explaining that the State, in adopting the Tort Claims Act and workers’ compensation coverage for state employees, retained its immunity and provided its employees an alternative remedy through workers’ compensation coverage, citing Lyons v. Texas A & M Univ., 545 S.W.2d 56 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ refd n.r.e.)
How later courts described this case
- explaining that the State, in adopting the Tort Claims Act and workers’ compensation coverage for state employees, retained its immunity and provided its employees an alternative remedy through workers’ compensation coverage, citing Lyons v. Texas A & M Univ., 545 S.W.2d 56 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ refd n.r.e.)
- holding that the Legislature’s incorporation of a Workers’ Compensation Act provision preserving a private employee’s cause of action for exemplary damages into a statute providing compensation benefits for state highway department employees did not clearly and unambiguously waive the State’s immunity from suit for such damages
- holding that Legislature's incorporation of Workers' Compensation Act provision preserving private employee's cause of action for exemplary damages into statute providing compensation benefits for state highway department employees did not clearly and unambiguously waive State's immunity from suit
- holding that Section 5 of Article 8306—the predecessor to Section 408.001(b)—“does not create a cause of action for exemplary damages, but merely saves an existing one to the extent allowed by law”
Written by the judges who cited it.
The opinion
CAMPBELL, Justice,
dissenting.
I dissent.
In 1937, the 45th Legislature passed Article 6674s which provided workers’ compensation coverage for State Highway Department employees. Section 11 of that Article provides a waiver of sovereign immunity by allowing employees to bring suit against the Department if they are not willing to abide by the final ruling of the Industrial Accident Board. Thus, Article 6674s provides a general waiver of immunity to employees of the Department who are killed or injured in the course and scope of employment.
In 1969, Section 5 of Article 8306 (Workers’ Compensation Act) was specifically incorporated into Article 6674s. Section 5 provides:
Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of *744 them as there may be of any deceased employé whose death is occasioned by homicide from the wilful act or omission or gross negligence of any person, firm or corporation from the employer of such employé at the time of the injury causing the death of the latter. In any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or finding of the Industrial Accident Board was correct. In any such suit, such award, ruling or finding shall neither be pleaded nor offered in evidence.
Article 6674s, § 7(b) provides that the word “employer” shall be construed to and shall mean “the Department.”
Article 6674s applies only to State Highway Department employees. Amending the Act to adopt Section 5 would be meaningless if it were not intended to allow suits to recover exemplary damages for gross negligence resulting in death of the employee. Even a strict construction of the phrase “in any suit so brought for exemplary damages, the trial shall be de novo” requires a determination that the Legislature intended to and did provide an existing legal claim for survivors of Department employees whose death resulted from gross negligence of the employer (The Department).
It has been held in Fort Worth Elevators Co. v. Russell, 123 Tex. 128 , 70 S.W.2d 397 (1934) and Trinity County Lumber Co. v. Ocean Accident & Guaranty Corp., 228 S.W.2d 114 (Tex.Comm’n App.1921, jdgm’t adopted) that Section 5 of Article 8306 was a savings clause and that its purpose was to leave the law as to exemplary damages the same as it was before the passage of the Workers’ Compensation Act. However, those cases involved suits by employees of private employers and the construction of Section 5 as it applied to .Article 8306. Those cases are not controlling in this case.
Here, we must determine the purpose of the Legislature in incorporating Section 5 into Article 6674s. As was stated in State v. Hale, 136 Tex. 29 , 146 S.W.2d 731 (1941): “We do not believe that the Legislature intended to do a useless thing, by authorizing plaintiffs to file a suit based on the ground that is prohibited by law nor do we believe that this Act should be given such a narrow and technical construction that would prohibit the filing of a suit for an existing legal claim.... ”
There is no constitutional authority for the filing of a suit by the survivors of a deceased employee whose death resulted from gross negligence of the employer (The Department). However, reading Section 5 as it applies to Article 6674s, substituting “the Department” for “employer,” considering the last half of Section 5, and with the presumption that the Legislature did not intend to do a useless thing, I would hold that Section 5 as incorporated in Article 6674s creates such a cause of action.
After the State has waived its sovereign immunity in a suit for gross negligence causing the death of a Highway Department employee, it is an ordinary employer subject to the Workers’ Compensation Act. Under these circumstances, heirs of employees of the Department of Highways and Public Transportation may sue the State in its capacity as an employer. I would hold the Duharts have a cause of action for gross negligence against the State.
RAY, J., joins in this dissent.