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                                                                           3132



      OFFICE OF THE ATTORNEY GENERAL       OF TEXAS
                        AUSTIN




Hon. Julian Montgomery
state Elghvay mg1neer
Au&An, Texas                                 ,,/   :


Dear Sir:




following inquiry request
oonoernlng the clas.ala
                      of
                                        surrountiagthe
                                        mpartlwnt have



                                    have any fknda avail-
                                   neilta to the above
                                    mllllarlg situated?"
                            qwrt aa primarily conoerning the
                            oed upon Artlole 66748, Vernon's
                     e8, 98 to vkether it8 provleAon6 Inure
                     oyeea of   the department     stutainlng   Injuries
                      date of Lnmranoe, fixed ~,aooordanoe
                                    Tke only authority of
                 Department to pay benefita under the pro-
                 rknum~s Compemation Lau applloable to the
&ate Highvap Departmmt Is to be found under the p~~vislona
of the Act itself.
         You partioularlyrefer to the claim8 of two former
employeee,W. E. fforhamand W. V. Quthrie, vho allege to hrve
bebn injwed on the dates of Iheember 7 and fhtober 27~ X93,
reerpeotlv%ly.Aa these dates Bee prior to JpnUrry 1, 1938, gOw
~l~ion    of tb tam "or any other olatainrmte siarilarlyS~tuHM"
Eon. Julian Montgomery,Page 2


Ia to be lnterpretsdas referring to mmber8 of a ala88 Of
enployee8 distinguIshedfrom othera by reason of their sui)-
tainlng some character of inJury prior to January 1, 1938.
          By the term "subsequentacts of the Legi8lature"you
no doubt refer to Eouse Bill l&7 and House Bill 1051, Aots of
193, 46th Leglsl8ture. We have fully dlwuwad these bill.8
in a brief filed vlth the IndustrialAaaldent B0axv3,aopiea of
rhiah vere furnluhed to your Imsuranae Dlreotor,Hr. g. 1.
Boor,    and to the attorzmyeihmdllngthe cwh~mdtkthrie
         We deem It umeoess8ry to revlev the euthorltle8 there-
in oitid, under which ve coni?ludedthat rueh bills vere uneop-
atltutlonaland vold. The contention is made, though ve do
not share such view, that these bill8 Inure to ths benafit of
gl~ployeesof this alass other than &wham and Outhrie n&mad
therein. 3t cartbe 88stlaned,hovever, that other employee8 of
the cl&ma are "sI~Llarlysituated,* a8 ths path of aeaurlng
leglslatlonsImil8r to the above mentioned Home Bills remain8
open to otheraS nuking It highly probable for maah other
employees to become *almilarlyaltuated."
          We acrllyour attention to the tsat that thl8 depmt-
sent 1s representingthe Elghvay Department in aepaxate suit8
filed, tvo emh by W. lc.Qorhaa and W. V. Quthrie, nov pending
3.nthe Dlatrlct Courts of lbLsnnan and e-8    Countlea,respeot-
ively. Our derenws urged in aald malts, vhiah Involve mny
quwt+cmttraised, are on record In raid oourt8. Eeedlema to
uy, the uuwr    to the qtzertionapxmounded in your ImpaIry I8
,depem&&. upon the queatlon of llabllity under the Act, vhloh
will be ultl.aBtelypea6ed upon by the UOUrt8.
          Th18 deptwtnwnt bs otmal8tent~ fOllonsd a poliay
of refualng to render an opinion npon legal que8tion8 involved
ti 8tit8 pendlng wherein the Court8 VI11 ultmte1y pas8 upon
same. However, 8lnca your request affeot8 anployee8 of,the
cl&l8 otherthanthe two e'lsissnt8QarhamandOuthrle, where-
in expre8s our viwa in 8eaordanoe vith tho8e urged in rrid
wits wherein the fxumtrrtotlom plaaed upon raid Article 66748
by the State RX&way Coand6sien of Tex- snd the Industrirl
&aide& Board of Texa8, two aeprate    and distlnat odpsinistrr-
tive agencies, is neaeaaarlly challenged.
          A8 ststed. any authority te p8y benefits unde? the
provlalana of ArtlolQ 66748, applicable to the State Hilrfnnr
D8partment,is to be derlwd   SYom the Aet ftwlf. Arkiek# 66748,
being Rouse Bill 420, Ad8 1937, 45th bgi8,latUW,.b--- 8 a=,
effeative June 11, 1937. The follovlng mMieFQ%l prOvISionS Of
this Aat are to be noted, begIn&ng vith the 08ption of the blllg
         "An Act providing vorlmen~a compensationinmrance
    for employees of thu State Highway DepartPent of Terns;
    detlnlng certain tez?m; authorizing the State Highway
    Department to be aelf-insuring;provldfng that the
    State Highway bpsFtment Shall ad.IUiniSterthl8 Act; ...
         "Section 1. By v3xtue of the provIalona of Sec-
    tion 59 of Article 111 of the Constitutionof the State
    of Texaa granting the Legislaturepaver to pass such
    lam9 a8 may be necessary to provide for Workmen~s Com-
    pensation Insurance for State employeea, as In Its
    @lgment la neceesary or required, and to provida for
    the payment of all costs, charges, and premiums on
    8uCh in8wmx?e, provision 1s made a8 hereinafter set
    forth.
         n ...~Insurance*shall mean Workmen~8 Compensa-
    tion Inmranae. ...
         “sec. 3. After the effective date of this lav
    any employee, as defined In this lav, rho austaIn8 an
    injury in the aourse of his eI&ploJlaent
                                           shall be paid
    c6mpensatlonas hereinafterprovided.
         "The Department.18hereby authorized to be self-
    in&uri"p and la charged vlth the a&ln.lstratIonof this
          The Department shall notify the Board of the effec-
    tlvi date of euch inmrance, stating In such notice the
    nature of the vork perfornmd by the employees of the
    l&partaent,the approximatenumber of employees, and
    the estimated amount Of pay ~011.
         "The Department shall give notloe to all employees
    that, effective at the time atatsd In such notice, the
    Departrsnthas provided for paymnt of inSUranCe. mloy-
    ee8 of the Department shall be aoncluslvelydeemed to
    have accepted the proplslona hereof In lieu of oorimon
    law or statutory cause8 of action* If any, for injuries
    resulting In the course of their employment."
          Fursuant to the authorizationcontained in 8aid hv,
Section3, aupra, the State Highway Department gave written
Mtlce to the IndustrialAccident Board that on January 1, 1938,
at 12~01 O'clock A.R., insurance vaa in effect.
          The Act being complete vithin itself, becoting a ltrvas
~Orescrld,by its Own term left it8 operation suapended until
8UCh time as the State Highway DepartIBentcould set up it8
Eon. Julian Montgomery, Page 4


~uranae dlvlalon and perform all other conditions,and establish
p&m and regulationsnecesrary for providing insuranceand pay-
ing benefits thereunder. The State Highway Department having
been granted suoh pover and authority, it is evident that until
8ah insurancevas provided and the departmnt becure self-insuring,
no liabilityvan Imposed upon the Bighvay Department to pay bene-
fits to its employees Injured prior to the eifectlve date OS
such Insurance.
          It is settled by many deolaiona that there is no room
Sor constructionvhen a lhv Is expreaaed In plain and unambiguous
languageand it8 meaning Is clear and obvious. In such a oaae,
*Q lav vi11 be applied and enforced a8 it reads, regardless OS
its polioy or mpose, or the justice of its effect. 39 Tax. Jur.
pua?a.a8,p.l1.E
          The notice given by the HIghmy D8partmmt to the
&du8tolal Acaldent Board, providing Insurance effective January
1, 1938, 12801 A.H., la to be read a part of 8aid Aot. There
oan be no Implied legal obllgatlon on the part of the State
Highway Departwnt to extend benefits to those employees injured
pdor to January 1,1938. We are mindful that injured vorkmn
had no aomon lav or rtatutorg cause of action agalnet the
State graving out of injuries austrined prior to Me extending
of benefits under this law. "Employee" and “aubac*lbd    go
handlnhw4d.    It Is not believed that the Leglsl.atun,in
vesting the State Elghuay Departmentvlth authority to adminle-
ter the Act and provide ipsurance, overlooked the contemporan-
QOW constructionplaoed on the procedural steps ordInarlly
taken and the accepted meanLng of the term8 "employee"and "eub-
aa~ibe~~ as used in the general Workmen*s CompensationLava, a
rmoessuy requisite to the creation of such statutory llabillty.
          As eaid In SouthveaternSurety Insurance Co. Y. Curtis
et al, 200 S.W. 1162 (vrit refused), "The i8suance of the con-
tract, Solloved by the injury, created the llabblllty,...'
Eplgloyeeaof the departme& did not automaticallybeaome "em-
ployees"vlthln ,theplain meaning and Intent of the Act. They
had no vested right ln the funds created until such tlw a8 lotual
notice, as provided in Section 3; supra, vaa given by the Depart-
wnt .
          It is presumed that the paver and authority granted
to the State Highvay Department to become aelf-lnsurfng,being
Co-extensivevlth that authorlrlng the employment of competent
clerks,bookkeepers,office help in general, obtain printing
                            s
aontrQct% pnd suppllea,and to exercise their judgment In the
aattlng up of rules Qnd regulations,looking to the creation
of a new system neceatmry for providing benefits under the
Act, 18 judlclouslyexercised,all of vhlah vaa a necessary pre-
requisite to pattIng such lnaurance in Soroe md calling said
Aat intO OpWatiOn.
         "It 18 the general rule that vhere an act 1s
    clothed vlth all the forma of lav and is complete
    In and of itself, it Is Srirly vlthln the scope of
    the lQglalQtivepaver to prescribe that it ah011
    become operrtlve only on the hrppenIng of nom apeol-
    fled contingency, oontlngenalea,or auoaeaalon of
    contFngencle3. Such a statute lies dormant until
    oalled into aatlve tome by the eriatenae of the
    conditiona on vhieh it 1% intended to operQt6.'
    16 C. J. S. para. 141, p. 415.
          We thereforereapeotfullyQdviae yau that It Is the
opinion of this department that the Highway Dapartment la not
authorlmd to pay benefit8 from the instmmoe fnnd set rald~
under Article 66746, Vernon's Annotated Civil 8tatutea to
smployeea injured prior to Januhrg 1, 19%. Erring wered
your fIr8t question in the negative, It Is unnecessary to
answer the second question propounded.

                                       Your8 very truly



                                  BY


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