of employmentwhich could not unilaterallybe changed by the employer subsequent to a wmpensabte injury. An employee injured during the e&ctive period of the policy, therefore, could claima vested right to the benefitspromisedby policy. The city would be prohibitedfrom impairing this right by unilaterallylimitingor eliminating these benefits. The term of the 1986 order granting supplemental benefits to employees of Lavaca County authorized supplementalpayments “duringthe period of total disabiity.” Because the payment of supplemental benefitspursuant to the order is conditioned on the receipt of workers’compensationbenefitsby an injured employee,we assume that “period of total disabii cotresponds to the period during which an injured employee receives workers’wmpensation benefits. Accordingly,we believe, on the strength of the DeHoyos case and the terms of the wmmissioners court’ s order, that the Lavaca County Commissioners Court was prohibited from limiting or reducing the amount of supplementalbenefitspaid to the two individuals describedin your request letter. SUMMARY The Commissioners

Court of Lavaca County may not reduce the number or amount of supplementalwmpensation payments made to a county employee injured prior to January 1. 1991, pursuant to a policy that obligates the wunty to pay, for the period the employee mccives worked wmpensation benefits, the difference between workers’ compensationbenefits and the employee’ s regular wages or &arY.

DAN MORALES Attorney General of Texas

p. 1130Honorable James W. Cur - Page 4 (DM-213)

WILL. PRYOR Fbst Assistant Attorney General MARYKELLER Deputy Attorney Generalfor Litigation RENEAHICKS State Solicitor MADELEINEB. JOHNSON Chair, Opinionhmittcc Pmpared by Steve Amgh -AttorneyGenaal

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