      ,
-.I       -.




               Hon. J. P. Gibbs                                Opinion No. V-1033
               Casualty Insurance         Commissioner
               Board of Insurance         Commissioners        Re:    The applicability  of the
               Austin, Texas                                          seven day waiting per-
                                                                      iod provided by Section
                                                                      6 of Article 8306, V.C.S.,
                                                                      to workmen’s    compensa-
                                                                      tion insurance on county
               Dear    Sir:                                           employees.

                              Your   request   for an opinion reads   as follows:

                            “Controversy    has arisen over H.B. 611, 51st Leg-
                      islature,  1949 (Article 8309-C)  which provides for Work-
                      men’s Compensation      Insurance for County Employees.

                            “The point at issue is whether H. B. 611 provides
                      for a waiting period of seven days before compensation
                      is payable or whether compensation       is payable from the
                      first day of disability.   The general Workmen’s     Compen-
                      sation Act, in Article 8306, Section 6, provides that no
                      compensation    shall be paid for an injury which does not
                      incapacitate  the employee for a period of at least one
                      week.   Compensation     shall begin to accrue on the eighth
                      day after the injury.

                            “H. B. 611, Section 6, adopts certain sections of
                      Article 8306 and other articles,   and provides that these
                      sections shall govern insofar as applicable under the
                      provisions  of this law. At the head of the list of sections
                      from Article 8306 is listed ‘Section 5, as amended by
                      Acts, 1927, Fortieth Legislature,   Page 84, Chapter 60.
                      Section 1 . . .’ There  is an apparent  error here, since
Hon.    J. P. Gibbs,   Page     2, V-1033.



       Section 5 of Article 8306 was not amended by the Forti-
       eth Legislature.    Section 6, of Article 8306 was amend-
       ed by the Acts of 1927, Fortieth Legislature,    Page 84,
       Chapter 60, Section 1, and no other section is amended
       at that point.

             “House Bill 611, as printed in the House, calls
       for Section 6, of Article 8306 and the same bill in the
       Senate also shows Section 6. This bill was ameridelT in the
       Senate in some minor respects,       but none of these
       amendments     recites any change in this part of what
       was then Section 7, of H. B. 611.      One of the amend-
       ments eliminates     Section 4, of the House Bill and di- ‘.
       rects that the sections be renumbered.       The sections
       were renumbered      and the Secretary   of State has the
       copy of the bill on which the changes were made.        The
       reference   to Section 6, of Article 8306 evidently was
       changed to read ‘Section z at this time.

            “It is significant that the State Highway Depart-
       ment Workmen’s       Compensation  Act (Article 6674-s).
       the Agricultural    and Mechanical  College Compensation
       Act (Article 8309-b)    have the same section as the pre-
       sent Section 6 of H.B. 611, and in each case it is Sec-
       tion a, of Article 8306 which is included, not Section 5
       of 8306, which relates to Exemplary      Damages.

             “The immediate       question before the Board of In-
       surance Commissioners         arises because the Workmen’s
       Compensation      Insurance carriers      contend that H. B. 611
       does not provide for the usual seven day waiting period
       and they have requested increased          rates on County Em-
       ployees Workmen’s       Compensation      Insurance to cover
       the substantially    greater amounts of compensation       to be
       paid if compensation      begins to accrue with the first day
       of incapacity due to injury.       If H. B. 611 does embody the
       same waiting period found in the other similar acts, no
       increased   rates are needed.

            “Please    advise    us as to whether   or not, in your
Hon. J. P. Gibbs,   Page   3, V-1033.



     opinion, the seven day waiting period provided in Arti-
     cles 8306, 6674-c   and 8309-b is also a part of H.B.
     611 (Article   8309-c).”

          We have likewise checked this bill (H.B. 611) in the of-
fice of the Secretary of State and find that as of the time when it
was originally passed by the House it read as follows:

           “Unless otherwise provided herein, Section 6, as
     amended by Acts, 1927, Fortieth Legislature,     page 84,
     Chapter 60, Section 1; 7; 7b; . . . .” (Emphasis   ours
     throughout remainder   of opinion unless otherwise indi-
     cated.)

         We also find that the said Bill as signed by the Governor,
reads:

         “Unless  otherwise provided herein, Section 5, as
     amended by Acts, 1927, Fortieth Legislature,  page 84,
     Chapter 60. Sections 1, 7, 7b. . . .I’

           The committee   amendments  to this Bill, as you correctly
state in your letter, recite no change relative to the above quoted
provision.   Thus we are squarely confronted with a difference    in
wording, i.e., “Section 6” becoming “Section 5,” after passage
by the House and without apparent intent by the Legislature.

          It is certainly significant that Article 6674-s,    V.C.S.,
which provides workmen’s       compensation   insurance for Highway
Department     employees,  and Article 8309-b,    V.C.S.,  providing
workmen’s     compensation   insurance for employees      under Agri-
cultural and Mechanical    College Directors,    each contains the pro-
vision as found in the original version of House Bill 611, as fol-
lows :

          “Unless   otherwise provided herein,           Section 6, as
     amended by Acts 1927, 40th Legislature,             page 84, Chap-
     ter 60, Section 1, 7; 7b; . . .”

         Section    5. Article   8306   (Acts   1917,   p. 269) provides:
Hon. J. P. Gibbs,     Page   4, V-1033.



              “Sec. 5. Nothing in this law shall be taken or held
        to prohibit the recovery    of exemplary    damages by the
        surviving husband, wife, heirs of his or her body, or
        such of them as there may be of any deceased employe’
        whose death is occasioned      by homicide from the wilful
        act or omission    or gross negligence    of any person,
        firm or corporation     from the employer of such em-
        ployd at the time of the injury causing the death of the
        latter.   In any suit so brought for exemplary    damages
        the trial shall be de nova, and no presumption      shall
        exist that any award, ruling or finding of the Indus-
        trial Accident Board was correct.       In any such suit,
        such award, ruling or finding shall neither be pleaded
        nor offered in evidence.     Id.”

              The above provides for exemplary         damages recoverable
by enumerated        survivors.     It is a fundamental rule of law that the
State of Texas is not liable for the torts of its officers and agents.
Stateet’ al v. Morgan,          140 Tex. 620, 170 S. W.2d 652 (1943); Texas
Highway Department          v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949).
State v. Elliott, 212 S.W. 695 (Tex. Civ. App. 1919, error ref.);
Matkin v. State, 123 S.W.Zd 953 (Tex. Civ. App. 1939, error dism.
judgm. car.); Welch v. State, 148 S.W.2d 876 (Tex. Civ. App. 1941,
error.ref.)..       The same rule has been applied to counties.          11
Tex. Jur. 627, Sec. 92; Bryan v. Liberty County, 299 S.W. 303
(Tex. Civ. App. 1927); Braissaird            v. Webb County, 128 S.W.Zd 475
(Tex. Civ. App. 1939).         Section 5 of Article 8306 does not give any-
one a cause of action but merely states that recovery            of exemplary
damages is not prohibited under the Workmen’s               Compensation    Act.
Since an employee has no cause of action against the State in the
first instance, he could not recover exemplary             damages for the
wilful or malicious       acts or gross negligence      of other State em-
ployees.       The inclusion of Section 5 of Article 8306 would be a
meaningless       act on the part of the Legislature      unless its impli-
cations are far beyond the evident intent merely to establish a
conventional workmen’s           compensation    system for county employees.

            Section 6, Article 8306.(as    amended    by Acts   40th Leg.,
1927,    ch. 60, p. 84, Sec. 1)provides:

             “No compensation     shall be paid under this law for
Hon. J. P. Gibbs,   Page   5, V-1033.



     an injury which does not incapacitate    the employe’ for
     a period of at least one week from earning full wages,
     but if incapacity extends beyond one week compensation
     shall begin to accrue on the eighth day after the injury.
     The medical aid, hospital services,     and medicines,   as
     provided for in Section 7 hereof, shall be supplied as
     and when needed and according to the terms and pro-
     visions of said Section 7. If incapacity does not follow
     at once after the infliction of the injury or within eight
     days thereof but does result subsequently,     compensa-
     tion shall begin to accrue with the eighth day after the
     day incapacity commenced.       In any event the employe’
     shall be entitled to the medical aid, hospital service
     and medicines    provided in this law. Provided further,
     that if such incapacity continues for four (4) weeks or
     longer, compensation     shall be computed from the in-
     ception date of such incapacity.”

          Conclusive  indication of the legislative intent to adopt
Section 6 instead of Section 5 is that the Bill, from its inception     un-
til signed by the Governor,    makes the following reference:

           ,I . . . . as amended by Acts, 1927,   Fortieth Leg-
     islature,    page 84, Chapter 60, Sections   1, _~. . .I’

As seen above, this reference      is descriptive    of Section 6. Clearly,
such reference   could not apply to Section 5 of Article 8306 because
Section 5 was not in fact so amended.        If Section 5 of Article 8306
is included, that reference   is meaningless.       On the other hand, it
appears obvious that the Legislature       intended to incorporate   Section
6 of Article 8306 as part of Article 8309c, just as it had done on
two prior occasions,   i.e., Article 6674s, the State Highway Depart-
ment Workmen’s     Compensation      Act, and Article 8309b, the A 8 M
College Workmen’s     Compensation      Act.


          Obvious mistakes  in the language of an Act should be con-
strued by the court to make sense where otherwise the Act would
do a thing useless and meaningless.    Chambers   v. State, 25 Tex.
307 (1860).  The Supreme Court of Texas in Wood v. State, 133
Tex. 110, 126 S.W. 2d 4 (1939), held that the words, “is absent”
Hon.   J. P. Gibbs,   Page   6, V-1033.



as used in Article    2956, V.C.S.,  should read “expects   to be ab-
sent,” stating that “statutes    should be construed so as to carry
out legislative   intent, and when such intent is ascertained   it should
be given effect even though literal meaning of words used in statute
is not followed.”

          In Loving County v. Reeves County, 126 S.W. 2d 87 (Tex.
Civ. App. 1939, error ref.) the court made a correction      in an in-
correct statutory reference:      “The reference  in Article 7238 to
Article 7235 is apparently an error in revision or codification,
as suggested by defendant, and the reference,    we think should be
to Article 7228, to give the intended meaning.”     In 39 Tex. Jur.
186, we find the following language: “an incorrect     reference  in
an amendatory    statute, to an act or section amended may be dis-
regarded where the clear intent of the Legislature     was to amend
another act or section,”    citing Cernoch v. Colorado County, 48 S.
W. 2d 470 (Tex. Civ. App. 1932). wherein the court construed the
reference   “6894 and 6895” of Title 119, Revised Statutes of 1911,
to read “6984 and 6985,”           ,“, .

          Again, in Camden Fire Insurance Association    v. Harold
E. Clayton & Co., 117 Tex. 414. 6 S.W. 2d 1029 (1928) the Supreme
Court, speaking through Chief Justice Cureton, construed      the lang-
uage “shall not be invalidated by any act of neglect of the mortga-
gee or owner ” as found in Article 4931 to read “shall not be in-
validated by any act 2 neglect of the mortgagor    or owner.”    The
court reasoned that the terms of the statute involved are so plain
that there can be no doubt whatever that its purpose was to pro-
tect the holder of the mortgage,  to whom the policy was made paya-
ble under the loss payable clause, from ‘any act or neglect of the
mortgagor.’   ”

           Therefore,   since the Legislature    specifically  described
Section 6 by the quoted reference,      and on two prior occasions
similar Acts of the Legislature      included Section 6, and not Section
5, and nothing in the Act indicated an intention to impose exem-
plary damages on the State, and because statutes should be con-
strued in a manner to carry out the legislative        intent, it is our opin-
ion that the provisions    of Section 6 of Article 8306 were enacted
into Article 8309~.
Hon. .J. P. Gibbs,   Page   7, V-1033.



                               SUMMARY



          The seven day waiting period provided for in Sec-
     tion 6 of Article 8306, V. C. S., is also a part of Article
     8309c, V. C. S., setting up a workmen’s    compensation
     system for county employees.

                                               Yours    very truly,

                                               PRICE DANIEL
APPROVED:                                     Attorney General

Ned McDaniel
State Affairs Division

Charles D. Mathews
Executive Assistant                                    Assistant

VFT:mf
