Honorable David P. Bell              Opinion No. M-929
Executive Director
Texas Industrial Accident Board      Re: The liability of a county
State Insurance Building                 to its employees for in-
Austin, Texas 78701                      juries under the provisions
                                         of Article 8309c, Vernon's
                                         Civil Statutes, as amended
                                         by the 62nd Legislature,
                                         R-S., 1971, in S.B. No. 364.
Dear Mr. Bell:

     By reason of the enactment of Senate Bill No. 364 by the
62nd Legislature, Regular Session, 1971, (amending Art. 8309c,
Vernon's Civil Statutes), you have requested our opinion con-
cerning the following question:

           "If counties do not carry workmen's com-
     pensation, either through a private insurance
     company or by being self-insured, do they lose
     their common law defenses of contributory
     negligence, fellow servant doctrine and assumed
     risk?"

     Senate Bill No. 364 provides, in part, as follows:

          "Section 3. The county is hereby authorized
     to either be self-insuring or that it purchase work-
     men's compensation insurance for its employees from
     any company authorized to do business in Texas, and
     is charged with the administration of this Act.  It
     is expressly understood that the provision authorizing
     counties to provide such compensation or insurance is
     permissive and not mandatory; provided, however, that



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Honorable David P. Bell, page 2         (M-929)


     in any county of this State, the Commissioners Court on
     its own motion may call an election for the purpose of
     determining whether the county shall adopt the
     provisions of this Act.   If a majority of the
     qualified voters at such an election votes for the
     adoption of the provisions of this Act, the provisions
     of this Act shall thereafter be applicable to such
     county, and in such event it shall be mandatory that
     such county be either self-insuring or that it pur-
     chase workmen's compensation insurance for its em-
     ployees from any company authorized to do business
     in Texas, and is charged with the administration of
     this Act: provided, however, that if such county
     fails to provide either self-insurance or insurance
     under a policy of insurance, the county shall be
     subject to Sections 1 and 4 of Article 8306, Revised
     Civil Statutes of Texas, 1925, as amended or as they
     may hereafter be amended."

     Section 1 of Article 8306 referred to in the above quota-
tion provides that the common law defenses referred to in your
question are not defenses in a suit by an employee against an
employer who comes within the terms of the Workmen's Compensa-
tion Act.  Counties are not now within the coverage of the
Workmen's Compensation laws unless they have heretofore vol-
untarily adopted the enabling statutes enacted by the Legislature
concerning workmen's compensation benefits for counties.

     Since the authority under Senate Bill No. 364 to provide
county employees with workmen's compensation insurance is per-
missive, a county will not lose its common law defenses if the
amended law is not adopted by the county.   However, under the
express provisions of the amended statute, if the qualified
voters adopt the provisions of the Act pursuant to an election
called by the Commissioners Court, it becomes mandatory for the
county to be either self-insuring or to purchase workmen's
compensation insurance: and after such election, if the county
fails to provide either self insurance or insurance from an
insurance company, such county will be subject to the provisions
of Sections 1 and 4 of Article 8306, Revised Civil Statutes of
Texas, and therefore will lose its common law defenses of
contributory negligence, fellow servant doctrine and assumed risk.



                            -4535-
Honorable David P. Bell, page 3            W-929)


                             SUMMARY

               If at an election a county adopts the
          provisions of S.B. No. 364, 62nd Leg., R.S.
          1971, it is mandatory that the county be
          either self-insuring or that it purchase
          workmen's compensation insurance, and if it
          fails to do either, it will lose its common
          law defenses of contributory negligence,
          fellow servant doctrine and assumed risk.

                                  Very/t?uly yours,




                                  Attornk;y General of Texas

Prepared by Jack Sparks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
Robert Lemens
Ivan Williams
Jack Goodman

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
First Assistant

NOLA WHITE
First Assistant




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