Can a Texas county cut off a worker's supplemental injury pay after promising it?

Plain-English summary

Lavaca County had a policy of taking care of employees who got hurt on the job. In 1986 the commissioners court promised disabled county workers a supplement: on top of their regular workers' compensation, the county would pay enough to bring them back up to their full salary, for as long as they were totally disabled. Two employees were injured in 1988 and 1990 and started receiving those payments. Then, in 1991, the commissioners court changed its mind and adopted a new order capping the supplement at ten monthly payments. The county attorney asked whether the county could apply that cap to the two workers who were already collecting.

The Attorney General said no. The starting point is that a commissioners court controls county employee pay and can raise or lower it like any employer, as long as it does not run into a constitutional or statutory bar and does not take away a right an employee has already locked in. That last part is the catch. The opinion pointed to a court decision, DeHoyos v. City of Beeville, where a city tried to end the same kind of supplemental benefit for an injured worker. The court treated the benefit, which was spelled out in the city's personnel policy, as part of the employment contract. Once an employee was injured while that policy was in force, the promised top-up became a vested right the city could not unilaterally cancel.

The same logic applied to Lavaca County. The 1986 order tied the supplement to the worker's "period of total disability," which the opinion read as the period the worker receives workers' compensation. So for the two employees hurt back in 1988 and 1990, the supplement had already vested under the 1986 policy. The 1991 cap could not reach back and shrink it. (The opinion was careful to limit itself to injuries that happened before January 1, 1991, the date the Texas Workers' Compensation Act of 1989 took effect, because older injuries are handled under the prior law.)

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 workers'-compensation statutes cited here (then V.T.C.S. articles 8308 and 8309h) have since been recodified into the Labor Code, and the county-compensation provisions have been amended, so confirm current law before relying on anything described here.

Background and statutory framework

The Lavaca County Attorney explained that in 1986 the Commissioners Court adopted an order authorizing supplemental compensation for all disabled county employees: during the period of an employee's total disability, the employee would receive payments that, combined with standard workers'-compensation benefits, equaled the employee's regular salary. In 1991 the court adopted an order limiting such supplemental payments to ten monthly payments. Two county employees were injured in 1988 and 1990 and had been granted supplemental benefits under the 1986 order. The county asked whether, on the basis of the 1991 order, it could limit the number of supplemental payments to these employees. The AG concluded the commissioners court was not authorized to do so.

Which law applies. Because the two injuries occurred before the January 1, 1991 effective date of the Texas Workers' Compensation Act of 1989 (Acts 1989, 71st Leg., 2d C.S., ch. 1, § 17.18(a), (c), (d)), claims for those injuries are processed under the law in effect when the injury occurred, so the opinion addressed supplemental compensation paid alongside benefits under the former workers'-compensation laws.

Counties may provide and adjust supplemental pay. Counties may provide workers'-compensation insurance for their employees under article III, section 60 of the Texas Constitution. The office had earlier concluded that political subdivisions were not required to carry such coverage under pre-1991 law (AG Opinion H-338 (1974)), and that, while pre-1991 law did not specifically require or authorize counties to pay supplemental workers'-compensation benefits, a county could provide them prospectively as an element of compensation (AG Opinion JM-447 (1986)). Under Local Government Code section 152.011, the commissioners court sets county-employee compensation, and the power to set salary includes the power to increase or reduce it, so long as no vested right is impaired and there is no constitutional or statutory prohibition. See City of Dallas v. Trammell, 101 S.W.2d 1009 (Tex. 1937); AG Opinion JM-910 (1988).

The vested-right limit. That power did not let the county shrink benefits already owed to employees injured before the 1991 order. A city tried the same thing in DeHoyos v. City of Beeville, 742 S.W.2d 735 (Tex. App.-Corpus Christi 1987, writ denied), terminating supplemental benefits it paid an injured employee who was also receiving workers' compensation. The benefits came from a personnel-manual provision promising, during the period covered by workers' compensation, the difference between the employee's regular pay and the workers'-compensation benefit. The court read that provision as obligating the city to pay the difference for the whole period the employee was legally entitled to workers' compensation. Although the court did not spell it out in these words, it appeared to treat the personnel manual as part of the employment contract that could not be changed unilaterally after a compensable injury, so an employee injured while the policy was in effect had a vested right to the promised benefits that the employer could not impair.

Applied to Lavaca County. The 1986 order authorized supplemental payments "during the period of total disability." Because payment was conditioned on the employee's receipt of workers'-compensation benefits, the AG read "period of total disability" as the period during which the injured employee receives those benefits. On the strength of DeHoyos and the order's own terms, the AG concluded the commissioners court was prohibited from limiting or reducing the supplemental benefits paid to the two employees described in the request.

Common questions

Can a Texas county change its employee benefits?
Generally yes, going forward. A commissioners court sets county-employee compensation and can raise or lower it, as long as no constitutional or statutory rule bars the change and it does not take away a right an employee has already vested in.

Why couldn't the county cap these two workers' payments?
Because they were injured while the 1986 policy was in force, and that policy promised to make up the gap between their workers' compensation and their full salary for as long as they were disabled. The opinion, following DeHoyos, treated that promise as a vested contractual right the county could not cut by a later order.

Did it matter when the workers were injured?
Yes. The opinion limited itself to injuries before January 1, 1991, which are governed by the workers'-compensation law in effect at the time of injury rather than the 1989 Act that took effect that day.

Could the county apply the 1991 ten-payment cap to future hires or future injuries?
The opinion did not bar setting compensation prospectively; it addressed only the two employees already injured under the 1986 policy. Counties may set and adjust supplemental benefits prospectively, but verify current law before relying on this for any specific situation.

Citations

• Tex. Const. art. III, § 60 (counties may provide workers'-compensation insurance for employees)
• Local Government Code § 152.011 (commissioners court sets county-employee compensation)
• Texas Workers' Compensation Act of 1989, Acts 1989, 71st Leg., 2d C.S., ch. 1, § 17.18 (effective Jan. 1, 1991; applies to injuries on or after that date)
• V.T.C.S. art. 8309h (political subdivisions to provide coverage); V.T.C.S. art. 8308-4.04 (1989 supplemental-benefit authorization)
• City of Dallas v. Trammell, 101 S.W.2d 1009 (Tex. 1937)
• DeHoyos v. City of Beeville, 742 S.W.2d 735 (Tex. App.-Corpus Christi 1987, writ denied)
• Attorney General Opinions H-338 (1974), JM-447 (1986), JM-910 (1988), DM-180 (1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0213
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0213.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters, and one garbled signature name is marked. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 31, 1993

Honorable James W. Carr
Lavaca County Attorney
Box 576, Second Floor Courthouse
Hallettsville, Texas 77964

Opinion No. DM-213

Re: Whether a commissioners court may limit the number of monthly supplemental workers' compensation payments to county employees already receiving such payments (RQ-231)

Dear Mr. Carr:

You inform us that in 1986, the Commissioners Court of Lavaca County adopted an order authorizing supplemental compensation for all disabled county employees. The order provided that during the period of the employee's total disability the employee would receive payments which, when combined with standard workers' compensation benefits, would equal the employee's regular salary. In 1991, the commissioners court adopted an order that limited the amount of such supplemental payments to ten monthly payments.

You state that two county employees were injured in 1988 and 1990, respectively, and were granted supplemental benefits pursuant to the 1986 order. You ask whether the commissioners court may, on the basis of the 1991 order, limit the number of supplemental payments to these employees. We conclude that the commissioners court was not authorized to limit the number of supplemental payments made to these employees.

The injuries to the employees in question occurred prior to the effective date of the Texas Workers' Compensation Act of 1989. Acts 1989, 71st Leg., 2d C.S., ch. 1. That act states that, with the exception of a few provisions not relevant here, the act takes effect on January 1, 1991, and that the change in the law made by the act applies only to injuries which occur on or after this date. Id. § 17.18(a), (c), at 122. The Texas Workers' Compensation Commission is directed to process claims for injuries occurring before the effective date in accordance with the law in effect on the date the injury occurred. Id. § 17.18(d), at 122. We therefore limit this opinion to situations involving the payment of supplemental compensation in conjunction with the payment of workers' compensation benefits under the former workers' compensation laws.

Counties are authorized to provide workers' compensation insurance for county employees under article III, section 60 of the Texas Constitution. This office has previously determined that political subdivisions were not required to carry workers' compensation coverage under the laws in effect prior to the effective date of the Texas Workers' Compensation Act of 1989. Attorney General Opinion H-338 (1974). [1] Also, while the workers' compensation laws in effect prior to 1991 did not specifically require or authorize counties to pay injured employees supplemental workers' compensation benefits, Attorney General Opinion JM-447 (1986) concluded that a county could provide such benefits on a prospective basis as an element of county employees' compensation.

Accordingly, with respect to employees hired prior to 1991, the commissioners court was authorized to provide supplemental compensation on a prospective basis pursuant to its authority to set the compensation of county employees. Local Gov't Code § 152.011; see Attorney General Opinion JM-447 at 3-4. So long as no vested right is impaired, and in the absence of a constitutional or statutory prohibition, the power to set salary and compensation obviously includes the authority to increase or reduce compensation. See City of Dallas v. Trammell, 101 S.W.2d 1009 (Tex. 1937); Attorney General Opinion JM-910 (1988).

This does not, however, mean the Lavaca County Commissioners Court necessarily was free to limit the amount of supplemental compensation payable to employees injured prior to the adoption of the second order reducing these benefits. The case of DeHoyos v. City of Beeville, 742 S.W.2d 735 (Tex. App.-Corpus Christi 1987, writ denied), illustrates this point. The case concerned a city's attempt to terminate supplemental benefits paid by the city to an injured employee who concurrently was receiving workers' compensation benefits for the injury. The supplemental benefits were paid pursuant to a provision in the city personnel manual that stated that an injured employee would receive, during the period of time provided for under workers' compensation insurance, compensation in an amount reflecting the difference between the employee's regular rate of pay and the amount of workers' compensation benefits. The court concluded that this provision not only created a duty to pay workers' compensation benefits, but also obligated the city to pay the difference between salary and benefits for the period the employee was legally entitled to workers' compensation benefits.

Although the court in DeHoyos did not explicitly couch its holding in these terms, it appears to have determined that the personnel manual constituted a part of the contract of employment which could not unilaterally be changed by the employer subsequent to a compensable injury. An employee injured during the effective period of the policy, therefore, could claim a vested right to the benefits promised by policy. The city would be prohibited from impairing this right by unilaterally limiting or eliminating these benefits.

The term of the 1986 order granting supplemental benefits to employees of Lavaca County authorized supplemental payments "during the period of total disability." Because the payment of supplemental benefits pursuant to the order is conditioned on the receipt of workers' compensation benefits by an injured employee, we assume that "period of total disability" corresponds to the period during which an injured employee receives workers' compensation benefits. Accordingly, we believe, on the strength of the DeHoyos case and the terms of the commissioners court's order, that the Lavaca County Commissioners Court was prohibited from limiting or reducing the amount of supplemental benefits paid to the two individuals described in your request letter.

SUMMARY

The Commissioners Court of Lavaca County may not reduce the number or amount of supplemental compensation payments made to a county employee injured prior to January 1, 1991, pursuant to a policy that obligates the county to pay, for the period the employee receives workers' compensation benefits, the difference between workers' compensation benefits and the employee's regular wages or salary.

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 Steve [last name illegible in source scan]
Assistant Attorney General

Footnotes:

[1] Article 8309h, V.T.C.S., currently requires political subdivisions of the state (including counties) to provide such coverage either by self-insuring, purchasing insurance, or contracting with other self-insurers. See V.T.C.S. art. 8309h, §§ 1(1), 2(a); Attorney General Opinion DM-180 (1992).

[2] In contrast, the 1989 workers' compensation legislation specifically authorized political subdivisions to provide two kinds of supplemental benefits to injured employees receiving workers' compensation benefits. See V.T.C.S. arts. 8308-4.04, 8309h, §§ 3(a)(4), 5(c).