                         August 29, 1966


Honorable Gene Russell        Opinion No. C-744
County Attorney
Eurnet County                 Re:   Construction of Article
&met,   Texas                       83Qgc, Vernon's Civil
                                    Statutes, relative to
                                    counties becoming self-
                                    Insuring or purchasing
                                    workmen's compensation
Dear Mr. Russell:                   insurance.     :
          Your letter requesting an opinion of this office
reads, in part, as follows:
         "The Constitution of the State of Texas
    (Article III, Sec. 60) authorized the Leglsla-
    ture to pass a law permitting the counties of
    Texas to become self-insuring or to purchase
    workmen's compensation Insurance. Article
    8309c (at Sectlon3), In fact gives the
    counties such authority.
         "The Act provides (at Section 16) that
    the county may set aside. . .an amount not to
    exceed 5% of the annual employee payroll for
    the payment of costs etc.authorized by the
    Act. Section 3 provides that the Act shall
    not be mandatory but that If the provisions
    of the Act are adopted, thz it shall be
    mandatory that the counts    either self-
    insuring or that it purcha~seworkmen's
    compensation insurance. . . .
         "(1) Does the Act re.ferto lself-insuring'
    as the status of the county, if it adopts the
    provisiohs of the Act (but without taking out
    insurance with a private carrier), or to,the
    stertusof a county which does'not choose to
    come under the Act at all, or to both?
         "(2) Does it in any way purport to enlarge
    the liability of a county which does not elect
    to come under the provisions of the Act?
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Hon. Gene Russell, page 2 (c-744)



          “(3)  And, finally, if a county does electto
     come under the Act, does the authorization for It
     to set aside 2 to 5% of the annual employee pay-
     roll in any respect imply that its statutory llabll-
     ity Is limited by the amount which It does set aslde
     If it sets aside less than the 5% referred to (or
     is this last simply a~flnanclng provision implying
     no correlation with liability)." (Enumeration of
     questions added for clarification.)
          Section 60 of Article III of the Constitution of
Texas provides that the Legislature has power to pass laws
necessary to provide Workmen's Compensation Insurance for
all county employees. Article 8309~ of Vernon's Civil
Statutes provides Workmen's Compensation for all county
employees and adopts liability provjslons of the general
Workmen's Compensation statutes Including Article 8306
and 8307.
          In answer to vour first auestion,.it is our
opinion that the term "self-insuring" as.applled to
counties refers to the status of a county which has adopt-
ed the Act (Article 83ogc) and chooses to carry Its own
risk of liability as opposed to purchaslng.coverage of
this risk under the Act from a private carrier.
          In answer to your second question,.it Is hour
opinion that the Legislature did not intend that counties
which elected to become self-insurers or subscribers under
Workmen's Compensation Act should be deprived of their
common law defenses nor have their risk of livability
enlarged by theirchoice of nonparticipation. In answer
to your second question,~it is noted that Section 6 of
Article 83ogc, although adopting certain provisions of
Article ~8306, Vernon's Civil Statutes, "insofar as appli-
cable," did not adopt.Section 4 of.that Article. Section
Aprovides for the rights of employees whose employers
are not subscribers to that Act. Section 4 further pro-
vides that such an employee may bring suit against and
recover damages from an employer to whom that Act applies.
Said Section 4 further states, "and the provisions of
Section 1 of this law shall be applied in all such actions."
Section 1 provides for the abolition of the common law
defenses of contributory negligence and assumed risk. It
is our opinion that by not adopting Section 4 of Article
8306, the Legislature did not Intend that counties who


                         -3588-
Hon. Gene Russell, page 3 (c-744)


elected not to become a self-insurer or subscriber under
the Act should be decrlved of their common law defenses.
ppwell v. City of Sweetwater, 341 S.W.2d 66: (Tex. Civ.
   . 961, error ref.)
          In answer to your third question, It Is our
opinion that the authorization for a county to set aslde
up to 5s of the annual employee payroll is a financing
provision and has nothing to do with liability. If adop-
tion of the Act is voted by a county, then the statutory
provisions shal~lbe applicable to that county, and the
county Is charged with the administration of the Act.
61 Tex.Jur.2d 546, 320.  All liability provisions.either
set forth specifically by the Act or adopted by the Act
from the general Workmen's Compensation provisions are
applicable to the county and it is charged with admlnis-
trationof those liability provisions.


          The term "self-insuring" as applied to
     counties refers to a county which has adopted
     Article 83ogc and chooses to carry Its own
     risk of liability under the Act rather than
     purchase coverage of that risk from a private
     Insurance company.
          ~Countieswhich do not adopt the Act are
     not deprived of common-flawdefenses, and their
     liability Is not affected.
          ~Theauthorization by the Act for a county
     to set aside up to 5% of the annual employee
     payroll Is a financing provision and has nothing
     to do with .llablllty.
                               Yours.very truly,
                               WAGGORER CARR
                               Attorney General of Texas


                              g : r-2..,~Z<,,
                                  Gordon Houser
                                    Assistant Attorney General
GH:sck
                           -3589-
.   .




        Hon. Gene Russell, page 4    (C-744)



        APPROVED:
        OPINION COMMITTEE
        W.   V. Geppert, Chairman
        W. 0. Shultz
        Wade Anderson
        Malcolm Quick
        Paul Phy
        APPROVED FOR THE ATTORNEY GENERAL
        BY: T. B. Wright




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