Office of the Bttornep @enera
&ate of aexas
DAN MORALES
ATTORVEI
GENERAL August 12,1993
Arnold W. Oliver, P.E. OpinionNo. DM-241
Executive Director
Texas Department of Transportation Re: whether truckers hauling materials on
125 East 1lth street and onto Texas Department of Trans-
Austin, Texas 78701-2483 portation wnstruction sites are required to
he covered by worked wmpensation
Honorable James E. (Jim) Nugent illmance (RQ-471)
commissioner
Railroad Commissionof Texas
P.O. Box 12967
Austin, Texas 7871l-2967
Dear Mr. Oliver and CommissionerNugent:
You each ask whether the Texas Department of Transportation (“TxDOT”) may,
or must, require that truckers hauling materials to and onto TxDOT construction sites
carry workers’wmpensation insurance.
Article 8308-3.23. V.T.C.S., a provision
of the Texas Workers’Cnmpen&on
Act, provides in part:
(c)Inabuildingorwnstrwtion*wntractenteredintobytbis
state or a political subdivisionof this w including a municipality~
thegovemmentalwtityshallrequirethewntractortocatifyin
writing that the contractor provides workers’wmpewation iwuranw
coverage for all employees of the wntractor employed on the public
project. A subwntractor on the project must provide aucb a
certiiicate to the general contractor relating to the coverage of the
employees of the subwntractor. The general w&actor shall
provide the certificate of a subcontractor to the governmental entity.
A contractor who has a contract that rewires workers’wmpenmtion
‘Subsution (d) of micle 8308-3.23. V.T.C.8, &lines %dldiq or commaion- to iaclode
“ela4ingorprqbngloaeclrtnrcturcq includingtnlildings,bridges,rodway& poblic utilityfacilities,
mrclwdrpputcnanm’;“lanodcling.~rrpeiring,ardcmolirhinga~~;or’othrwirc
irnpwiqmlpmpcttyorapputcnanccr to teal plopcny thlwgh similar activities.” we asaonx for
prrgaasofthisopinioatbMthcTxDoTprojMsyourefntoconsti~e”buildingor~~“within
the meaningofarticle 8308-3.23, V.T.C.S.
p. 1244
Arnold W. Oliver, P.E. - Page 2 (DM-24 1)
Honorable James E. (rim) Nugem
insurance coverage may provide the coverage through a group plan
or other method satisfactory to the governing body of the
governmental entity. j’Pcomoteadded.]
A brief submitted in wwection with your rquests argues that a provision of
article 91 lb. V.T.C.S.. an act perminiq generally to motor carriers, allows motor carriers,
even when employed on public projects within the rntig of V.T.C.S. article 8308-3.23.
the option of protiding “accidents) insurance coverage” in lieu of the “workers’
wmpelmtioninsumnw coverage”requbtd by the latter provision. Section 13 of article
911bprovidesinpatt:
Jz.achmotor canier shall also protect his employees by obtain&
worked wmpensation insumnw coverage as de6ned under the
Texas Workers’ Compensation Act (Article 8308-1.01 ef. seq.,
Vernon’sTexas Civil Stamtcs) or accidental insmwce WVU@CiIlUl
amount fixed by the [Railroad] Commissionhm a reliable insumnw
company or companies authorized to write such policies in this state
approved by tbe [Railroad] Commission.
The language regsrding “accidentsl insurance coverage”was added to section 13 in 1991.
Acts 1991,72d Leg., ch. 894,g 1. at 306041.
The above-mentioned brief contends that the provisions of atticle 911~which
allow motor carriers the option of providing either workers’wmpensation or “accidental
insumnw” wverage-should. being specific to motor carriers, and moreover the more
recent@ enacted, be wnstrue-d to prevail over the provisions of article 8308-3.23. which
are gewraUy applicable to public works building and wnstruction wntractors. We
disagree. While the legislature has seen fit to provide in article 91 lb that motor carriers
genera& may opt to carry either workers wmpensation or “accidental insurance”
coverage, we do not believe that provision was intended to preclude application of more
stringent statutory requirements regarding insurance to motor carriers in particular
contexts. In our opinion, the legislature has indicated an intent in article 8308-3.23 that all
wntract workers on the public works projects wvered by the article have workers’
wmpensation coverage.
Thebriefaloostatesthat’motorcarriaoinmost,ifnotall,csseswillbew
independent wntractor as defined in article 8308-3.05(a)(l).” and suggests that “motor
carriers defhmd as independent contractors do not have to provide workers’wmpensation
insurance coverage normally required under article 8308-3.23.”
In our view, the purpose of article 8308-3.05 is generally to charadaize
employment relations as being ones of either employer-employee or employer4tdepwdent
contractor. These diiinctions are important since employers have various duties to
“employees” under the workers’ compensation act that they do not have when the
p. 1245
Arnold W. Oliver, P.E. - Page 3 (DM-241)
Honorable James E. (Jii) Nugent
employment relation is one of employer-genera) contractor. See, e.g., V.T.C.S. arts.
8308-3.08 (employee election), 8308-3.24 (notice to employees whether wvered),
83084.01 (recovery by employee). Subpart (a)(l) of article 8308-3.05. to which the brief
rde-rs, defines “independent contractor” by setting out tather standard legal elements of
the independent wntractor relationship. With regard to transportation workers, subpart
(a)(4) defines an “owner operator”as “a person who provides trwsportation setvices for a
motor carrier under wntract,” and provides that “[a]n owner operator is an independent
wntractor.”
Contrary to the suggestion in the brief, we do not believe that article 8308-3.05
creates any exceptions to the workers’compensation wverage requirements of article
8308-3.23. J.nour view, in requiting “generalwntractors” and “sub-wnt.ractom”to show
proof of coverage for those who will work on the project, the legislature intended to
include all wntract workers under the wverage rquirement includingthe “wntractors” or
“sub-wntractors” themselveswhen they are in fact “employedon the public project.” Id.
art. 8308-3.23. While chsractexiaationof a particular worker, based on the provisions of
article 8308-3.05. as an “independent wntractor” rather than fan “employee” may
determine who is responsible for providing workers’compensation wverage for the
worker under article 8308-3.23. it does not, in our opinion, relieve anyone from the
coverage requirement includmg the “wntractors” or “subwmractors” themselves when
they are in fact “employed on the public project.” If the worker is an “employee,”his
employer is responsible for providing wverage. Jf he is an *independentwntractor,” he
himselfis ultimately responsible.2
Since we conclude that workers’compensation wverage is mquired, we need not
address the part of your question which asks whether TxDOT hss discretionary authority
to reguire truckers hauling materials on TxDOT projects to carry workers’wmpwsation
insumnw.
%ee,e.g.,id. art.8308-3.05(g)(“motorauric~ md’ownerop~ralO~ maya~chtformerarill
pluvidecovaage for bltm).
p. 1246
Arnold W. Olivex,P.E. - Page 4 (DM-241)
Honorable James E. (Jii) Nugent
SUMMARY
Ttuckers hauling materials on and onto Texas Department of
Transportation cons&a&on sites an required, under tick
8308-3.23, V.T.C.S., to be covered by workers’ compensation
insuranw.
DAN MORALES
Attorney General of Texas
WILL PRYOR
PiiAssismmAtmmeyoeneral
MARYKELLER
Deputy Attomey Cienexalfor Litigation
RENEAHIcRs
state solicitor
MADELEINE B. JOHNSON
Chair, Opinion Committee
Preparedbywilliamwalker
Assistant Attorney Oerural
p. 1247
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