                        June 6, 1988




Mr. W. N. Kirby               Opinion No.   JM-915
Commissioner of Education
Texas Education Agency        Re: Whether a school district
1701 North Congress Avenue    may offset workers'  compensa-
Austin, Texas 78701-1494      sation benefits under article
                              8309h, V.T.C.S., against bene-
                              fits paid pursuant to section
                              13.904 of the Texas Education
                              Code (RQ-1226)

Dear Mr. Kirby:

     You ask:

           May a school district offset worker   com-
        pensation  benefits    received pursuant   to
        Article 830921 [V.T.C.S.], against sick leave
        benefits paid pursuant to Texas Education
        Code, Section 13.904?

You indicated in your request that this question has arisen
in connection with a situation in the Edinburg   Independent
School District:

           During the 1985-86 school year, a teacher
        was injured by an assault to which the Texas
        Education Code, Section 13.904 may apply.
        The district paid the teacher's salary     for
        the period of time when she was unable to
        work. The teacher also received worker com-
        pensation benefits  for the same period     of
        time pursuant to Article 8309h, V.T.C.S.  The
        district's  local policy provides    for
        offset of    the amounts    paid under    t;:
        district's sick leave and worker compensation
        programs.

     You supplied with your request a copy of the district's
workers' compensation policy which was adopted on February
14, 1984, and which provides in pertinent part:




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Mr. W. N. Kirby - Page 2   (JM-915)




        The District may offset an employee's   wages
        paid under the adopted sick leave program
        against any benefits paid under the Workers'
        Compensation Law. When an employee's wage is
        offset, both the employee and the District
        shall make the normal contribution    to the
        retirement system on the amount of money by
        which the wage is offset. Art. 830911, Sec.
        5, V.A.T.S.

     V.T.C.S.  article 8309h mandates    the provision    of
workers' compensation insurance  for employees of political
subdivisions.  A school district is a political  subdivision
for purposes of the article. Id. §l(l). Section 5(a) of
article 8309h provides in part:

           The compensation herein provided for shall
        be paid from week to week and as it accrues
        and directly to the person entitled thereto,
        unless the liability is redeemed as in such
        cases provided   elsewhere herein.      Provided
        further. however, that anv and all sums for
        incaoacitv   received    *     accordance   with
        ChaDter 325, Acts of tie 50th Leaislature,
        1947. as amended     /Article 1269m. Vernon's
        Texas Civil Statutes). and anv other statutes
        now in force and effect that DrOVide         for
        pavment for incaoacitv to work because        of
        iniurv on the iob that is also covered        by
        this Act are herebv offset as aaainst        the
        benefits   orovided under this Act to the
        extent aoolicable,    and any sums paid under
        Article   III, section 52e, of the         Texas
        Constitution,    are    offset    against    the
        week-to-week benefits otherwise payable under
        this Act.   (Emphasis added.)

The underscored language was added by Acts 1975, 64th      Leg.,
ch. 404, and took effect June 19, 1975.

     The central question here is whether       sick    leave
benefits received by a teacher pursuant   to Education   Code
section 13.904 are, in the words of section 5, article
8309h, "sums for incapacity received    in accordance    with
. . . any other statutes now in force and effect that
provide for payment for incapacity to work because of injury
on the job that is also covered by [article 8309h].    . . .'I
If the sick benefits in question are such asums" they are to
be "offset as against the benefits provided under    [article




                              p. 4574
Mr. W. N. Kirby - page 3    (JM-915)




8309h] to the extent applicable."         Education Code       section
13.904 provides in pertinent part:

            (a) A state minimum sick leave pr;zi;z
        consisting of five days per year sick
        with no limit on accumulation and transfer-
        able among districts shall be provided   for
        every teacher regularly    employed  in  the
        public free schools of Texas. Local school
        districts may provide  additional sick leave
        beyond this minimum.

           .   .   .   .

           (c) Each   district's   local   board   of
        education shall establish a sick leave plan,
        and shall administer the program to assure
        compliance with the intent of the law that
        leave shall be approved only on the basis of:

           (1) an illness of the teacher;

            (2.)an illness   of a         member   of    the
        teacher's immediate family;

           (3) a family emergency: or

           (4) a death     in   the   teacher's    immediate
        family.

           .   .   .   .

            (f) In addition to all other days of leave
        provided by this section or by the school
        district, a teacher or another professional
        employee of     a school    district who    is
        physically assaulted during the performance
        of his regular duties is entitled to the
        number of     days of    leave necessary    to
        recuperate from all physical    injuries sus-
        tained as a result of the assault.    Days of
        leave taken under this subsection shall be
        reported and reimbursed    as sick leave in
        accordance with Subsection       (b) of   this
        section, but may not be deducted from accrued
        sick leave.    The period provided    in this
        subsection shall not extend more than two
        years beyond the date of the assault.




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Mr. W. N. Kirby - Page 4        (JM-915)


                                                                  -,
Section 13.904 provides   for three different  kinds of sick
leave benefits:    state minimum  sick leave  (five days per
year) ; additional sick leave as may be provided by a local
school district; and what we will characterize as "assault
sick leave" under subsection (f).

          I~Assault Sick      Leave"   and Article   8309h.

     The assault sick leave provision,     subdivision (f) of
section 13.904, was added by Acts 1983, 68th Leg., ch. 334,
and took effect on September  1, 1983 pursuant to section    3
of that act.   It was therefore not "in force and effect"
when the offset provision of section 5(a) of article     8309h
was enacted  and took effect in 1975      (see sunra, p. 3).
Therefore, in that they were not provided for by statute "in
force and effect" at the time article 8309h section 5(a) was
enacted and took effect in 1975, assault sick leave benefits
under Education Code section 13.904, subsection (f) may not
be offset under article   830911, section 5(a), against the
workers'  compensation  benefits   provided   for in article
8309h.

       State   and   Local   Sick   Leave   and Article   8309h

     In contrast,   the provisions    of subsection    (a) of
Education Code section 13.904 regarding state minimum     sick
leave benefits, and additional   benefits the local district
may provide, have been in effect since 1969 (Acts 1969, 61st
Leg., ch. 874) and were thus "in force and effect" when the
offset provision of article 8309h was enacted in 1975.     The
next issue for consideration   is then whether the provision
of section 13.904(a) with respect to state and local sick
leave benefits is, in the language of article 830911, section
5, a statute that "provide[s] for payment for incapacity    to
work because of injury on the job that is also covered      by
[article 8309h].11 If so, such state and local sick leave
benefits are to be offset against workers'       compensation
benefits received under article 8309h.      For the reasons
elaborated below, we are of the opinion that state and local
sick leave benefits   under section 13.904(a) may not be
offset under article 830911, section 5.

     Article   8309h, section  5, specifically  cites  two
provisions for benefits which are to be offset, or against
which workers'   compensation benefits are to be offset:
V.T.C.S. article 1269m and Texas Constitition article III,




                                p. 4576
Mr. W. N. Kirby - Page 5   (JM-915)




section 52e.l In our opinion, consideration    of these two
specific provisions cited gives an indication of the scope
of   the   section   5   language   referring   to    "other
statutes . . . that provide  for payment  for incapacity  to
work because of injury on the job."

     The pertinent provisions of article 1269m (codified in
1987 as section 143.0452(a) and (b), Local Government  Code)
were found in section 26 of that article and have been   "in
force and effect," and substantially unchanged, since before
the enactment   of the offset provision   of section   5 of
article 830911 in 1975:

            Permanent and temporary  employees in the
        classified service shall be allowed a total
        of sick leave with full pay computed upon a
        basis  of one and one-fourth (l?) full working
        days allowed for each full month employed    in
        a calendar year so as to total fifteen     (15)
        working days to an employee's     credit each
        twelve (12) months.

           Employees shall be allowed to accumulate
        fifteen (15) working days of sick leave with
        pay in one (1) calendar year.

           Sick leave with pay may be accumulated
        without   limit and may be used while an
        employee is unable to work because of any
        bona fide illness. In the event that the
        said emnlovee can conclusivelv Drove that the
        illness was incurred while in oerfonnance  of
        his duties, an extension   of sick leave in
        case of exhaustion of time shall be aranted.
        (Emphasis added.)

Acts 1957, 55th Leg., ch. 391 at 1175.     (The underscored
language was codified   in Local Government   Code, section
143.045(b) as follows:   "If an ill fire fighter or police
officer exhausts the sick leave and can conclusively  prove




   1. &g the discussion in footnote 3 of this opinion
regarding the holding of El Paso Countv v. Jeffers,     699
S.W.2d 375 (Tex. App. - El Paso 1985, no writ) with respect
to article III, section 52e, and the legislative     action
taken subsequent to that decision.




                             p. 4577
Mr. W. N. Kirby - Page 6    (JM-915)




that the illness was incurred in the performance     of   duties,
an extension of sick leave shall be granted.")

      Similarly, article  III, section   52e of the Texas
Constitution was adopted in 1967, and provides in pertinent
part:

           Each county   in the State of Texas          is
        hereby authorized      to   pay    all    medical
        expenses, all doctor bills and all hospital
        bills   for    Sheriffs,    Deputy      Sheriffs,
        Constables,   Deputy    Constables   and    other
        county and precinct law enforcement officials
        who are injured in the course of their
        official duties; providing that while        said
        Sheriff, Deputy Sheriff, Constable,        Deputy
        Constable or other county or precinct         law
        enforcement   official    is hospitalized      or
        incapacitated that the county shall continue
        to pay     his maximum     salary;     providing,
        however, that said payment of salary shall
        cease on the expiration of the term of office
        to which such      official was elected        or
        appointed.   (Emphasis added.)

     Both section 26 of article 1269m (now Local Government
Code section 143.045 (a) and   (b)) and article III, section
52e of the Texas Constitution      specifically  provide for
benefits where persons are injured or "incur illnesses"   in
the course of their duties.

     In our opinion, the specific citation of article    1269m
and Texas Constitution article III, section 52e in article
830921, section 5, indicates that the legislature     intended
that the words   "any other statutes . . . that provide    for
payment for incapacity to work because of injury on the job"
refer to other statutes       like article   1269m and Texas
Constitution   article   III, section    52e -- i.e.,    other
statutes that     specifically   provide   for '*pa ent    for
incapacity to work because of injury on the job." ?F



   2.  Such construction   comports with the doctrine      of
eiusdem aeneris, a tVprimeq*rule of statutory   construction
which requires that "where in a statute general words follow        -
a designation  of particular  subjects . . . the meaning   of
the general words will be restricted     by the particular
                                        (Footnote Continued)




                           p.   4578
     Mr. W. N. Kirby - Page 7   (JM-915)


P



          The provisions of Education  Code section 13.904 which
     were in "force and effect" when the offset provision      of
     article 830921, section 5 was enacted     in 1975 did not
     specifically provide for payments for l'incapacity to work
     because of injury on the job" and thus payments     received
     under section 13.904 are not subject to offset under section
     5 of article 8309h.

          This conclusion is reinforced by the ruling in Attorney
     General Opinion JM-447    (1986) that sick leave benefits
     granted to county officials     and employees  under  former
     article 3912k were not subject to offset under section 5 of
     article 8309h. Article   3912k made no specific provisions
     for payment for incapacity to work because of injury on the
     job, but merely authorized    the county commissioners of a
     county to

             fix the amount     of compensation,    office
             expense, travel expense,     and all    other
             allowances for county and precinct  officials
             and employees who are paid wholly from county
             funds. . . .

,-        JM-447 is the only opinion of this office dealing with
     the scope of the offset provisions of section 5 of article
     830911.3


     (Footnote Continued)
     designation in such statute." Farmers'    & Mechanics'  Nat.
     Bank v. Hanks, 137 S.W. 1120 (Tex. 1911). See also Stanford
     V. Butler, 181 S.W.Zd 269 (Tex. 1944) and Hammond v. Citv of
     Dallas, 712 S.W.2d 496 (Tex. 1986).

        3. Three court opinions have considered section     5 of
     article  8309h, but none is dispositive      of the issues
     presented here. Citv of Corous Christi v. Herschbach,    536
     S.W.2d 653 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd
     n.r.e.) held that section 5 operated prospectively and could
     not be applied to offset benefits    received under article
     1269m where the injury in question had occurred prior to the
     adoption of section 5.

          Anaelina Countv v. Modisette, 667 S.W.2d 881 (Tex. App.
     - Beaumont 1984, no writ) dealt with pension benefits    and
     the holding there turned on a reading of the proviso      of
     section 5, not quoted above because    not relevant  to the
     present issue, that:
                                             (Footnote Continued)




                                   p. 4579
Mr. W. N. Kirby - Page 8     (JM-915)




     Finally, in support of our conclusion that sick leave
benefits under Education Code section      13.904 may not be
offset under the provisions of article     8309h, we note the
general rule that workers' compensation provisions are to be
construed liberally in favor of claimants.    See. e.a., Stott
v. e s     molove r s Insurance Association, 645 S.W.2d    778
(Tex. 1983).




(Footnote Continued)

     under no circumstances   shall an employee's    pension
     benefit be reduced as a result of his injuries or any
     compensation received under the provision of this Act,
     unless such reduction is a result of a pension revision
     passed by majority vote of the affected members of a
     pension system.

     El Paso Countv v. Jeffers, 699 S.W.2d 375 (Tex. App.   -
El Paso 1985, no writ) ruled that payments received pursuant
to Texas Constitution article III, section 52e could not be
offset under section 5 because to apply section 5 would be
tantamount to holding that a constitutional provision  could
be amended by a mere act of the legislature.

     Acts 1987, 70th Leg.,      ch. 111, 51, subsequently   added
to section 5 the language:

     and any sums paid under Article   III, Section 52e, of
     the Texas    Constitution,  are   offset against    the
     week-to-week benefits otherwise payable under this Act.

In light of Jeffers, it would appear that this provision can
be read as constitutional   only if it is deemed to provide
that workers' compensation   benefits received under article
830911 are to be reduced to the extent that benefits       are
received under article     III, section   52e.   The   offset
provision of section 5 has been read generally to provide
that it is the other sums received         for   work-related
incapacity that are to be reduced to the extent workers'
compensation benefits are received under article 8309h. See
generally the discussion as to which benefits offset which,
in Anaelina County at 884.




                           p.   4580
Mr. W. N. Kirby - Page 9     (JR-915)




                       SUMMARY

             The offset provision of V.T.C.S. article
        8309h, section 5 does not apply to sick leave
        benefits received pursuant to Education  Code
        section 13.904.




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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