dissenting.
I respectfully dissent.
The 1973 amendment to Article 8306, section 8,1 which provides death benefits under the Texas Workers’ Compensation Act made a significant change in the benefits which the surviving beneficiaries may recover. This progressive legislation provides extensive substitute income for the surviving beneficiaries in lieu of the limited and fixed weekly benefits provided under the former statute. In carrying out the legislative intent that the beneficiaries have the substitute income on a regular basis, the statute expressly limits the conditions wherein a lump sum payment can be made to two situations which are not applicable here.
Prior to 1973, Article 8306, section 8, provided for payment to the beneficiaries for the specific period of 360 weeks. Now there is no fixed or limited number of weekly payments, but rather the statute provides for weekly benefits until the surviving widow dies or remarries; and the minor children are provided for during their minority, until they reach the age of 25 years if attending school, or so long as they are dependent. To further this legislative intent of providing substitute income to the surviving widow and dependent children, the 1973 amendment expressly provides that the benefits payable to a widow or children shall not be paid in a lump sum except (1) in the event of remarriage,2 or (2) where there is a bona fide dispute as to the liability of the association. The latter provision requires that any settlement of such a disputed case must be approved by the Industrial Accident Board or court upon an express finding that a bona fide dispute exists as to such liability.
It is established that the maxim expressio unius est exclusio alterius applies to the construction of statutes. Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652 (1923). Application of this rule here shows the legislative intent that the benefits not be paid in a lump sum in other than the two stated situations. This legislative intent is further demonstrated by the fact that the two situations wherein a lump sum payment can be made are both situations where the amount of benefits to be received by the beneficiaries is fixed in a certain amount or can be determined precisely. The intent that surviving beneficiaries be paid only in weekly benefits is further illustrated by the fact that the legislature did not provide any means for determining the amount of future benefits recoverable. Life expectancy tables, although not mentioned in the statute, do give a guide for the life expectancy of a surviving spouse. However, there probably is nothing more uncertain than the chances of, or the time for, the remarriage of a widow or widower. Furthermore, as *793long as there are minor children there is a possibility that one child might become dependent and thus entitled to benefits for the balance of that dependent child’s life. A prior lump sum payment would deprive that child of benefits it otherwise would receive.
The majority opinion correctly points out that the statute does not expressly repeal Article 8307, section 5a. This statute, which was enacted in 1917, authorizes an injured employee or his beneficiaries to mature the entire claim where the association fails or refuses, without justifiable cause, to make the weekly or monthly payments promptly. This statute is thus inconsistent with those provisions of Article 8306, section 8, which limit lump sum payments to the two stated exceptions.
It is a well-recognized rule of construction that in the event of inconsistency between two statutes, the statute enacted more recently must control since it is the latest expression of legislative will and intent. Allied Finance Company of Bay City v. Falkner, 397 S.W.2d 846 (Tex.1965). This rule is particularly applicable here in that the more recent statute deals specifically with the death benefits payable under a new scheme of providing substitute income to cover the lack of income caused by the death of the employee. It is a fundamental rule of construction that a general provision must yield to a succeeding specific provision. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948). This rule has particular significance where, as here, the specific statute makes a substantial change from the compensation scheme in effect since the general statute was enacted in 1917.
Although this Court has never construed this 1973 revision, I believe what was said in Texas Employers Insurance Association v. Motley, 491 S.W.2d 395 (Tex.1973) is applicable to the question before us. There the Court was considering the power of the trial court, as opposed to the power of the Industrial Accident Board, to order attorney’s fees paid in a lump sum although the employee was required to be paid in weekly installments after the jury failed to find a manifest hardship as required by Article 8306, section 15. This Court held that the trial court had the power although the Board did not and said:
“One reason for this is that when there is no death claim and when recovery is based on an award of the Board for a general injury, the total amount that the insurance company is to pay in installments may not be definitely ascertainable at the time of the award. The Board retains the right to modify the award. Moreover, if the employee dies before he receives all of the compensation awarded him in weekly payments, the cases say that the liability of the insurance company ceases; i. e., the unmatured portions of the claim are extinguished by his death. Texas Employers Ins. Assn. v. Phillips, 130 Tex. 182, 107 S.W.2d 991 (1937). Since this is so, the portion recoverable by the attorney may not be ascertainable with certainty at the time of the Board’s award. Hence a lump sum recovery to the attorney would present problems.
“On the other hand, if the compensation is based upon a judgment in court, which judgment has either become final or is affirmed, the amount awarded by the court does survive the workman’s death and is not subject to modification or reduction. Bailey v. Travelers Insurance Co., 383 S.W.2d 562 (Tex.1964). The attorney’s fees, therefore, may be fixed or approved with certainty by the trial court in the light of the amount which will be recovered by the workman or those claiming under him.” (Emphasis added).
I believe this reasoning when applied to the question before us explains why the legislature expressly provided that the death benefits could not be paid in a lump sum unless the widow remarried or a disputed liability case was settled. Prior to the 1973 revision of the death benefits, these benefits were fixed at 360 weeks. Now they are indefinite, uncertain, and not *794capable of precise determination. Death benefits are the only benefits recoverable under the Worker’s Compensation Act that are not subject to a maximum time period. This could explain why the legislature limited the authority for a lump sum payment under the new statutory scheme for death benefits.
I agree wholeheartedly with the legislative intent of Article 8307, section 5a, that the association should be penalized for failing to make the weekly payments on time. However, if the 12% penalty on the weekly payments which were not timely paid plus reasonable attorney’s fees is not an adequate penalty, the legislature should amend the statute to increase the penalty. I do not believe we should attempt to do so by a judicial construction of the death benefits statute contrary to the expressed intent of the legislature in Article 8306, section 8. I would limit the penalty and attorney’s fee to the weekly payment benefits which were not timely paid by petitioner.
STEAKLEY, POPE, and DANIEL, JJ., join in this dissent.
ON MOTION FOR REHEARING
STEAKLEY, POPE and SPEARS, JJ., join in this dissent.
. All statutory references are to Texas Revised Civil Statutes Annotated.
. Article 8306, section 8, provides that in the event of remarriage a lump sum payment equal in amount to the benefits due for a period of two (2) years shall be paid to the widow or widower.