          THE      ATTBRNES             GENERAL
                       OIF~IEXAS




Hon. David P. Bell               Opinion No. M-398
Executive Director
Texas Industrial Accident        Re:   Whether the Industrial
   Board                               Accident Board is auth-
State Insurance Building               orized to award attorney
Austin, Texas 78701                    fees or expenses in
                                       certain given fact
Dear Mr. Bell:                         situations.

     In your opinion request to this office you set forth
two fact situations and questions as follows:

     "In Board File H-58933, a copy of which is attached,
     the insurance carrier filed an admission of lia-
     bility and tendered payment of death benefits
     prior to the final award of the Board. The Board
     in its final award awarded attorney's fees in the
     amount of $250 to the attorney for the widow and
     guardian of the named minors. Was the award of
     attorney's fees proper under the aforesaid Sections
     7c and 7d?

     "In Board File H-14293, a copy of which is attached,
     the insurance carrier and the surviving beneficiaries
     entered into a lump sum settlement agreement before
     a final award of the Board was entered. Viewing the
     lump sum settlement agreement as an admission of lia-
     bility and tender by the carrier, no attorney's fees
     were allowed in the final award of the Board. Was
     this action proper under the aforesaid Sections 7c
     and 7d, Article 8306?"

     We are further advised that both of these situations
involve (1) death claims: (2) an admission of liability by
the insurance carrier; (3) the insurance carrier tendered
payment of maximum benefits; and, (4) the claim was still
pending before the Industrial Accident Board.

     Article 8306, Section 7d, Vernon's Civil Statutes, pro-
vides, in part, as follows:

          "Provided, however, that in all cases invol-
     ving fatal injuries where the Association admits



                            - 1976-
Hon. David P. Bell, Page 2 (M-398)



     liability on all issues involved and tenders
     payment of maximum henefits in writing under
     this Act while the death benefits claim of such
     beneficiaries is pending before the Board, then
     no attorney fee shall be allowed."

     By this provision the Legislature of this State has
clearly and unambiguously provided that no attorney fee
shall be allowed by the Board in any case:

     1.   Involving fatal injuries;

     2.   When the Association admits liability on all
          issues involved;

     3.   When the Association tenders payments of maxi-
          mum benefits in writing: and

     4.   When such action is taken while the death benefit
          claim of such beneficiaries is pending before
          the Board.

     Both of the fact situations which you present in your
opinion request fall squarely under the provisions of Section
7d aforesaid.  It is the opinion of this office that no
attorney fee may be allowed by the Board in either of your
fact situations.

     However, Section 7d deals with a specialized situation
and should not be divorced from the rest of the provisions
governing awards to attorneys by the Board.

    Article 8306, Section 7c provides, in part, as follows:

     "No attorneys' fees for representing claimants
     before the Board shall be allowed or approved
     against any party or parties not represented by
     such attorney, nor exceeding an amount equal to
     fifteen per cent (15%) of the total recovery,
     in addition to the reasonable expenses incurred
     by the attorney in the preparation and presentation
     of the said claim before the Board, such expenses
     to be allowed by the Board."

     The above quoted provision clearly shows that the Texas
Legislature has made a distinction between attorney fees


                         -1977-
Hon. David P. Bell, Page 3 (M-398)



and reasonable expenses incurred by the attorney. While
the last paragraph of Section 7d prohibits the Board from
granting an attorney a fee for handling a claim, which falls
within the'conditions set out in said paragraph, it is the
opinion of this office that such prohibition does not apply
to reasonable expenses~incurred by the attorney, in the
preparation and presentation of said claim before the Board,
the approval by the Board of said expenses being allowed
by Section 7c.

                      SUMMARY

               Article 8306, Section 7d, Vernon's
          Civil Statutes, prohibits the Industrial
          Accident Board from awarding attorney
          fees in those cases in which there is a
          fatal injury, when the insurance carrier
          admits liability on all issues and tenders
          payment of the maximum benefits, while the
          claim is pending before the Board. The
          Board is not, however, prohibited from
          allowing reasonable expenses incurred by
          the attorney in the preparation and pre-
          sentation of said claim before the Board,
          said expenses being allowed by Article  8’306,
          Section 7c.




Prepared by Robert E. Owen
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Xelton, Vice-Chairman

John Grace
Ronnie Luna
Ralph Rash
Arthur Sandlin

W. V. Geppert
Staff Legal Assistant

Hawthorne Phillips
Executive Assistant
                           - 1978-
