                            Office of the Bttornep @enera
                                          &ate of aexas
DAN MORALES
 ATTORVEI
      GENERAL                               August 12,1993


    Arnold W. Oliver, P.E.                             OpinionNo. DM-241
    Executive Director
    Texas Department of Transportation                 Re: whether truckers hauling materials on
    125 East 1lth street                               and onto Texas Department of Trans-
    Austin, Texas 78701-2483                           portation wnstruction sites are required to
                                                       he covered by worked wmpensation
    Honorable James E. (Jim) Nugent                    illmance   (RQ-471)
    commissioner
    Railroad Commissionof Texas
    P.O. Box 12967
    Austin, Texas 7871l-2967

    Dear Mr. Oliver and CommissionerNugent:

           You each ask whether the Texas Department of Transportation (“TxDOT”) may,
    or must, require that truckers hauling materials to and onto TxDOT construction sites
    carry workers’wmpensation insurance.

           Article 8308-3.23. V.T.C.S., a       provision
                                                       of the Texas Workers’Cnmpen&on
    Act, provides in part:

                    (c)Inabuildingorwnstrwtion*wntractenteredintobytbis
               state or a political subdivisionof this w     including a municipality~
               thegovemmentalwtityshallrequirethewntractortocatifyin
               writing that the contractor provides workers’wmpewation iwuranw
               coverage for all employees of the wntractor employed on the public
               project. A subwntractor on the project must provide aucb a
               certiiicate to the general contractor relating to the coverage of the
               employees of the subwntractor. The general w&actor shall
               provide the certificate of a subcontractor to the governmental entity.
               A contractor who has a contract that rewires workers’wmpenmtion

            ‘Subsution (d) of micle 8308-3.23. V.T.C.8, &lines %dldiq or commaion- to iaclode
    “ela4ingorprqbngloaeclrtnrcturcq      includingtnlildings,bridges,rodway& poblic utilityfacilities,
    mrclwdrpputcnanm’;“lanodcling.~rrpeiring,ardcmolirhinga~~;or’othrwirc
    irnpwiqmlpmpcttyorapputcnanccr         to teal plopcny thlwgh similar activities.” we asaonx for
    prrgaasofthisopinioatbMthcTxDoTprojMsyourefntoconsti~e”buildingor~~“within
    the meaningofarticle 8308-3.23, V.T.C.S.




                                                  p.    1244
Arnold W. Oliver, P.E. - Page 2             (DM-24 1)
Honorable James E. (rim) Nugem



           insurance coverage may provide the coverage through a group plan
           or other method satisfactory to the governing body of the
           governmental entity. j’Pcomoteadded.]

         A brief submitted in wwection with your rquests argues that a provision of
article 91 lb. V.T.C.S.. an act perminiq generally to motor carriers, allows motor carriers,
even when employed on public projects within the rntig      of V.T.C.S. article 8308-3.23.
the option of protiding “accidents) insurance coverage” in lieu of the “workers’
wmpelmtioninsumnw coverage”requbtd by the latter provision. Section 13 of article
911bprovidesinpatt:

               Jz.achmotor canier shall also protect his employees by obtain&
           worked wmpensation insumnw coverage as de6ned under the
           Texas Workers’ Compensation Act (Article 8308-1.01 ef. seq.,
           Vernon’sTexas Civil Stamtcs) or accidental insmwce WVU@CiIlUl
           amount fixed by the [Railroad] Commissionhm a reliable insumnw
           company or companies authorized to write such policies in this state
           approved by tbe [Railroad] Commission.

The language regsrding “accidentsl insurance coverage”was added to section 13 in 1991.
Acts 1991,72d Leg., ch. 894,g 1. at 306041.

        The above-mentioned brief contends that the provisions of atticle 911~which
allow motor carriers the option of providing either workers’wmpensation or “accidental
insumnw” wverage-should. being specific to motor carriers, and moreover the more
recent@ enacted, be wnstrue-d to prevail over the provisions of article 8308-3.23. which
are gewraUy applicable to public works building and wnstruction wntractors. We
disagree. While the legislature has seen fit to provide in article 91 lb that motor carriers
genera& may opt to carry either workers wmpensation or “accidental insurance”
coverage, we do not believe that provision was intended to preclude application of more
stringent statutory requirements regarding insurance to motor carriers in particular
contexts. In our opinion, the legislature has indicated an intent in article 8308-3.23 that all
wntract workers on the public works projects wvered by the article have workers’
wmpensation coverage.

        Thebriefaloostatesthat’motorcarriaoinmost,ifnotall,csseswillbew
independent wntractor as defined in article 8308-3.05(a)(l).” and suggests that “motor
carriers defhmd as independent contractors do not have to provide workers’wmpensation
insurance coverage normally required under article 8308-3.23.”

       In our view, the purpose of article 8308-3.05 is generally to charadaize
employment relations as being ones of either employer-employee or employer4tdepwdent
contractor. These diiinctions are important since employers have various duties to
“employees” under the workers’ compensation act that they do not have when the



                                            p.   1245
Arnold W. Oliver, P.E. - Page 3           (DM-241)
Honorable James E. (Jii) Nugent



employment relation is one of employer-genera) contractor. See, e.g., V.T.C.S. arts.
8308-3.08    (employee election), 8308-3.24 (notice to employees whether wvered),
83084.01 (recovery by employee). Subpart (a)(l) of article 8308-3.05. to which the brief
rde-rs, defines “independent contractor” by setting out tather standard legal elements of
the independent wntractor relationship. With regard to transportation workers, subpart
(a)(4) defines an “owner operator”as “a person who provides trwsportation setvices for a
motor carrier under wntract,” and provides that “[a]n owner operator is an independent
wntractor.”

        Contrary to the suggestion in the brief, we do not believe that article 8308-3.05
creates any exceptions to the workers’compensation wverage requirements of article
8308-3.23.   J.nour view, in requiting “generalwntractors” and “sub-wnt.ractom”to show
proof of coverage for those who will work on the project, the legislature intended to
include all wntract workers under the wverage rquirement includingthe “wntractors” or
“sub-wntractors” themselveswhen they are in fact “employedon the public project.” Id.
art. 8308-3.23. While chsractexiaationof a particular worker, based on the provisions of
article 8308-3.05. as an “independent wntractor” rather than fan “employee” may
determine who is responsible for providing workers’compensation wverage for the
worker under article 8308-3.23. it does not, in our opinion, relieve anyone from the
coverage requirement includmg the “wntractors” or “subwmractors” themselves when
they are in fact “employed on the public project.” If the worker is an “employee,”his
employer is responsible for providing wverage. Jf he is an *independentwntractor,” he
himselfis ultimately responsible.2

       Since we conclude that workers’compensation wverage is mquired, we need not
address the part of your question which asks whether TxDOT hss discretionary authority
to reguire truckers hauling materials on TxDOT projects to carry workers’wmpwsation
insumnw.




        %ee,e.g.,id. art.8308-3.05(g)(“motorauric~ md’ownerop~ralO~ maya~chtformerarill
pluvidecovaage for bltm).




                                          p.   1246
Arnold W. Olivex,P.E. - Page 4          (DM-241)
Honorable James E. (Jii) Nugent




                                  SUMMARY
              Ttuckers hauling materials on and onto Texas Department of
          Transportation cons&a&on sites an required, under tick
          8308-3.23, V.T.C.S., to be covered by workers’ compensation
          insuranw.




                                                    DAN      MORALES
                                                    Attorney General of Texas

WILL PRYOR
PiiAssismmAtmmeyoeneral

MARYKELLER
Deputy Attomey Cienexalfor Litigation

RENEAHIcRs
state solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Preparedbywilliamwalker
Assistant Attorney Oerural




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