                           QBfficeof tty Bttornep Qheral
                                        &date of Qexas
DAN MORALES
 ‘.4rrORNEY
         GENERAL                           March 31.1993


      Honorable James W. Carr                     OpinionNo. DM-213
      Lfivaca County Attorney
      Box 576, Second Floor Courthouse            Re: whether a wmmissioners court may limit
      HallettsviUe,Texas 7796d                    the number of monthly supplemental workcrr’
                                                  compensation payments to county employees
                                                  already receiving such payments @Q-23 1)

      DedrMr.cflr

             You inform us that in 1986. the CommissionersCourt 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 supplemental payments to ten monthly
      -s.

            You state that two county employees were injured in 1988 and 1990, respecdveiy,
      and were granted supplementalhenefits pursuant to the 1986 order. You ask whether the
      ~mmissioners court may, on the hasis of the 1991 order, limit the mtmber of
      supplemental payments 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 injuries to the employeesin question occurred prior to the &ctive date of the
      Texas Workers’Compensation Act 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
      injuries which occur on or after this date. Id. 5 17.18(a), (c), at 122. The Texas Workers’
      Compensation Commission is directed to process claims for injuries occurring before the




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




e!Tectivedate 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 involving the 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 effect prior to 1991 did not speciScaUyrewire 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@ of Lkdhs 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 injured prior 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 supplemental benefits were




       %tkIc 8309h. V.T.C.S., amotly      mqoircapoliticalsoWvisionsof the me (tncludtng
                                                  plrchasineinswane, or amtmctingwithother
calmtie)to providesuchawerageeitherby self-ioaoling,
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.   1129
Honorable James 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 reflecting the ditTere.ncebchvew the
employee’sregular rate of pay and the amount of workers’wmpensation beneSts. The
court concluded that this provision not only created a duty to pay workers’compensation
be&its, but also obligated the city to pay the ditTerencebetween salary and bet&s for
the period the employee was legally entitled to workers’compensationbeneftts.

        Although the court in LW@os did not explicitly couch its holding in these terms,
it appears to have determined that the personnel manual wnstituted a part of the contract
of employment which could not unilaterally be changed by the employer subsequent to a
wmpensabte injury. An employee injured during the e&ctive period of the policy,
therefore, could claim a vested right to the benefits promised by policy. The city would be
prohibited from impairingthis right by unilaterallylimitingor eliminatingthese benefits.

        The term of the 1986 order granting supplemental benefits to employees of
Lavaca County authorized supplementalpayments “during the period of total disabiity.”
Because the payment of supplementalbenefits pursuant to the order is conditioned on the
receipt of workers’compensationbenefits by 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
supplementalbenefits paid to the two individualsdescribed in your request letter.

                                  SUMMARY

               The CommissionersCourt 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’compensation benefits and the employee’sregular wages or
          &arY.




                                                    DAN      MORALES
                                                    Attorney General of Texas




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




WILL.PRYOR
Fbst Assistant Attorney General

MARYKELLER
Deputy Attorney General for Litigation

RENEAHICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion hmittcc

Pmpared by Steve Amgh
-AttorneyGenaal




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