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                          EA                NEY     GENERAL.
                                   OF      TEXAS
                               AUSTIN.      TEXAS   78711
CRAWYORU c. MAR-rlN
 *x-rORNEW   GEZWERAI.
                                    December 2, 1969


     Honorable Joe B. Roberts                 Opinion No.M-527
     Chairman, Texas Industrial
        Accident Board                       .Re: Whether, in light of Senate
     State Insurance Building                      Bill 580, Acts of,the 61st
     Austin, Texas' 78701                          Legislature, Regular Session,
                                                   1969, a county which is not
                                                   a subscriber to some form of
                                                   workmen's compensation in-
                                                   surance,has waived its common
                                                   law defenses~to a suit for
                                                   injury or death of a county
     Dear Mr. Roberts:                            ~,employee.
              Your recent request for the opinion of this office
     is concernedwith Senate Bill !i80,, es passed during the-~regular
     session of ~the 6lst Legislature, 1969, which amends Section 6
     of Article 8309c, Vernon's Civil Statutes. .Particularly,you
     ask whether a county which is not a-subscriber to some form
     of workmen's compensation insurance has waived its common law
     defenses to a suit brought against the county to recover for
     the injury or death of one of its employees. Your request
     points out that amending Section 6 of.Article 8309c, V.C.S.,
     to include Section.4 of Article 8306,~V.C.S;, has given rise
     to this inquiry,-and you have directed attention to the case
     of Boswell v. Cityof Sweetwater,M341,S,W.2d 664 (Tex.Civ.App.~
     1961, error ref.) in this regard.
                 Senate Bill 580 reads, in part:
                 I. . .

                 "Set,..6. Adoption of General Workmen's
             Compensation Laws.
                 "(a) The following laws as amended or as
             they may hereafter be amended are.adopted except
             to the ertent,that they are inconsistent with
             this Act:




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Hon. Joe B.*Roberts, page 2 (R-827)


        "(1) Sections 1, 3, 3a, 3b, 4, . . . of
    Article 8306, Revised Civil Statute8 of Texas,
    1925, as amended;
          It
           . . ."' (Emphasis added.)
          Section 4 of Article 8306,"V.C.S., reads:
         "Sec. 4. Employes whose employers are not
    at the time of the injury subscribers.to said as-
    sociation,,and the representatives and beneficiaries
    of deceased employes who at the time of the injury
    were working for nonsubscribing~employers can not
    participate ,inthe~benefits of said insurance as-
    sociation, but they shall be entitled to bring suit
    and may recover judgment against such employers, or
    any of them, for all damages, sustained by reason
    of any personal injury received inthe course of
    employment or by reason of death resulting from
    such injury, and the provisions of ,section 1 of
    this law shall be applied in all~.suchactions."
         Section 1 of Article 8306, V.C.S., to which Section 4
refers, reads:
          "Section 1.. In an action to recover damages
    for   personalsknjuries sustained...byanemploye in
    the   course'of his employment, or for death result-
    ing   from personal injury so sustained, it shall
    not   be a defense:
         "1. That the employe was guilty of contribu-
     tory negligence.
         "2. That the injury was caused by,the negli-
     tence of a fellow employe.
        "3 . That the ~employe had assumed the risk of
    the injury incident to his employment; but such
    employer may defend in such action,.onthe ground
    that the injury was caused by the willful intention
    of the employe to bring about the injury, or was
    so caused while the employe was.,ina~,stat.eof in-
    toxication.
          "4 .   In all such actions against an employer




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Hon. Joe B. Roberts, page 3 (M-527)


    who is not a subscriber, as defined hereafter
    this laws,it shall be necessary to a recovery
    the plaintiff to prove negligence.of such employer
    or some agent or servant of such employer acting
    within the-general scope of his employment."
         In light of the foregoing, it would appear that counties
                                                             .
which are not subscribers to some form of workmen's compensation
insurance shall be denied the protection of their common law de-
fenses when suit has been brought against the county for the in-
jury or death.of a county employee.- However, Section 3 of Article
8309c, reads, in part:
         "Sec. 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:,businessin
     Texas,,and is charged with the~administration Of
     this Act. zt is expressly understood that the
     provision authorizing counties.to.provide such
     compensation or insurance is permrsslve and not
     mandatory;-provided, however, that 'inany county
     of this state, the Commissioners Court on its
     own motion may call an election..forrthepurpose
     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 ap-
     plicable to such county,-and in such event it
     shall be-.mandatorythat such county be either
     self-insuring,or that it purchase.workmen's
     compensation.~insurancefor its employees from
     any company authorized to do business in Texas,
     and is charged with the administration of this
     Act.
         "The Commissioners Court may by proper order
     put into effect the provisions of this Act. The
     Commissioners Court of the county shall notify
     the Board of the effective date of such insurance,
     stating in such notice the nature ~of the.work per-
     formed by the employee of the county, the approxi-
     mate number of employees, and the estimated amount
     of payroll." (Emphasis added.)
         Section 3 of Article 8309c prescribes the manner in


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Hon. Joe B. Roberts, page 4 (M-527)


which Article 8309c shall be put into effectin a county. Section
3 is expressly, by its terms; permissive, not mandatory.- There-
fore, until Article 8309~ is put into.effect in a'county by one
of the means outlined in Section 3,thereof;none of.the pro-
visions of Article 8309c apply to said-county, inc.ludingthe
amended Section 6 of Article 8309c; which does away with the
common law defenses.
         It should be noted that this~conclusion disagrees with
certain statements,which appear in,~the,.crase-.of-~-~we'll
                                                       v. City of
Sweetwater.,supra. However, it is the opinion of this office
that such statements in said case.are:dictum, as they deal with
a situation which was not before the court for ~argument or
decision, and; ,therefore,this office.doesnot consider such
statements as~controlling on the,.issue.
         It is the opinion of this office that Senate Bill 580,
which amends Section 6 of Article 8309c,,.doeSnot eliminate the
common law.defenses of a county which.has not taken the steps
necessary to put Article 8309c into-effect in such county.


         Section.6 of Article 8309c, V.C.S., as amended,
     dOeB not a&to   abolish the common law defenses of
     a county until Article 8309c becomes effective in
     such county. Article 8309c does not become effective
     in a county until such time as such actions as are
     indicated in.,Section3 thereof.are  aken.
                                      h




                                             eneral of Texas
Prepared.by Bill Corbusier
Assistant~Attorney General




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Hon. Joe B. Roberts, page 5 (M-527)


APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton; Vice-Chairman
Houghton Brownlee
Wardlow Lane
Roger Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant




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