Case Information

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The Attorney General of Texas Mar 91 10, 1986

JIM MAlTOX

Attorney General Honorable Rane A. Gucrra Opinion No. Ju-447

Suprema GxWt BUlldlnQ Criminal District Attorney P. 0.80x 1254S Ridalgo County Courthouse ~ustm. TX 7871% 2548 Re: Whether a county may pay em- 51214752501 Edinburg , Texas 78539 ployecs injured on job differ- Talea 9101074-1357 ence between their regular salary and 1aiecopiar 512l4750286 their workers’ Dear Mr. Guerra: 714 Jackson. Suit0 700 Oaltaa, TX. 75202.4508 214/742+.944

You question the constitutionality of a current practice

Ridalgo County o:I paying injured county employees the difference between their workers’ and their You 4S24 Alberta Ave.. Suite 180 also ask whether an injured employee ma9 receive accrued sick El Paso. TX. 799052793 915/53%34S4 and vacation 1eaT’c’ in addition to workers’ compensation benefits.

Your coucern focuses on provisions of the Texas Constitution which prohibit grants OX loans of public money. See Tex. Const. art. III, - 1Wl Texas. suite 700 #551. 52, 53. “ouston. TX. 77002.3111 713l223.5888 Counties havlr. only those pavers that are granted expressly that must be implted from the authority granted or duties imposed by 808 Broadway, Suite 312 Texas Constltrltion or statutes. Canales v. Laughlin, 214 S.W.2d Lubbock. TX. 79401-3479 451. 453 (Tex. 191;8). Accordingly, your questions require considera- SOW747.5235 tion of grants of authority as veil as constitutional limits on its exercise. As wil:. be shown, the present constitutional authority 4309 N. Tenth. Suite 6 counties to provide workers’ compensation benefits was adopted beceuse McAllan. TX. 78501-%S5 of the constitutic~moal limits about which you ask. A brief background 5121882.4547 these provlsiDns must precede our response to your specific questions. 200 Ma,” Plea, Suite 400

sari Antonlo. TX. 7S2052797 Article III, section 52 of the Texas Constitution prchibjts 51212254191 counties from makjng grants or loans of money or of any other thing of

value. See also Ift?x. Const. art. III, 551. Because a county is not inherently liable ,for injuries its employees, 52 at one section An Equal OpportunitYl Afllrmatlve Action Employer time prevented cslntles from providing any workers’ its employees. See Attorney General Opinion O-5315 Section 60 was added to III in 1948 in part

overcome effect of section 52. ITI, section 6C of the Texas Constitution provides:

WORKPEN’s COMPENSATIO?? INSQTMCE FOR EHPLOYEES OF COUNTIES AND OTHER POLITICAL. SUBDIVISIONS. The *2 Eonorable Rene Guerra - l?rrge 2

Legislature shell have to pass such laws the power as may be necesmry to enable all counties and other political eubdivisiona of this State to pro- vide Workman’s Compensation Insurance, includiog right to pmride its own insurance risk, for all amployees o!i county or political sub- division as in its judgment is necessary re- quired; end the Legislature shell provide suitable laws for the admtinistration of such insurance the counties or pollticel subdivisions this State and for tt,e payment of the costs, charges sod premiums on t,uch policies of insurance and the benefits to be pr,id thereunder.

In 1973 legislature made workers’ compensation mandatory for See Acts 1973, 63rd Leg., ch. 88. 517, at all political subdivisions. 198 (codiffed as V.T.C.S. &.309h); Attorney General Optnion E-338 Section 2(e) of article 8309h provides:

All political subdlvisioos of this state shall become, either !self-insurers, provide insurance under workmao’s compensation insuraoce contracts or anter into interlocal agreements or policies, with other political subdivisions providing

self-insurance, clxtending workmen’s compensation benefits to their smployees.

Ridalgo County presently grwldes workers’ compensation insurance its amployees through the Texas Association Counties Workers’ Compensation Self-Insurance Fund.

Workers’ compeosatioa are Intended retmburse an employee for loss of earning capacity caused by work-related injuries, Bullerd v. Universal Undengriters Insurance Company, 609 S.W.2d 621, 626 (Ter. Civ. App. - AmarZllo 1980, no writ), not for loss of salary.

See El Paso County v. JeE!C!. 699 S.W.2d 375. 377 (Tex. App. - El Phso 1985, 00 writ). 8309h and the general workers’ com- pensation statutes it makes applicable to counties, see 13, specify formulas for deta!rmining the amount of compensationdue an injured employee. These formulas are based upon the nature and duration of the l mployee’c, injury and upon the employee’s salary. The workers’ compensation stat,utes applicable to counties do cot authorize counties discretion. additional for loss to pay, at thefr of earning capacity eausecl by a vork-related injury. Because counties have only expressly grsnctrd or neccsserlly implied powrrs, we must determine vhrther any other statutes authorize the payment of between an aq:loyee’s worker’s compensation benefits and *3 . Aouorable Rene A. Cucrrr - :Pcgc 3 (a-447)

Article 3912k, section 1, V.T.C.S., authorizes the conmissioners court of each county to

fix amour& of compensation, office expense, travel expense, and all other l llovances

county and prec:inct officials end employees who are paid wholly from county funds. . . .

As vi11 be shown, additional workers' could be viewed not as workers' cor:pensatlon benefits per se, but as an element this of an employees pre-establlshcd, regular coqansation. E 1 though the county to "fix aunt of compensation," provision authorizes it does not authorize p;byments which are prohibited by statute or which amount to gifts or S.rants of public money in violation of con- stitutlonal prohibitions.

Authorities which coosidar sitilar types of payments distinguish between an ex post facto decision to award extra brnefits and a prospective decision to mdre certain extra benefits a standard part of compensation. See, e.g. :, City of Corpus Chr3cit.i v. Herschbarh, 536 S.W.Zd 653 (Tex. Clv. App. - Corpus Christi 1976. vrit ref'd n.r.e.); Attorney General Opinion E-51 Your request l~etter reveals that Hidalgo County has followed an informal practice of granting extra ss jndividusl injuries occur and that it now proposes to make this extra compmsation part of a standard policy.

As will be shown in the discussion to follov, the Texas Constitution prohibits a retroactive award of the differrnce betveen an injured county employee's workers and his

Attorney General 0p:inion E-51 dealt with the effect sections 51, 52, acd 53 of article IT1 on payments by tbr county cf certain benefits to the beneficiaries of s deceased county anplopee. The opinion determined ttst because the commissioners court lacked constitutional or statutory authority to provide retroactively death banoflts. actic'n constituted an unconstitutional grant gift public money. issue in Attorney General Opinion E-51 is ‘Ihe analogous to the instant one.

Although Attorney General Opinion B-51 did not rely explicitly upon artfcle III, sect3on 53, ve believe that section 53 is par- ticularly relevant case at haod with regard to retroactive awards of the benefits :;n question. III, section 53 of Texas Constitution provides:

COUNTY OR MUNICIPAL AUTHORITIES; EXTRA C@MPEN- SATION; uNAuTalx.IzED The Legislature CLAIMS. shall have no power to grant. or to authorize any county or municipal authority to grant. any extra fee or allowarxe a public *4 Ronoreble Rene A. Guerre - Page 4 after

officer, agent, servant or coatrector, service has been rendered, or a contract has been entered into, ml performed in whole or in part; nor pay, uor aUth~DTiZe the payment of, any claim created age&et my county or semicipality the made under my agraenent contract, State, vithout suthoritl, of lsv.

Consequently, we believe that retroactive payments by the county of additional benefits, vbich are measured by the difference between an injured employee’s workers’ compensation benefits under article 83C9b and the employee’s salary, are prohibited by the Texas Constitution. that situation in Aidalgo County

You indicate. however, requires consideration both and prospective payments of the between ao employee’ s workers’

and regular salary. The court in City of Corpus Christ1 v. Ferschbach suggested that the receipt of “extra” workers’ compensation benefitrr, which are authorized by s’tatute, might be authorized as part of the employee’s pre-established, 536 S.W.2d st 657; see also El Paso County ‘1 Jeffers, 699 S.W.2d 375 (Tex. App. - El Paso 1985, DO writ); Actcrney General Opinion g-860 There- the payments woulti not constitute “extra compensation” fore, violation of article III. rrectioo 53 of the Texas Constitution. 699 S.W.2d st 377. Ntverthelc:ss, the court suggested, in dicta, that a 1975 amendment, which requires offset for certain benefits, to article 8309h might prevent suck. payments extra workers’ after 1975. Id. -

The legislature amendted section 5 of article 8309h in 1975 to provide for offset. See A,cts 1975. 64th Leg., ch. 404, Il. at 1041. Section 5 of statu=currently provides, in part:

(a) It is tl,e purpose of this article that the compensation herlein provided shall be paid from veek to we&k sod as it sccrues and directly thereto, entitled unless persoo liability is redeemed as in such cases provided elsewhere herein. Provided further, however, that any and all sums for incapscity received in accor- dance vith Chap& 325, Acts of 50th Legisla- ture, 1947, as-smended (Article 1269m, Vernon’8 Texas Civil Stacttes), and any other statutes now in force and ef’iect that provide for payment for to r,ork because of injury on the job -- is also co&ed by this Act are hereby offset ss sgainst the Ikefits provided under this Act to Provided that wheo an the extent apr;iicable. employee’s wag@? is offset as prescribed above, both the employer and employee shall pay Into *5 , (Jn-447) Honorable Rene Guerrs - 'Page 5

the pension fuod cm the mount of money by vhich his wage Y(LE offset end provided further that under no circumstances shell ao employee's pension benefit be reduccid, 8s a result his injuries

any compensation xeceived under provision of this Act, unless isuch reduction is s result a pension revision ,paesed by mjority vote of the affected members Iof a pension system. (Emphasis added).

V.T.C.S. art. 8309h. S5(a).

The phrase in sectiot ?(a) vhicb causes concero is the one which requires offset of sums received for izcapaciry in acccr&nce with “any other statutes now in force and effect that provide for payment to vork because of injury on the job" vheo that injury is also covered by artlclr 83C9h. Article 3912k wss "in force and effect" at the t1r.e section S(a) was amended in 1975. See Acts 1971, 62nd Leg., ch. 622, at 20119. Thus. we must deeern&zhethtr benr,f its, which sre measured by the difference payment of additional between an iojurad wloyr,as workers' coqensation benefits and employee's salary, pursuant to article 3912): falls b*thin "any other statutes" within the waoinS of article 8X9t. section 5.

The bill analysis to the anendaent requiring offset states background and purpose of ,:he amendment as foliovs:

Present law 1:; not clear that workmen's coven- sation beoefits are paid lo lieu of, and not addition to, statutory paymeots made for other vcrk-related ioc apscity .

This bill vou1.d insure that payments ,pde work-related locapacity under other itatutory plans sre credited agaiost amounts due btiuder the Workmen's Cospenmtion Act. Section 1 ammds Arttcle 83C9b to ensure

vorkmen's co~ensation payneots are lessened by amounts paid under other statutory plans.

Bill Analysis to S.B. ND. 828. prepared for Senate Commirtce on Economic Development, filr:d. in Eill Pile to S.B. No. 828, Legislative Reference Library. Psynle.nts of additional benefits, which are measured by the difference between workers' coqensation and salary, that are xnade parsuant to article 3912k as part sn employee's pre-establishei;, regular salary are arguably payTents aade for work-related incapacity under other statutory plans. *6 (Jn-447)

Ronorable Rene Guerra - :?trge 6 In ~1 Paso Couoty v. Jeffers. e. however, the court suggested that section 5 of article 8309hwas intended to offset only existing statutes which speciflcaL:Ly provided for worker's coinpensstioi The court atsted: beneflte.

[Alo 8309h offsef: aupliee to funds for deceived pureuanf to-the firemen's and policexen'b civil service prEvisiona 'and soy other statutes now in force and-effect.' We have beau cited to no offset etatut; applicable to deputy sheriffs.

The reauirement t&t deoutv sheriffs receive their *maxi&w salary' while incapacitated from Injuries received in the course of their duties is provided for by the Taxas Coostltucioo. It is fundamental that the Constitution is the paramount law of the state and csnnot 'be altered by legislstive smend- [citation omitted]. On its face, meats.

statute cited 12 Appellant does not apply deputy sheriffs, and if It did it would be in con- flict with=Texas Coostitutioo. The Appellant was in error in ~:lsiming an offset under srticle (Emphasis added). 8309h. In oth'er vords the court suggests that section 5

699 S.W.2d st 377. of article 8309h was intended to require ooly offset of specific workers' compensation sts1:utes such as article 1269m. Article 3912k. in contrast. provides fsor the general of county employees. reimburse loss cf earning

Workers' 699 S.W.2d at 377. Payments uoder capacity, not for loss of isalary. article 3912k can be dis,tingulshed ss reimbursement loss of Consequently se&too 5 of article 8309h does not prevent the county frompaying the dif,ference between injured employees' worker's compensation'" benefits acd their salaries as part of employees' pra-established,, overall compensation under article 3912k.

You also ask whether, sn injured employee may receive sick leave and vacation .~dditioo to vorkers'

without violating 6309h or sections 51. 52, and 53 of article III of the Texas Constitution. As indicated, Attorney General Opinion H-51 determined that ret::oactive payments of death benefirs were not authorized by the Texas C,onstitutioo or ststutes and that they there- fore constituted unconstitutional grants or gifts of public funds. The opinion distinguishtd unused vacation time aod other forms of accrued Because these types compensation were authorized aod had alreod:y been earned, payment such benefits survivors vas not deemed an unconstitutional grnnt. The same con- siderations apply to payment for the unused sick leave and vacation time that an injured county employee has already earned; therefore, *7 .

Honorable Rem A. Gucrro - Page 7 do not viola’to the Texas Corzstitution. Conaequenriy. such payments the county is not prohibp:trd from paying an injured county employee accrued sick leave and vacation leave addition to workers’ in compensation benefits.

SIJMMARY Hidalgo Cour.ty may not make lnjwed county employees extra payments workers’ compenwtion benefits measured by the betwren their workers’ benefit; under article 8309h. V.T.C.S., and their If the (county makes additloul workers’ a part of county employees’ pre-established, compensation under 3912k. the benefits need not be offset against the benefits provided under article 8309h.

The county is not prohibited from paying an injured employer: accrued sick leave and vacation add5 t ion to workers’ benefits.

Very truly your Jkh

. JIM NATTOX Attorney General of Texas JACK HIGBTOWRR

First Assistant Attorney Central

MARY KELLER

Executive Assistant Attorney General

ROBERT GRAY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Conunittl;a

Prepared by Jennifer Rigg:3

Assistant Attorrey General