                          QXfice of tip !hmep   Qhneral
                                  &ate of Qexas
DAN MORALES                         November 13.1992
 ATTORSEY
      GENERAL




     Mr. Todd K. Brown                            Opinion No. DM-180
     Executive Director
     Texas Workers’ Compensation                  Re: Whether a political subdivision
      Commission                                  is required to provide workers’ com-
     4ooo south II-I-35                           pen&on coverage for its employees,
     Austin, Texas 78704                          and related questions (RG-401)

     Dear Mr. Brown:

            You ask first whether a political subdivision is required by the current
    workers’ compensation laws to provide workers’ compensation coverage for its
    employees. You note that Attorney General Opinion H-338 (1974) construed the
    provisions of the workers’ compensation laws in effect at the time of that opinion’s
    issuance to permit political subdivisions to elect to forego providing workers’
    compensation coverage for their employees, but argue that under the current
    workers’ compensation laws, which were substantially rewritten in 1989, political
    subdivisions’provision of such coverage is mandatory. See Acts 1989, 71st Leg., 2d
    C.S., ch. 1, at 1. We agree.

          Article 83094 V.T.C.S., relating to workers’ compensation insurance for
    employees of political subdivisions, provides in section 2(a):
                   All political subdivisions of this state shall become either
              self-insurers, provide insurance under workmen’s compensation
              insurance contracts or policies, or enter into interlocal
              agreements with other political subdivisions providing for self-
              insurance, extending workmen’s compensation benefits to their
              employees.
           The court in Wallace v. City of Midland, 836 S.W.2d 641 (Tex. App.-El Paso
    1992, writ denied), construed these provisions to require a political subdivision “to
    provide workers’ compensation coverage in any one of three ways” set out therein.




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Mr. Todd K, Brown - Page 2 U+lao)




‘Though it had some discretion in how it would fulfill the workers’ compensation
requirement,” the court continued, “it did not have’the discretion not to cover its
employees in one way or another.” We think no further authority is necessary for us
to conclude, in response to your first question, that a political subdivision’s provision
of workers’compensation coverage to its employees is mandatoty.

        We would note, however, with reference to the conclusion of Attorney
 General opinion H-338 that political subdivisions were not required to provide
workers’ compensation coverage, that although the quoted provisions of article
8309h, section 2(a), have not changed since that opinion’s issuance, other provisions
on which that opinion relied to reach its conclusion have changed. Primar&
 section 3(a) of article 8309h formerly specifically adopted other provisions of the
workers’ compensation laws governing the rights of employees whose employers did
not have workers’ compensation coverage to seek relief at common law for injuries
sustained on-the-job, and limiting the common-law defense available to such
 employers in those actions. See V.T.C.S. arts. 8308-3.03,3&l (formerly codified as
 V.T.C.S. art. 8306, 00 1.4). Attorney General opinion H-338 took the incorpora-
tion of these provisions into those of article 8309h to indicate that political
subdivisions might elect not to have workers’compensation coverage and thus to be
 subject to the suits at common law provided for in the incorporated provisions.
Article 8309h was amended in 1989 so that it no longer incorporates such provisions
for common-law suits. Acts 1989,71st Leg., 2d C.S., ch. 1, Q 15.47, at lU, see rrLro
 V.T.CS. art. 8308-3.23(a), added in 1989 revision, providing that employers, “except
forpublic empbym and as otherwise provided by law,”“may elect to obtain workers’
compensation insurance coverage.” (Emphasis added.)

       Your next question is predicated on a negative response to your first
question. We thus need not address it.

       Your third question is:
          If a political subdivision elects to become a self-insurer, is it
          subject to any requirements similar to those applied to private
          employers in Art. 8308-351 to 3.707
       Section 3(a)(3) of article 8309h speci8caUy indicates that article does not
adopt the provisions on self-insurance regulation contained in article 3, chapter D,
of the general workers’ compensation law, article 8308. Article 8308, chapter D,
provides for a division of self-insurance regulation within the Workers’



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Mr. Todd K Brown - Page 3 0X-180)




Compensation Commission, certi6cation of self-insurers, reporting requirements,
taxes and fees. We can only conclude from the specific exclusion of these provisions
from those adopted by section 3(a)(3) of article 8309h that the legislature did not
intend that political subdivisions which elect to meet the article 83094 section 2(a),
coverage requirement by self-insuring, be subject to the generally applicable self-
insurance regulation provisions of article 8308, subchapter D.

        However, in providing coverage through self-insurance, political subdivisions
would be subject to the other provisions of the general compensation laws which are
adopted by section 3(a)(3) of article 83094 “except to the extent that they are
inconsistent with th[e] article.” The adoption provisions of section 3(a)(3) indicate
that, generally speak& a political subdivision’s self-insurance plan must comport
with all of the provisions of the general compensation law, article 8308, except
certain article 2 provisions relating to the financing of the Workers’ Compensation
Commission, the provisions of article 3, chapters B, C, and D, respectively, relating
to “security procedures,” “commercial insurance,” and “self-insurance-regulation+”
and the section 4.01 provisions regarding exemplary damages. Thus, for example, a
political subdivision’s self-insurance plan must, generally speakin& comply with the
coverage and benefits provisions of article 3 and 4 of article 8308. We do not think
it appropriate in the opinion process, however, to attempt to itemize and discuss
every provision of the general compensation law, or of other law, which a political
subdivision should take account of in structuring a self-insurance plan Nor can we
anticipate situationswhere such provisions might or might not be relevant Such
matters should be worked out by consultation between a political subdivision and its
counsel.

                                 SUMMARY

             Political subdivisions of the state are required to provide
          workers’ compensation coverage for their employees.




                                                  DAN      MORALES
                                                  Attorney General of Texas




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Mr. Todd K. Brown - Page 4         (CM-180)




VXU. PRYOR
First Assistant Attorney General

MARYKJXLER
Deputy Assistant Attorney General

RBNEAHJcKs
Special Assistant Attorney General

MADELBINB B. JOHNSON
Chair, Opinion Chnmittee

Prepared by William Waher
As&ant Attorney General




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