Do truckers hauling materials to a Texas highway construction site have to carry workers' compensation insurance?

Plain-English summary

When the state hires a contractor to build a road, the law requires proof that the workers on the job are covered by workers' compensation insurance. The Texas Department of Transportation and a Railroad Commissioner asked the Attorney General a practical question: does that requirement reach the truckers who haul materials onto a TxDOT construction site, or can they slide by because they drive for motor carriers or work as independent owner-operators?

The Attorney General said the truckers are covered, and have to carry the insurance. The state public-works law, article 8308-3.23, tells the government to get written certification that contractors and subcontractors carry workers' compensation for everyone employed on the project. A brief argued that a separate motor-carrier law lets trucking companies choose plain "accidental insurance" instead of workers' compensation, and that this newer, trucker-specific option should win out. The Attorney General rejected that. The motor-carrier option does not cancel the stricter public-works requirement; the Legislature wanted everyone working on these projects covered by workers' compensation.

The brief also tried the independent-contractor angle: most truckers are independent contractors, so (the argument went) nobody has to insure them. The Attorney General explained that the independent-contractor rules only decide who is on the hook for the coverage, not whether coverage is required. If the trucker is an employee, the employer provides it. If the trucker is a true independent owner-operator, the trucker himself is ultimately responsible. Either way, coverage is mandatory. Because the answer was that coverage is required, the Attorney General did not need to decide whether TxDOT also has discretion to require it.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas Workers' Compensation Act (then V.T.C.S. article 8308) has since been recodified into the Labor Code, and the motor-carrier statute (then article 911b) has changed, so the article numbers described here no longer apply; confirm current law before relying on anything described here.

Background and statutory framework

Article 8308-3.23 of the Texas Workers' Compensation Act provides that in a building or construction contract entered into by the state or a political subdivision, the governmental entity must require the contractor to certify in writing that it provides workers' compensation coverage for all employees employed on the public project; a subcontractor must provide such a certificate to the general contractor, who provides it to the governmental entity. Subsection (d) defines "building or construction" broadly to include erecting, altering, repairing, or demolishing structures (buildings, bridges, roadways, public utility facilities) and similar improvements. The Attorney General assumed the TxDOT projects qualify.

A brief argued that article 911b, the motor-carrier statute, allows motor carriers to provide either workers' compensation or "accidental insurance" coverage. Section 13 of article 911b requires each motor carrier to protect its employees by obtaining workers' compensation coverage as defined under the Workers' Compensation Act, or accidental insurance coverage in an amount fixed by the Railroad Commission; the "accidental insurance" option was added in 1991 (Acts 1991, 72d Leg., ch. 894). The brief contended this more specific and more recent provision should prevail over article 8308-3.23. The Attorney General disagreed, concluding the article 911b option was not intended to preclude more stringent insurance requirements in particular contexts and that article 8308-3.23 reflects an intent that all contract workers on covered public works projects carry workers' compensation coverage.

The brief also argued that motor carriers are usually independent contractors under article 8308-3.05(a)(1), and that owner-operators are defined as independent contractors under (a)(4), so they need not be covered. The Attorney General concluded that article 8308-3.05 exists to characterize employment relationships as employer-employee or employer-independent-contractor to determine duties under the act, not to create exceptions to the 8308-3.23 coverage requirement. Requiring general contractors and subcontractors to show proof of coverage for those who work on the project, the Legislature intended to include all contract workers, including contractors or subcontractors themselves when they are in fact employed on the public project. If the worker is an employee, the employer provides coverage; if he is an independent contractor, he himself is ultimately responsible. Because coverage is required, the AG did not reach whether TxDOT has discretionary authority to require it.

Citations

• V.T.C.S. art. 8308-3.23 (Texas Workers' Compensation Act; governmental entity must require certification of workers' compensation coverage for all employees on a public building or construction project; subsection (d) defines "building or construction")
• V.T.C.S. art. 8308-3.05 (characterizes employment relationships as employer-employee or employer-independent-contractor; (a)(4) defines "owner operator" as an independent contractor)
• V.T.C.S. art. 911b (motor-carrier statute; section 13 allows workers' compensation or, since 1991, accidental insurance coverage in an amount fixed by the Railroad Commission)

Common questions

Do truckers hauling materials onto a TxDOT site need workers' compensation?
Under this opinion, yes. The Attorney General concluded that article 8308-3.23 requires all contract workers on covered public works projects, including these truckers, to be covered by workers' compensation insurance.

Can a trucking company use "accidental insurance" instead?
Not on these public works projects. Although article 911b lets motor carriers generally choose accidental insurance instead of workers' compensation, the Attorney General concluded that option does not displace the stricter article 8308-3.23 requirement.

Does being an independent contractor get a trucker out of coverage?
No. The Attorney General concluded that the independent-contractor rules in article 8308-3.05 only determine who is responsible for the coverage, not whether it is required. An independent owner-operator is himself ultimately responsible for his coverage.

Did the opinion decide whether TxDOT could require coverage as a matter of discretion?
No. Because the opinion concluded coverage is required as a matter of law, it did not reach the separate question whether TxDOT has discretionary authority to require it.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0241
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0241.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 12, 1993

Arnold W. Oliver, P.E.
Executive Director
Texas Department of Transportation
125 East 11th Street
Austin, Texas 78701-2483

Honorable James E. (Jim) Nugent
Commissioner
Railroad Commission of Texas
P.O. Box 12967
Austin, Texas 78711-2967

Opinion No. DM-241

Re: Whether truckers hauling materials on and onto Texas Department of Transportation construction sites are required to be covered by workers' compensation insurance (RQ-471)

Dear Mr. Oliver and Commissioner Nugent:

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' compensation insurance.

Article 8308-3.23, V.T.C.S., a provision of the Texas Workers' Compensation Act, provides in part:

(c) In a building or construction¹ contract entered into by this state or a political subdivision of this state, including a municipality, the governmental entity shall require the contractor to certify in writing that the contractor provides workers' compensation insurance coverage for all employees of the contractor employed on the public project. A subcontractor on the project must provide such a certificate to the general contractor relating to the coverage of the employees of the subcontractor. The general contractor shall provide the certificate of a subcontractor to the governmental entity. A contractor who has a contract that requires workers' compensation insurance coverage may provide the coverage through a group plan or other method satisfactory to the governing body of the governmental entity. [Footnote added.]

A brief submitted in connection with your requests argues that a provision of article 911b, V.T.C.S., an act pertaining generally to motor carriers, allows motor carriers, even when employed on public projects within the meaning of V.T.C.S. article 8308-3.23, the option of providing "accidental insurance coverage" in lieu of the "workers' compensation insurance coverage" required by the latter provision. Section 13 of article 911b provides in part:

Each motor carrier shall also protect his employees by obtaining workers' compensation insurance coverage as defined under the Texas Workers' Compensation Act (Article 8308-1.01 et. seq., Vernon's Texas Civil Statutes) or accidental insurance coverage in an amount fixed by the [Railroad] Commission from a reliable insurance company or companies authorized to write such policies in this state approved by the [Railroad] Commission.

The language regarding "accidental insurance coverage" was added to section 13 in 1991. Acts 1991, 72d Leg., ch. 894, § 1, at 3060-61.

The above-mentioned brief contends that the provisions of article 911b which allow motor carriers the option of providing either workers' compensation or "accidental insurance" coverage should, being specific to motor carriers, and moreover the more recently enacted, be construed to prevail over the provisions of article 8308-3.23, which are generally applicable to public works building and construction contractors. We disagree. While the legislature has seen fit to provide in article 911b that motor carriers generally may opt to carry either workers' compensation 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 contract workers on the public works projects covered by the article have workers' compensation coverage.

The brief also states that "motor carriers in most, if not all, cases will be an independent contractor as defined in article 8308-3.05(a)(1)," and suggests that "motor carriers defined as independent contractors do not have to provide workers' compensation insurance coverage normally required under article 8308-3.23."

In our view, the purpose of article 8308-3.05 is generally to characterize employment relations as being ones of either employer-employee or employer-independent contractor. These distinctions are important since employers have various duties to "employees" under the workers' compensation act that they do not have when the employment relation is one of employer-general contractor. See, e.g., V.T.C.S. arts. 8308-3.08 (employee election), 8308-3.24 (notice to employees whether covered), 8308-4.01 (recovery by employee). Subpart (a)(1) of article 8308-3.05, to which the brief refers, defines "independent contractor" by setting out rather standard legal elements of the independent contractor relationship. With regard to transportation workers, subpart (a)(4) defines an "owner operator" as "a person who provides transportation services for a motor carrier under contract," and provides that "[a]n owner operator is an independent contractor."

Contrary to the suggestion in the brief, we do not believe that article 8308-3.05 creates any exceptions to the workers' compensation coverage requirements of article 8308-3.23. In our view, in requiring "general contractors" and "sub-contractors" to show proof of coverage for those who will work on the project, the legislature intended to include all contract workers under the coverage requirement including the "contractors" or "sub-contractors" themselves when they are in fact "employed on the public project." Id. art. 8308-3.23. While characterization of a particular worker, based on the provisions of article 8308-3.05, as an "independent contractor" rather than an "employee" may determine who is responsible for providing workers' compensation coverage for the worker under article 8308-3.23, it does not, in our opinion, relieve anyone from the coverage requirement including the "contractors" or "subcontractors" themselves when they are in fact "employed on the public project." If the worker is an "employee," his employer is responsible for providing coverage. If he is an "independent contractor," he himself is ultimately responsible.²

Since we conclude that workers' compensation coverage is required, we need not address the part of your question which asks whether TxDOT has discretionary authority to require truckers hauling materials on TxDOT projects to carry workers' compensation insurance.

SUMMARY

Truckers hauling materials on and onto Texas Department of Transportation construction sites are required, under article 8308-3.23, V.T.C.S., to be covered by workers' compensation insurance.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

¹ Subsection (d) of article 8308-3.23, V.T.C.S., defines "building or construction" to include "erecting or preparing to erect a structure, including buildings, bridges, roadways, public utility facilities, and related appurtenances"; "remodeling, extending, repairing, or demolishing a structure"; or "otherwise improving real property or appurtenances to real property through similar activities." We assume for purposes of this opinion that the TxDOT projects you refer to constitute "building or construction" within the meaning of article 8308-3.23, V.T.C.S.

² See, e.g., id. art. 8308-3.05(g) ("motor carrier" and "owner operator" may agree that former will provide coverage for latter).