The Scholar: St. Mary's Law Review on Race and Social Justice


Texas’s nonsubscriber law precedence and interpretation directly conflict with the plain language and legislative intent of Texas Labor Code § 406.033. The purpose of § 406.033 is to protect injured workers and to encourage employers to subscribe to the state’s workers’ compensation system. Texas, however, allows employers to opt-out. Employers who elect to opt out of the workers’ compensation system are called “nonsubscribers.” By making this decision, nonsubscribers save on the cost of paying premiums for worker’s compensation, but potentially expose themselves to total liability against injured employees who can prove his or her employer breached one of their defined duties in a negligence cause of action. Mindful that § 406.033 was intended to serve as a “penalty” statute, textual examination of § 406.033 and the past four Texas Supreme Court nonsubscriber cases, however, demonstrates readily apparent inconsistencies between legislative intent and judicial interpretation. The Texas Supreme Court’s interpretation of § 406.033 favors the employer. The Court incorrectly holds that assumption of the risk and contributory negligence preclude a breach of duty owed to an injured employee. This faulty analysis erroneously shifts the focus of the inquiry from the defendant’s actions to the plaintiff’s actions. Furthermore, it was never the legislature’s intent to include the defenses of assumption of the risk or contributory negligence into § 406.033. Therefore, Texas courts should stop manipulating these defenses in order to apply them in nonsubscriber cases. Texas employers that are nonsubscribers, and not the general public, should bear the financial burden of medical costs of their injured employees, due to the employer’s negligence.

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St. Mary's University School of Law



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