Recent activities by EEOC, including the filing of lawsuits on behalf of transgender employees, the filing of amicus briefs related to coverage of sexual orientation and transgender status, and the issuance of federal sector decisions in these areas, have triggered increased interest about protections for lesbian, gay, bisexual and transgender (LGBT) individuals under federal employment-discrimination laws. The information below highlights what you should know about the EEOC’s enforcement efforts on behalf of LGBT individuals.
Overview
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who file EEOC charges or cooperate with an EEOC investigation. Also, where these federal laws apply, they protect all workers, regardless of sexual orientation or gender identity.
Employers and employees often have questions about whether discrimination related to LGBT status is prohibited under the laws the EEOC enforces. The Commission’s Strategic Enforcement Plan (SEP), adopted by a bipartisan vote in December of 2012, lists “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as an enforcement priority for FY2013-2016. This enforcement priority is consistent with positions the Commission has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.
In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964. SeeMacy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex under Title VII. See Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep’t of Homeland Sec., EEOC DOC 0120110576(August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory).
Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. Therefore, the EEOC’s district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).
The Commission also takes the position, consistent with case law from the Supreme Court and other courts referenced at the previous link, that lesbian, gay, and bisexual individuals may bring valid Title VII sex discrimination claims. The Commission accepts and investigates charges alleging sexual-orientation discrimination, such as claims of sexual harassment or allegations that an adverse action was taken because of a person’s failure to conform to sex-stereotypes (described above)..
Charge Data
In January 2013, the EEOC began tracking information on charges filed alleging discrimination related to gender identity and/or sexual orientation. In the final three quarters of FY 2013 (January through September), EEOC received 643 charges that included allegations of sex discrimination related to sexual orientation and 147 charges that included allegations of sex discrimination based on gender identity/transgender status. In FY 2014, the EEOC received 918 charges that included allegations of sex discrimination related to sexual orientation and 202 charges that included allegations of sex discrimination based on gender identity/transgender status. For the first two quarters of FY 2015, EEOC received 505 charges that included allegations of sex discrimination related to sexual orientation and 112 charges that included allegations of sex discrimination based on gender identity/transgender status.
Further information on our charge receipts and resolutions under Title VII can be found here.
Litigation Activity
The Commission has begun to file LGBT-related lawsuits under Title VII challenging alleged sex discrimination.
EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014). The EEOC sued Lakeland Eye Clinic, a Florida-based organization of health care professionals, alleging that it discriminated based on sex in violation of Title VII by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The EEOC’s lawsuit alleged the employee performed her duties satisfactorily throughout her employment. However, after she began to present as a woman and informed the clinic she was transgender, Lakeland fired her. On April 9, 2015, the U.S. District Court in Tampa approved an agreement in which Lakeland Eye Clinic will pay $150,000 to settle the lawsuit. Lakeland also agreed to implement a new gender discrimination policy and to provide training to its management and employees regarding transgender/gender stereotype discrimination.
EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014). The EEOC sued Detroit-based R.G. & G.R. Harris Funeral Homes Inc., alleging that it discriminated based on sex in violation of Title VII by firing a Garden City, Mich., funeral director/embalmer because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The lawsuit alleges that an individual had been employed by Harris as a funeral Director/Embalmer since October 2007 and had always adequately performed the duties of that position. In 2013, the worker gave Harris a letter explaining she was undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman. Two weeks later, Harris’s owner fired the transgender employee, telling her that what she was “proposing to do” was unacceptable.
In the Federal Sector, EEOC has been implementing the SEP priority with regard to the coverage of LGBT individuals in a variety of ways:
Tracking gender identity and sexual orientation appeals in the federal sector.
Issuing federal sector decisions finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process.
Establishing an LGBT workgroup to further the EEOC’s adjudicatory and oversight responsibilities, with the goal of issuing an LGBT federal sector report.
Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site.
Providing technical assistance to federal agencies in the development of gender transition policies and plans.
Providing LGBT related outreach to federal agencies through briefings, presentations and case law updates.
Training and Outreach
Finally, EEOC staff are addressing LGBT legal developments in numerous outreach and training presentations to the public. During FY 2014 and the first two quarters of FY 2015, field office staff conducted more than 900 events where LGBT sex-discrimination issues were among the topics discussed. In the federal sector during FY 2014, 21 presentations were delivered to different agencies or audiences. In FY 2015, 7 presentations have been delivered with at least 7 more currently scheduled. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach the EEOC developed a brochure,Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Employees.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
“Let us consider, brethren, we are struggling for our best birthrights and inheritance, which being infringed, renders all our blessings precarious in their enjoyments, and, consequently triffling in their value. Let us disappoint the Men who are raising themselves on the ruin of this Country. Let us convince every invader of our freedom, that we will be as free as the constitution our fathers recognized, will justify.” A State of the Rights of the Colonists 1772
-Samuel Adams
“When even one American — who has done nothing wrong — is forced by fear to shut his mind and close his mouth, then all Americans are in peril.”
-Harry S. Truman
“An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Federalist No. 48, February 1, 1788
-James Madison
“The great and chief end therefore, of [Men] uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.” Second Treatise of Government 1690
-John Locke
“An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.” McCullough v. Maryland, March 6, 1819
-John Marshall
“A vote is like a rifle: its usefulness depends upon the character of the user.”
-Theodore Roosevelt
“I do not want to see any of the people cringing supplicants for the favor of the Government, when they should all be independent masters of their own destiny”
-Calvin Coolidge
“There is not a liberal America and a conservative America – there is the United States of America. There is not a black America and a white America and latino America and asian America – there’s the United States of America.”
-Barack H. Obama
“What country can preserve its liberties, if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.” Letter to William Stephens Smith November 13, 1787
-Thomas Jefferson
“To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” Speech at the Virginia Ratifying Convention, June 20, 1788
-James Madison
“They’ll grind us up in a big machine. They’ll feed us all on the same beliefs, the holy dollar and a credit card. But we have a way of doing things, and no banker is going to steal from me. They want to tear it all apart…There’s a bible on the table, because he bled for what we have, and…I was raised in this land…I guess that’s something you don’t understand.”
-Cody Cannon
“There can be no liberty unless there is economic liberty.”
-Margaret Thatcher
“…The man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of reappearing tyranny and oppression.” Letter to Henry L. Pierce & others, April 6, 1859
-Abraham Lincoln
“This is what America is about when it comes to understanding that it is equal opportunity versus equal achievement. Each and every one of us has the opportunity for greatness in this country.”
-Allen West
“I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” Speech During Virginia’s Convention to Ratify the Constitution
-George Mason
“One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.” Letter from the Birmingham Jail
-Martin Luther King
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Sec. 545.001. DEFINITIONS. In this chapter:
(1) “Pass” or “passing” used in reference to a vehicle means to overtake and proceed past another vehicle moving in the same direction as the passing vehicle or to attempt that maneuver.
(2) “School bus” includes a multifunction school activity bus.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 923 (H.B. 3190), Sec. 3, eff. September 1, 2007.
Sec. 545.002. OPERATOR. In this chapter, a reference to an operator includes a reference to the vehicle operated by the operator if the reference imposes a duty or provides a limitation on the movement or other operation of that vehicle.
SUBCHAPTER B. DRIVING ON RIGHT SIDE OF ROADWAY AND PASSING
Sec. 545.051. DRIVING ON RIGHT SIDE OF ROADWAY. (a) An operator on a roadway of sufficient width shall drive on the right half of the roadway, unless:
(1) the operator is passing another vehicle;
(2) an obstruction necessitates moving the vehicle left of the center of the roadway and the operator yields the right-of-way to a vehicle that:
(A) is moving in the proper direction on the unobstructed portion of the roadway; and
(B) is an immediate hazard;
(3) the operator is on a roadway divided into three marked lanes for traffic; or
(4) the operator is on a roadway restricted to one-way traffic.
(b) An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway, unless the operator is:
(1) passing another vehicle; or
(2) preparing for a left turn at an intersection or into a private road or driveway.
(c) An operator on a roadway having four or more lanes for moving vehicles and providing for two-way movement of vehicles may not drive left of the center line of the roadway except:
(1) as authorized by an official traffic-control device designating a specified lane to the left side of the center of the roadway for use by a vehicle not otherwise permitted to use the lane;
(2) under the conditions described by Subsection (a)(2); or
(3) in crossing the center line to make a left turn into or out of an alley, private road, or driveway.
Sec. 545.052. DRIVING PAST VEHICLE MOVING IN OPPOSITE DIRECTION. An operator moving in the opposite direction of the movement of another operator shall:
(1) move to or remain to the right; and
(2) on a roadway wide enough for not more than one line of vehicle movement in each direction, give the other operator:
(A) at least one-half of the main traveled portion of the roadway; or
(B) if complying with Paragraph (A) is not possible, as much of the roadway as possible.
Sec. 545.053. PASSING TO THE LEFT; RETURN; BEING PASSED. (a) An operator passing another vehicle:
(1) shall pass to the left of the other vehicle at a safe distance; and
(2) may not move back to the right side of the roadway until safely clear of the passed vehicle.
(b) An operator being passed by another vehicle:
(1) shall, on audible signal, move or remain to the right in favor of the passing vehicle; and
(2) may not accelerate until completely passed by the passing vehicle.
(c) Subsection (b) does not apply when passing to the right is permitted.
Sec. 545.054. PASSING TO THE LEFT: SAFE DISTANCE. (a) An operator may not drive on the left side of the center of the roadway in passing another vehicle unless:
(1) driving on the left side of the center of the roadway is authorized by this subtitle; and
(2) the left side is clearly visible and free of approaching traffic for a distance sufficient to permit passing without interfering with the operation of the passed vehicle or a vehicle approaching from the opposite direction.
(b) An operator passing another vehicle shall return to an authorized lane of travel:
(1) before coming within 200 feet of an approaching vehicle, if a lane authorized for vehicles approaching from the opposite direction is used in passing; or otherwise
(2) as soon as practicable.
Sec. 545.055. PASSING TO THE LEFT: PASSING ZONES. (a) An operator shall obey the directions of a sign or marking in Subsection (c) or (d) if the sign or marking is in place and clearly visible to an ordinarily observant person.
(b) An operator may not drive on the left side of the roadway in a no-passing zone or on the left side of any pavement striping designed to mark a no-passing zone. This subsection does not prohibit a driver from crossing pavement striping, or the center line in a no-passing zone marked by signs only, to make a left turn into or out of an alley or private road or driveway.
(c) The Texas Transportation Commission, on a state highway under the jurisdiction of the commission, may:
(1) determine those portions of the highway where passing or driving to the left of the roadway would be especially hazardous; and
(2) show the beginning and end of each no-passing zone by appropriate signs or markings on the roadway.
(d) A local authority, on a highway under the jurisdiction of the local authority, may:
(1) determine those portions of the highway where passing or driving to the left of the roadway would be especially hazardous; and
(2) show the beginning and end of each no-passing zone by appropriate signs or markings on the roadway.
Sec. 545.056. DRIVING TO LEFT OF CENTER OF ROADWAY: LIMITATIONS OTHER THAN PASSING. (a) An operator may not drive to the left side of the roadway if the operator is:
(1) approaching within 100 feet of an intersection or railroad grade crossing in a municipality;
(2) approaching within 100 feet of an intersection or railroad grade crossing outside a municipality and the intersection or crossing is shown by a sign or marking in accordance with Section 545.055;
(3) approaching within 100 feet of a bridge, viaduct, or tunnel; or
(4) awaiting access to a ferry operated by the Texas Transportation Commission.
(b) The limitations in Subsection (a) do not apply:
(1) on a one-way roadway; or
(2) to an operator turning left into or from an alley or private road or driveway.
(c) The Texas Transportation Commission shall post signs along the approach to a ferry operated by the commission notifying operators that passing is prohibited if there is a standing line of vehicles awaiting access to the ferry.
Sec. 545.057. PASSING TO THE RIGHT. (a) An operator may pass to the right of another vehicle only if conditions permit safely passing to the right and:
(1) the vehicle being passed is making or about to make a left turn; and
(2) the operator is:
(A) on a highway having unobstructed pavement not occupied by parked vehicles and sufficient width for two or more lines of moving vehicles in each direction; or
(B) on a one-way street or on a roadway having traffic restricted to one direction of movement and the roadway is free from obstructions and wide enough for two or more lines of moving vehicles.
(b) An operator may not pass to the right by leaving the main traveled portion of a roadway except as provided by Section 545.058.
Sec. 545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
(b) An operator may drive on an improved shoulder to the left of the main traveled portion of a divided or limited-access or controlled-access highway if that operation may be done safely, but only:
(1) to slow or stop when the vehicle is disabled and traffic or other circumstances prohibit the safe movement of the vehicle to the shoulder to the right of the main traveled portion of the roadway;
(2) as permitted or required by an official traffic-control device; or
(3) to avoid a collision.
(c) A limitation in this section on driving on an improved shoulder does not apply to:
(1) an authorized emergency vehicle responding to a call;
(2) a police patrol; or
(3) a bicycle.
Sec. 545.059. ONE-WAY ROADWAYS AND ROTARY TRAFFIC ISLANDS. (a) The Texas Transportation Commission may designate a highway or separate roadway under the jurisdiction of the commission for one-way traffic and shall erect appropriate signs giving notice of the designation.
(b) On a roadway that is designated and on which signs are erected for one-way traffic, an operator shall drive only in the direction indicated.
(c) An operator moving around a rotary traffic island shall drive only to the right of the island.
Sec. 545.060. DRIVING ON ROADWAY LANED FOR TRAFFIC. (a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can be made safely.
(b) If a roadway is divided into three lanes and provides for two-way movement of traffic, an operator on the roadway may not drive in the center lane except:
(1) if passing another vehicle and the center lane is clear of traffic within a safe distance;
(2) in preparing to make a left turn; or
(3) where the center lane is designated by an official traffic-control device for movement in the direction in which the operator is moving.
(c) Without regard to the center of the roadway, an official traffic-control device may be erected directing slow-moving traffic to use a designated lane or designating lanes to be used by traffic moving in a particular direction.
(d) Official traffic-control devices prohibiting the changing of lanes on sections of roadway may be installed.
Sec. 545.061. DRIVING ON MULTIPLE-LANE ROADWAY. On a roadway divided into three or more lanes and providing for one-way movement of traffic, an operator entering a lane of traffic from a lane to the right shall yield the right-of-way to a vehicle entering the same lane of traffic from a lane to the left.
Sec. 545.062. FOLLOWING DISTANCE. (a) An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.
(b) An operator of a truck or of a motor vehicle drawing another vehicle who is on a roadway outside a business or residential district and who is following another truck or motor vehicle drawing another vehicle shall, if conditions permit, leave sufficient space between the vehicles so that a vehicle passing the operator can safely enter and occupy the space. This subsection does not prohibit a truck or a motor vehicle drawing another vehicle from passing another vehicle.
(c) An operator on a roadway outside a business or residential district driving in a caravan of other vehicles or a motorcade shall allow sufficient space between the operator and the vehicle preceding the operator so that another vehicle can safely enter and occupy the space. This subsection does not apply to a funeral procession.
Sec. 545.063. DRIVING ON DIVIDED HIGHWAY. (a) On a highway having two or more roadways separated by a space, physical barrier, or clearly indicated dividing section constructed to impede vehicular traffic, an operator shall drive on the right roadway unless directed or permitted to use another roadway by an official traffic-control device or police officer.
(b) An operator may not drive over, across, or in a dividing space, physical barrier, or section constructed to impede vehicular traffic except:
(1) through an opening in the physical barrier or dividing section or space; or
(2) at a crossover or intersection established by a public authority.
Sec. 545.064. RESTRICTED ACCESS. An operator may not drive on or from a limited-access or controlled-access roadway except at an entrance or exit that is established by a public authority.
Sec. 545.065. STATE AND LOCAL REGULATION OF LIMITED-ACCESS OR CONTROLLED-ACCESS HIGHWAYS. (a) The Texas Transportation Commission by resolution or order recorded in its minutes may prohibit the use of a limited-access or controlled-access highway under the jurisdiction of the commission by a parade, funeral procession, pedestrian, bicycle, electric bicycle, motor-driven cycle, or nonmotorized traffic.
(b) If the commission adopts a rule under Subsection (a), the commission shall erect and maintain official traffic-control devices on the portions of the limited-access or controlled-access highway to which the rule applies.
(c) A local authority by ordinance may prohibit the use of a limited-access or controlled-access roadway under the jurisdiction of the authority by a parade, funeral procession, pedestrian, bicycle, electric bicycle, motor-driven cycle, or nonmotorized traffic.
(d) If a local authority adopts an ordinance under Subsection (c), the authority shall erect and maintain official traffic-control devices on the portions of the limited-access or controlled-access roadway to which the ordinance applies.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 1085, Sec. 7, eff. Sept. 1, 2001.
Sec. 545.0651. RESTRICTION ON USE OF HIGHWAY. (a) In this section:
(1) “Commission” means the Texas Transportation Commission.
(1-a) “Department” means the Texas Department of Transportation.
(2) “Highway” means a public highway that:
(A) is in the designated state highway system;
(B) is designated a controlled access facility; and
(C) has a minimum of three travel lanes, excluding access or frontage roads, in each direction of traffic that may be part of a single roadway or may be separate roadways that are constructed as an upper and lower deck.
(b) The commission by order may restrict, by class of vehicle, through traffic to two or more designated lanes of a highway. If the lanes to be restricted by the commission are located within a municipality, the commission shall consult with the municipality before adopting an order under this section. A municipality by ordinance may restrict, by class of vehicle, through traffic to two or more designated lanes of a highway in the municipality.
(c) An order or ordinance under Subsection (b) must allow a restricted vehicle to use any lane of the highway to pass another vehicle and to enter and exit the highway.
(d) Before adopting an ordinance, a municipality shall submit to the department a description of the proposed restriction. The municipality may not enforce the restrictions unless the department’s executive director or the executive director’s designee has approved the restrictions.
(e) Department approval under Subsection (d) must:
(1) be based on a traffic study performed by the department to evaluate the effect of the proposed restriction; and
(2) to the greatest extent practicable, ensure a systems approach to preclude the designation of inconsistent lane restrictions among adjacent municipalities.
(f) The department’s executive director or the executive director’s designee may suspend or rescind approval of any restrictions approved under Subsection (d) for one or more of the following reasons:
(1) a change in pavement conditions;
(2) a change in traffic conditions;
(3) a geometric change in roadway configuration;
(4) construction or maintenance activity; or
(5) emergency or incident management.
(g) The department shall erect and maintain official traffic control devices necessary to implement and enforce an order adopted or an ordinance adopted and approved under this section. A restriction approved under this section may not be enforced until the appropriate traffic control devices are in place.
Added by Acts 1997, 75th Leg., ch. 384, Sec. 1, eff. May 28, 1997. Amended by Acts 2003, 78th Leg., ch. 1049, Sec. 9, eff. June 20, 2003.
Sec. 545.0652. COUNTY RESTRICTION ON USE OF HIGHWAY. (a) In this section:
(1) “Department” means the Texas Department of Transportation.
(2) “Highway” means a public roadway that:
(A) is in the designated state highway system;
(B) is designated a controlled access facility; and
(C) has a minimum of three travel lanes, excluding access or frontage roads, in each direction of traffic.
(b) A county commissioners court by order may restrict, by class of vehicle, through traffic to two or more designated lanes of a highway located in the county and outside the jurisdiction of a municipality.
(c) An order under Subsection (b) must allow a restricted vehicle to use any lane of the highway to pass another vehicle and to enter and exit the highway.
(d) Before issuing an order under this section, the commissioners court shall submit to the department a description of the proposed restriction. The commissioners court may not enforce the restrictions unless:
(1) the department’s executive director or the executive director’s designee has approved the restrictions; and
(2) the appropriate traffic-control devices are in place.
(e) Department approval under Subsection (d) must to the greatest extent practicable ensure a systems approach to preclude the designation of inconsistent lane restrictions among adjacent counties or municipalities.
(f) The department’s executive director or the executive director’s designee may suspend or rescind approval under this section for one or more of the following reasons:
(1) a change in pavement conditions;
(2) a change in traffic conditions;
(3) a geometric change in roadway configuration;
(4) construction or maintenance activity; or
(5) emergency or incident management.
(g) The department shall erect and maintain official traffic-control devices necessary to implement and enforce an order issued and approved under this section.
Added by Acts 2003, 78th Leg., ch. 846, Sec. 1, eff. Sept. 1, 2003.
Sec. 545.066. PASSING A SCHOOL BUS; OFFENSE. (a) An operator on a highway, when approaching from either direction a school bus stopped on the highway to receive or discharge a student:
(1) shall stop before reaching the school bus when the bus is operating a visual signal as required by Section 547.701; and
(2) may not proceed until:
(A) the school bus resumes motion;
(B) the operator is signaled by the bus driver to proceed; or
(C) the visual signal is no longer actuated.
(b) An operator on a highway having separate roadways is not required to stop:
(1) for a school bus that is on a different roadway; or
(2) if on a controlled-access highway, for a school bus that is stopped:
(A) in a loading zone that is a part of or adjacent to the highway; and
(B) where pedestrians are not permitted to cross the roadway.
(c) An offense under this section is a misdemeanor punishable by a fine of not less than $500 or more than $1,250, except that the offense is:
(1) a misdemeanor punishable by a fine of not less than $1,000 or more than $2,000 if the person is convicted of a second or subsequent offense under this section committed within five years of the date on which the most recent preceding offense was committed;
(2) a Class A misdemeanor if the person causes serious bodily injury to another; or
(3) a state jail felony if the person has been previously convicted under Subdivision (2).
(d) The court may order that the driver’s license of a person convicted of a second or subsequent offense under this section be suspended for not longer than six months beginning on the date of conviction. In this subsection, “driver’s license” has the meaning assigned by Chapter 521.
(e) If a person does not pay the previously assessed fine or costs on a conviction under this section, or is determined by the court to have insufficient resources or income to pay a fine or costs on a conviction under this section, the court may order the person to perform community service. The court shall set the number of hours of service under this subsection.
(f) For the purposes of this section:
(1) a highway is considered to have separate roadways only if the highway has roadways separated by an intervening space on which operation of vehicles is not permitted, a physical barrier, or a clearly indicated dividing section constructed to impede vehicular traffic; and
(2) a highway is not considered to have separate roadways if the highway has roadways separated only by a left turn lane.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1438, Sec. 9, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1325, Sec. 19.06(a), eff. Sept. 1, 2003.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 661 (H.B. 1174), Sec. 1, eff. September 1, 2013.
SUBCHAPTER C. TURNING AND SIGNALS FOR STOPPING AND TURNING
Sec. 545.101. TURNING AT INTERSECTION. (a) To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.
(b) To make a left turn at an intersection, an operator shall:
(1) approach the intersection in the extreme left-hand lane lawfully available to a vehicle moving in the direction of the vehicle; and
(2) after entering the intersection, turn left, leaving the intersection so as to arrive in a lane lawfully available to traffic moving in the direction of the vehicle on the roadway being entered.
(c) On a street or roadway designated for two-way traffic, the operator turning left shall, to the extent practicable, turn in the portion of the intersection to the left of the center of the intersection.
(d) To turn left, an operator who is approaching an intersection having a roadway designated for one-way traffic and for which signs are posted from a roadway designated for one-way traffic and for which signs are posted shall make the turn as closely as practicable to the left-hand curb or edge of the roadway.
(e) The Texas Transportation Commission or a local authority, with respect to a highway in its jurisdiction, may:
(1) authorize the placement of an official traffic-control device in or adjacent to an intersection; and
(2) require a course different from that specified in this section for movement by vehicles turning at an intersection.
Sec. 545.102. TURNING ON CURVE OR CREST OF GRADE. An operator may not turn the vehicle to move in the opposite direction when approaching a curve or the crest of a grade if the vehicle is not visible to the operator of another vehicle approaching from either direction within 500 feet.
Sec. 545.103. SAFELY TURNING. An operator may not turn the vehicle to enter a private road or driveway, otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely.
Sec. 545.104. SIGNALING TURNS; USE OF TURN SIGNALS. (a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
(c) An operator may not light the signals on only one side of the vehicle on a parked or disabled vehicle or use the signals as a courtesy or “do pass” signal to the operator of another vehicle approaching from the rear.
Sec. 545.105. SIGNALING STOPS. An operator may not stop or suddenly decrease the speed of the vehicle without first giving a stop signal as provided by this subchapter to the operator of a vehicle immediately to the rear when there is an opportunity to give the signal.
Sec. 545.106. SIGNALS BY HAND AND ARM OR BY SIGNAL LAMP. (a) Except as provided by Subsection (b), an operator required to give a stop or turn signal shall do so by:
(1) using the hand and arm; or
(2) lighting signal lamps approved by the department.
(b) A motor vehicle in use on a highway shall be equipped with signal lamps, and the required signal shall be given by lighting the lamps, if:
(1) the distance from the center of the top of the steering post to the left outside limit of the body, cab, or load of the motor vehicle is more than two feet; or
(2) the distance from the center of the top of the steering post to the rear limit of the body or load, including the body or load of a combination of vehicles, is more than 14 feet.
Sec. 545.107. METHOD OF GIVING HAND AND ARM SIGNALS. An operator who is permitted to give a hand and arm signal shall give the signal from the left side of the vehicle as follows:
(1) to make a left turn signal, extend hand and arm horizontally;
(2) to make a right turn signal, extend hand and arm upward, except that a bicycle operator may signal from the right side of the vehicle with the hand and arm extended horizontally; and
(3) to stop or decrease speed, extend hand and arm downward.
Sec. 545.151. VEHICLE APPROACHING OR ENTERING INTERSECTION. (a) An operator approaching an intersection:
(1) shall stop, yield, and grant immediate use of the intersection:
(A) in obedience to an official traffic-control device, including a stop sign or yield right-of-way sign; or
(B) if a traffic-control signal is present but does not display an indication in any of the signal heads; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(b) An operator on a single-lane or two-lane street or roadway who approaches an intersection that is not controlled by an official traffic-control device and that is located on a divided highway or on a street or roadway divided into three or more marked traffic lanes:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle on the other street or roadway that is within the intersection or approaching the intersection in such proximity as to be a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(c) An operator on an unpaved street or roadway approaching an intersection of a paved street or roadway:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle on the paved street or roadway that is within the intersection or approaching the intersection in such proximity as to be a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using the paved street or roadway.
(d) Except as provided in Subsection (e), an operator approaching an intersection of a street or roadway that is not controlled by an official traffic-control device:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle that has entered the intersection from the operator’s right or is approaching the intersection from the operator’s right in a proximity that is a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(e) An operator approaching an intersection of a street or roadway from a street or roadway that terminates at the intersection and that is not controlled by an official traffic-control device or controlled as provided by Subsection (b) or (c):
(1) shall stop, yield, and grant immediate use of the intersection to another vehicle that has entered the intersection from the other street or roadway or is approaching the intersection on the other street or roadway in a proximity that is a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with the traffic using the other street or roadway.
(f) An operator who is required by this section to stop and yield the right-of-way at an intersection to another vehicle and who is involved in a collision or interferes with other traffic at the intersection to whom right-of-way is to be given is presumed not to have yielded the right-of-way.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 1325, Sec. 19.05, eff. Sept. 1, 2003.
Sec. 545.152. VEHICLE TURNING LEFT. To turn left at an intersection or into an alley or private road or driveway, an operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate hazard.
Sec. 545.153. VEHICLE ENTERING STOP OR YIELD INTERSECTION. (a) Preferential right-of-way at an intersection may be indicated by a stop sign or yield sign as authorized in Section 544.003.
(b) Unless directed to proceed by a police officer or official traffic-control device, an operator approaching an intersection on a roadway controlled by a stop sign, after stopping as required by Section 544.010, shall yield the right-of-way to a vehicle that has entered the intersection from another highway or that is approaching so closely as to be an immediate hazard to the operator’s movement in or across the intersection.
(c) An operator approaching an intersection on a roadway controlled by a yield sign shall:
(1) slow to a speed that is reasonable under the existing conditions; and
(2) yield the right-of-way to a vehicle in the intersection or approaching on another highway so closely as to be an immediate hazard to the operator’s movement in or across the intersection.
(d) If an operator is required by Subsection (c) to yield and is involved in a collision with a vehicle in an intersection after the operator drove past a yield sign without stopping, the collision is prima facie evidence that the operator failed to yield the right-of-way.
Sec. 545.154. VEHICLE ENTERING OR LEAVING LIMITED-ACCESS OR CONTROLLED-ACCESS HIGHWAY. An operator on an access or feeder road of a limited-access or controlled-access highway shall yield the right-of-way to a vehicle entering or about to enter the access or feeder road from the highway or leaving or about to leave the access or feeder road to enter the highway.
Sec. 545.155. VEHICLE ENTERING HIGHWAY FROM PRIVATE ROAD OR DRIVEWAY. An operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered.
Sec. 545.156. VEHICLE APPROACHED BY AUTHORIZED EMERGENCY VEHICLE. (a) On the immediate approach of an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702, or of a police vehicle lawfully using only an audible signal, an operator, unless otherwise directed by a police officer, shall:
(1) yield the right-of-way;
(2) immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the roadway clear of any intersection; and
(3) stop and remain standing until the authorized emergency vehicle has passed.
(b) This section does not exempt the operator of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
Sec. 545.157. PASSING CERTAIN VEHICLES. (a) This section applies only to the following vehicles:
(1) a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702;
(2) a stationary tow truck using equipment authorized by Section 547.305(d); and
(3) a Texas Department of Transportation vehicle not separated from the roadway by a traffic control channelizing device and using visual signals that comply with the standards and specifications adopted under Section 547.105.
(b) On approaching a vehicle described by Subsection (a), an operator, unless otherwise directed by a police officer, shall:
(1) vacate the lane closest to the vehicle when driving on a highway with two or more lanes traveling in the direction of the vehicle; or
(2) slow to a speed not to exceed:
(A) 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or more; or
(B) five miles per hour when the posted speed limit is less than 25 miles per hour.
(c) A violation of this section is:
(1) a misdemeanor punishable under Section 542.401;
(2) a misdemeanor punishable by a fine of $500 if the violation results in property damage; or
(3) a Class B misdemeanor if the violation results in bodily injury.
(d) If conduct constituting an offense under this section also constitutes an offense under another section of this code or the Penal Code, the actor may be prosecuted under either section or under both sections.
(e) In this section:
(1) “Tow truck” means a vehicle that:
(A) has been issued a permit under Subchapter C, Chapter 2308, Occupations Code; and
(B) is operated by a person licensed under Subchapter D, Chapter 2308, Occupations Code.
(2) “Traffic control channelizing device” means equipment used to warn and alert drivers of conditions created by work activities in or near the traveled way, to protect workers in a temporary traffic control zone, and to guide drivers and pedestrians safely. The term includes a traffic cone, tubular marker, vertical panel, drum, barricade, temporary raised island, concrete or cable barrier, guardrail, or channelizer.
Added by Acts 2003, 78th Leg., ch. 327, Sec. 2, eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 229 (H.B. 378), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 6 (S.B. 510), Sec. 1, eff. September 1, 2013.
SUBCHAPTER E. STREETCARS
Sec. 545.201. PASSING STREETCAR TO LEFT. (a) An operator may not pass to the left or drive on the left side of a streetcar moving in the same direction, even if the streetcar is temporarily at rest, unless the operator:
(1) is directed to do so by a police officer;
(2) is on a one-way street; or
(3) is on a street on which the location of the tracks prevents compliance with this section.
(b) An operator when lawfully passing to the left of a streetcar that has stopped to receive or discharge a passenger:
(1) shall reduce speed;
(2) may proceed only on exercising due caution for pedestrians; and
(3) shall accord a pedestrian the right-of-way as required by this subtitle.
Sec. 545.202. PASSING STREETCAR TO RIGHT. (a) An operator passing to the right of a streetcar stopped or about to stop to receive or discharge a passenger shall:
(1) stop the vehicle at least five feet to the rear of the nearest running board or door of the streetcar; and
(2) remain standing until all passengers have entered the streetcar or, on leaving, have reached a place of safety.
(b) An operator is not required to stop before passing a streetcar to the right if a safety zone has been established and may proceed past the streetcar at a reasonable speed and with due caution for the safety of pedestrians.
Sec. 545.203. DRIVING ON STREETCAR TRACKS. (a) An operator on a streetcar track in front of a streetcar shall move the operator’s vehicle off the track as soon as possible after a signal from the operator of the streetcar.
(b) An operator may not drive on or cross a streetcar track in an intersection in front of a streetcar crossing the intersection.
(c) An operator who is passing a streetcar may not turn in front of the streetcar so as to interfere with or impede its movement.
Sec. 545.204. STREETCAR APPROACHED BY AUTHORIZED EMERGENCY VEHICLE. (a) On the immediate approach of an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702, or of a police vehicle lawfully using only an audible signal, the operator of a streetcar shall immediately stop the streetcar clear of any intersection and remain there until the authorized emergency vehicle has passed, unless otherwise directed by a police officer.
(b) This section does not exempt the operator of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
Sec. 545.205. CROSSING FIRE HOSE. An operator of a streetcar may not, without the consent of the fire department official in command, drive over an unprotected hose of a fire department when the hose is on a streetcar track and intended for use at a fire or alarm of fire.
Sec. 545.206. OBSTRUCTION OF OPERATOR’S VIEW OR DRIVING MECHANISM. A passenger in a streetcar may not ride in a position that interferes with the operator’s view ahead or to the side or with control over the driving mechanism of the streetcar.
SUBCHAPTER F. SPECIAL STOPS AND SPEED RESTRICTIONS
Sec. 545.251. OBEDIENCE TO SIGNAL INDICATING APPROACH OF TRAIN. (a) An operator approaching a railroad grade crossing shall stop not closer than 15 feet or farther than 50 feet from the nearest rail if:
(1) a clearly visible railroad signal warns of the approach of a railroad train;
(2) a crossing gate is lowered, or a flagger warns of the approach or passage of a train;
(3) a railroad engine approaching within approximately 1,500 feet of the highway crossing emits a signal audible from that distance and the engine is an immediate hazard because of its speed or proximity to the crossing;
(4) an approaching railroad train is plainly visible to the operator and is in hazardous proximity to the crossing; or
(5) the operator is required to stop by:
(A) other law;
(B) a rule adopted under a statute;
(C) an official traffic-control device; or
(D) a traffic-control signal.
(b) An operator of a vehicle required by Subsection (a) to stop shall remain stopped until permitted to proceed and it is safe to proceed.
(c) An operator of a vehicle who approaches a railroad grade crossing equipped with railroad crossbuck signs without automatic, electric, or mechanical signal devices, crossing gates, or a flagger warning of the approach or passage of a train shall yield the right-of-way to a train in hazardous proximity to the crossing, and proceed at a speed that is reasonable for the existing conditions. If required for safety, the operator shall stop at a clearly marked stop line before the grade crossing or, if no stop line exists, not closer than 15 feet or farther than 50 feet from the nearest rail.
(d) An operator commits an offense if the operator drives around, under, or through a crossing gate or a barrier at a railroad crossing while the gate or barrier is closed, being closed, or being opened.
(e) In a prosecution under this section, proof that at the time of the offense a train was in hazardous proximity to the crossing and that the train was plainly visible to the operator is prima facie evidence that it was not safe for the operator to proceed.
(f) An offense under this section is punishable by a fine of not less than $50 or more than $200.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(a), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1097, Sec. 1, eff. Sept. 1, 1997.
Sec. 545.252. ALL VEHICLES TO STOP AT CERTAIN RAILROAD GRADE CROSSINGS. (a) The Texas Department of Transportation or a local authority, with respect to a highway in its jurisdiction, may:
(1) designate a railroad grade crossing as particularly dangerous; and
(2) erect a stop sign or other official traffic-control device at the grade crossing.
(b) An operator approaching a stop sign or other official traffic-control device that requires a stop and that is erected under Subsection (a) shall stop not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad and may proceed only with due care.
(c) The costs of installing and maintaining a mechanically operated grade crossing safety device, gate, sign, or signal erected under this section shall be apportioned and paid on the same percentage ratio and in the same proportionate amounts by this state and all participating political subdivisions of this state as costs are apportioned and paid between the state and the United States.
(d) An offense under this section is punishable by a fine of not less than $50 or more than $200.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(b), eff. Sept. 1, 1997.
Sec. 545.253. BUSES TO STOP AT ALL RAILROAD GRADE CROSSINGS. (a) Except as provided by Subsection (c), the operator of a motor bus carrying passengers for hire, before crossing a railroad grade crossing:
(1) shall stop the vehicle not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and signals indicating the approach of a train; and
(3) may not proceed until it is safe to do so.
(b) After stopping as required by Subsection (a), an operator described by Subsection (a) shall proceed without manually shifting gears while crossing the track.
(c) A vehicle is not required to stop at the crossing if a police officer or a traffic-control signal directs traffic to proceed.
(d) This section does not apply at a railway grade crossing in a business or residence district.
(e) An offense under this section is punishable by a fine of not less than $50 or more than $200.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(c), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1061, Sec. 15, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1438, Sec. 10, eff. Sept. 1, 1997.
Sec. 545.2535. SCHOOL BUSES TO STOP AT ALL RAILROAD GRADE CROSSINGS. (a) Except as provided by Subsection (c), the operator of a school bus, before crossing a track at a railroad grade crossing:
(1) shall stop the vehicle not closer than 15 feet or farther than 50 feet from the track;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and signals indicating the approach of a train; and
(3) may not proceed until it is safe to do so.
(b) After stopping as required by Subsection (a), the operator may proceed in a gear that permits the vehicle to complete the crossing without a change of gears. The operator may not shift gears while crossing the track.
(c) An operator is not required to stop at:
(1) an abandoned railroad grade crossing that is marked with a sign reading “tracks out of service”; or
(2) an industrial or spur line railroad grade crossing that is marked with a sign reading “exempt.”
(d) A sign under Subsection (c) may be erected only by or with the consent of the appropriate state or local governmental official.
Added by Acts 1997, 75th Leg., ch. 1061, Sec. 16, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1438, Sec. 11, eff. Sept. 1, 1997.
Sec. 545.254. VEHICLES CARRYING EXPLOSIVE SUBSTANCES OR FLAMMABLE LIQUIDS. (a) Before crossing a railroad grade crossing, an operator of a vehicle that has an explosive substance or flammable liquid as the vehicle’s principal cargo and that is moving at a speed of more than 20 miles per hour:
(1) shall reduce the speed of the vehicle to 20 miles per hour or less before coming within 200 feet of the nearest rail of the railroad;
(2) shall listen and look in both directions along the track for an approaching train and for signals indicating the approach of a train; and
(3) may not proceed until the operator determines that the course is clear.
(b) The operator of a vehicle that has an explosive substance or flammable liquid as the vehicle’s principal cargo, before crossing a railroad grade crossing on a highway in a municipality:
(1) shall stop the vehicle not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and for signals indicating the approach of a train; and
(3) may not proceed until the operator determines that the course is clear.
(c) Subsections (a) and (b) do not apply:
(1) if a police officer, crossing flagger, or traffic-control signal directs traffic to proceed;
(2) where a railroad flashing signal is installed and does not indicate an approaching train;
(3) to an abandoned or exempted grade crossing that is clearly marked by or with the consent of the state, if the markings can be read from the operator’s location;
(4) at a streetcar crossing in a business or residential district of a municipality; or
(5) to a railroad track used exclusively for industrial switching purposes in a business district.
(d) This section does not exempt the operator from compliance with Section 545.251 or 545.252.
(e) An offense under this section is punishable by a fine of not less than $50 or more than $200.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(d), eff. Sept. 1, 1997.
Sec. 545.255. MOVING HEAVY EQUIPMENT AT RAILROAD GRADE CROSSINGS. (a) This section applies only to:
(1) a crawler-type tractor, steam shovel, derrick, or roller; and
(2) any other equipment or structure with:
(A) a normal operating speed of 10 miles per hour or less; or
(B) a vertical body or load clearance of less than one-half inch per foot of the distance between two adjacent axles or less than nine inches measured above the level surface of a roadway.
(b) An operator of a vehicle or equipment may not move on or across a track at a railroad grade crossing unless the operator has given notice to a station agent of the railroad and given the railroad reasonable time to provide proper protection at the crossing.
(c) To move a vehicle or equipment on or across a track at a railroad grade crossing, the operator:
(1) shall stop the vehicle or equipment not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and for signals indicating the approach of a train; and
(3) may not proceed until it is safe to cross the track.
(d) An operator of a vehicle or equipment may not cross a railroad grade crossing when warning of the immediate approach of a railroad car or train is given by automatic signal, crossing gates, a flagger, or otherwise. If a flagger is provided by the railroad, the operator shall move the vehicle or equipment over the crossing at the flagger’s direction.
(e) An offense under this section is punishable by a fine of not less than $50 or more than $200.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(e), eff. Sept. 1, 1997.
Sec. 545.2555. REPORT AND INVESTIGATION OF CERTAIN RAILROAD CROSSING VIOLATIONS. (a) A person who on site observes a violation of Section 545.251, 545.252, 545.253, 545.254, or 545.255 may file a report of the violation if the person:
(1) is an on-engine employee of a railroad; and
(2) observes the violation while on a moving engine.
(b) A report under this section must:
(1) be made:
(A) on a form approved by the department; and
(B) not later than 72 hours after the violation;
(2) be filed with:
(A) an office of the department located in the county in which the violation occurred;
(B) the sheriff of the county in which the violation occurred, if the violation occurred in the unincorporated area of the county; or
(C) the police department of a municipality, if the violation occurred in the municipality; and
(3) contain, in addition, to any other required information:
(A) the date, time, and location of the violation;
(B) the license plate number and a description of the vehicle involved in the violation;
(C) a description of the operator of the vehicle involved in the violation; and
(D) the name, address, and telephone number of the person filing the report.
(c) A peace officer may:
(1) before the seventh day after the date a report under this section is filed, initiate an investigation of the alleged violation; and
(2) request the owner of the reported vehicle, as shown by the vehicle registration records of the Texas Department of Transportation, to disclose the name and address of the individual operating that vehicle at the time of the violation alleged in the report.
(d) Unless the owner of the reported vehicle believes that to provide the peace officer with the name and address of the individual operating the vehicle at the time of the violation alleged would incriminate the owner, the owner shall, to the best of the owner’s ability, disclose that individual’s name and address.
(e) An investigating peace officer who has probable cause to believe that a charge against an individual for a violation of Section 545.251, 545.252, 545.253, 545.254, or 545.255 is justified may:
(1) prepare a written notice to appear in court that complies with Sections 543.003, 543.006, and 543.007; and
(2) deliver the notice to the individual named in the notice in person or by certified mail.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 30.108(a), eff. Sept. 1, 1997.
Sec. 545.256. EMERGING FROM AN ALLEY, DRIVEWAY, OR BUILDING. An operator emerging from an alley, driveway, or building in a business or residence district shall:
(1) stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway;
(2) yield the right-of-way to a pedestrian to avoid collision; and
(3) on entering the roadway, yield the right-of-way to an approaching vehicle.
Sec. 545.301. STOPPING, STANDING, OR PARKING OUTSIDE A BUSINESS OR RESIDENCE DISTRICT. (a) An operator may not stop, park, or leave standing an attended or unattended vehicle on the main traveled part of a highway outside a business or residence district unless:
(1) stopping, parking, or leaving the vehicle off the main traveled part of the highway is not practicable;
(2) a width of highway beside the vehicle is unobstructed and open for the passage of other vehicles; and
(3) the vehicle is in clear view for at least 200 feet in each direction on the highway.
(b) This section does not apply to an operator of:
(1) a vehicle that is disabled while on the paved or main traveled part of a highway if it is impossible to avoid stopping and temporarily leaving the vehicle on the highway;
(2) a vehicle used exclusively to transport solid, semisolid, or liquid waste operated at the time in connection with the removal or transportation of solid, semisolid, or liquid waste from a location adjacent to the highway; or
(3) a tow truck, as defined by Section 545.157(e), that is performing towing duties under Chapter 2308, Occupations Code.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 782 (S.B. 1093), Sec. 3, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 229 (H.B. 378), Sec. 2, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 6 (S.B. 510), Sec. 2, eff. September 1, 2013.
Sec. 545.302. STOPPING, STANDING, OR PARKING PROHIBITED IN CERTAIN PLACES. (a) An operator may not stop, stand, or park a vehicle:
(1) on the roadway side of a vehicle stopped or parked at the edge or curb of a street;
(2) on a sidewalk;
(3) in an intersection;
(4) on a crosswalk;
(5) between a safety zone and the adjacent curb or within 30 feet of a place on the curb immediately opposite the ends of a safety zone, unless the governing body of a municipality designates a different length by signs or markings;
(6) alongside or opposite a street excavation or obstruction if stopping, standing, or parking the vehicle would obstruct traffic;
(7) on a bridge or other elevated structure on a highway or in a highway tunnel;
(8) on a railroad track; or
(9) where an official sign prohibits stopping.
(b) An operator may not, except momentarily to pick up or discharge a passenger, stand or park an occupied or unoccupied vehicle:
(1) in front of a public or private driveway;
(2) within 15 feet of a fire hydrant;
(3) within 20 feet of a crosswalk at an intersection;
(4) within 30 feet on the approach to a flashing signal, stop sign, yield sign, or traffic-control signal located at the side of a roadway;
(5) within 20 feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within 75 feet of the entrance, if the entrance is properly marked with a sign; or
(6) where an official sign prohibits standing.
(c) An operator may not, except temporarily to load or unload merchandise or passengers, park an occupied or unoccupied vehicle:
(1) within 50 feet of the nearest rail of a railroad crossing; or
(2) where an official sign prohibits parking.
(d) A person may stop, stand, or park a bicycle on a sidewalk if the bicycle does not impede the normal and reasonable movement of pedestrian or other traffic on the sidewalk.
(e) A municipality may adopt an ordinance exempting a private vehicle operated by an elevator constructor responding to an elevator emergency from Subsections (a)(1), (a)(5), (a)(6), (a)(9), (b), and (c).
(f) Subsections (a), (b), and (c) do not apply if the avoidance of conflict with other traffic is necessary or if the operator is complying with the law or the directions of a police officer or official traffic-control device.
(g) If the governing body of a municipality determines that it is necessary to improve the economic development of the municipality’s central business district and that it will not adversely affect public safety, the governing body may adopt an ordinance regulating the standing, stopping, or parking of a vehicle at a place described by Subsection (a)(1), other than a road or highway in the state highway system, in the central business district of the municipality as defined in the ordinance. To the extent of any conflict between the ordinance and Subsection (a)(1), the ordinance controls.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 814, Sec. 1, eff. June 18, 1999.
Sec. 545.303. ADDITIONAL PARKING REGULATIONS. (a) An operator who stops or parks on a two-way roadway shall do so with the right-hand wheels of the vehicle parallel to and within 18 inches of the right-hand curb or edge of the roadway.
(b) An operator who stops or parks on a one-way roadway shall stop or park the vehicle parallel to the curb or edge of the roadway in the direction of authorized traffic movement with the right-hand wheels within 18 inches of the right-hand curb or edge of the roadway or the left-hand wheels within 18 inches of the left-hand curb or edge of the roadway. This subsection does not apply where a local ordinance otherwise regulates stopping or parking on the one-way roadway.
(c) A local authority by ordinance may permit angle parking on a roadway. This subsection does not apply to a federal-aid or state highway unless the director of the Texas Department of Transportation determines that the roadway is wide enough to permit angle parking without interfering with the free movement of traffic.
(d) The Texas Department of Transportation, on a highway under the jurisdiction of that department, may place signs prohibiting or restricting the stopping, standing, or parking of a vehicle on the highway where the director of the Texas Department of Transportation determines that stopping, standing, or parking is dangerous to, or would unduly interfere with, the free movement of traffic on the highway.
(e) To the extent of any conflict between Subsection (a) or (b) and a municipal ordinance adopted under Section 545.302(g), the ordinance controls.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 814, Sec. 2, eff. June 18, 1999.
Sec. 545.304. MOVING THE VEHICLE OF ANOTHER; UNLAWFUL PARKING. A person may not move a vehicle that is not lawfully under the person’s control:
(1) into an area where a vehicle is prohibited under Section 545.302; or
(2) away from a curb a distance that is unlawful under Section 545.303.
Sec. 545.305. REMOVAL OF UNLAWFULLY STOPPED VEHICLE. (a) A peace officer listed under Article 2.12, Code of Criminal Procedure, or a license and weight inspector of the department may remove or require the operator or a person in charge of a vehicle to move a vehicle from a highway if the vehicle:
(1) is unattended on a bridge, viaduct, or causeway or in a tube or tunnel and the vehicle is obstructing traffic;
(2) is unlawfully parked and blocking the entrance to a private driveway;
(3) has been reported as stolen;
(4) is identified as having been stolen in a warrant issued on the filing of a complaint;
(5) is unattended and the officer has reasonable grounds to believe that the vehicle has been abandoned for longer than 48 hours;
(6) is disabled so that normal operation is impossible or impractical and the owner or person in charge of the vehicle is:
(A) incapacitated and unable to provide for the vehicle’s removal or custody; or
(B) not in the immediate vicinity of the vehicle;
(7) is disabled so that normal operation is impossible or impractical and the owner or person in charge of the vehicle does not designate a particular towing or storage company;
(8) is operated by a person an officer arrests for an alleged offense and the officer is required by law to take the person into custody; or
(9) is, in the opinion of the officer, a hazard, interferes with a normal function of a governmental agency, or because of a catastrophe, emergency, or unusual circumstance is imperiled.
(b) An officer acting under Subsection (a) may require that the vehicle be taken to:
(1) the nearest garage or other place of safety;
(2) a garage designated or maintained by the governmental agency that employs the officer; or
(3) a position off the paved or main traveled part of the highway.
(c) A law enforcement agency other than the department that removes an abandoned vehicle in an unincorporated area shall notify the sheriff.
(d) The owner of a vehicle that is removed or stored under this section is liable for all reasonable towing and storage fees incurred.
(e) In this section:
(1) “Towing company” means an individual, corporation, partnership, or other association engaged in the business of towing vehicles on a highway for compensation or with the expectation of compensation for the towing or storage of the vehicles and includes the owner, operator, employee, or agent of a towing company.
(2) “Storage company” means an individual, corporation, partnership, or other association engaged in the business of storing or repairing vehicles for compensation or with the expectation of compensation for the storage or repair of vehicles and includes the owner, operator, employee, or agent of a storage company.
Sec. 545.3051. REMOVAL OF PERSONAL PROPERTY FROM ROADWAY OR RIGHT-OF-WAY. (a) In this section:
(1) “Authority” means:
(A) a metropolitan rapid transit authority operating under Chapter 451; or
(B) a regional transportation authority operating under Chapter 452.
(2) “Law enforcement agency” means:
(A) the department;
(B) the police department of a municipality;
(C) the sheriff’s office of a county; or
(D) a constable’s office of a county.
(3) “Personal property” means:
(A) a vehicle described by Section 545.305;
(B) spilled cargo;
(C) a hazardous material as defined by 49 U.S.C. Section 5102 and its subsequent amendments; or
(D) a hazardous substance as defined by Section 26.263, Water Code.
(b) An authority or a law enforcement agency may remove personal property from a roadway or right-of-way if the authority or law enforcement agency determines that the property blocks the roadway or endangers public safety.
(c) Personal property may be removed under this section without the consent of the owner or carrier of the property.
(d) The owner and any carrier of personal property removed under this section shall reimburse the authority or law enforcement agency for any reasonable cost of removal and disposition of the property.
(e) Notwithstanding any other provision of law, an authority or a law enforcement agency is not liable for:
(1) any damage to personal property removed from a roadway or right-of-way under this section, unless the removal is carried out recklessly or in a grossly negligent manner; or
(2) any damage resulting from the failure to exercise the authority granted by this section.
Added by Acts 2003, 78th Leg., ch. 803, Sec. 1, eff. June 20, 2003.
Sec. 545.306. REGULATION OF TOWING COMPANIES IN CERTAIN COUNTIES. (a) The commissioners court of a county with a population of 3.3 million or more shall by ordinance provide for the licensing of or the granting of a permit to a person to remove or store a vehicle authorized by Section 545.305 to be removed in an unincorporated area of the county. The ordinance must include rules to ensure the protection of the public and the safe and efficient operation of towing and storage services in the county and may not regulate or restrict the use of lighting equipment more than the extent allowed by state and federal law. The sheriff shall determine the rules included in the ordinance with the review and consent of the commissioners court.
(b) The commissioners court shall set the fee for the license or permit in an amount that reasonably offsets the costs of enforcing the ordinance. The commissioners court shall use each license or permit fee to pay salaries and expenses of the sheriff’s office for conducting inspections to determine compliance with the ordinance and laws relating to dealers in scrap metal and salvage.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 669, Sec. 143, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1034, Sec. 3, eff. Sept. 1, 2003.
Sec. 545.307. OVERNIGHT PARKING OF COMMERCIAL MOTOR VEHICLE IN OR NEAR RESIDENTIAL SUBDIVISION. (a) In this section:
(1) “Commercial motor vehicle” means:
(A) a commercial motor vehicle, as defined by Section 522.003, and includes a vehicle meeting that definition regardless of whether the vehicle is used for a commercial purpose; or
(B) a road tractor, truck tractor, pole trailer, or semitrailer, as those terms are defined by Section 541.201.
(2) “Residential subdivision” means a subdivision in a county with a population greater than 220,000:
(A) for which a plat is recorded in the county real property records; and
(B) in which the majority of lots are subject to deed restrictions limiting the lots to residential use.
(b) Except as provided by Subsection (b-1), after 10 p.m. and before 6 a.m., a person may not park a commercial motor vehicle or leave the vehicle parked on a street that is maintained by a county or municipality and for which signs are posted as provided by Subsection (c) if the street:
(1) is located within a residential subdivision; or
(2) is adjacent to a residential subdivision and within 1,000 feet of the property line of a residence, school, place of worship, or park.
(b-1) A person may park a commercial motor vehicle or leave the vehicle parked on a street for which signs are posted as provided by Subsection (c) if the commercial motor vehicle:
(1) is transporting persons or property to or from the residential subdivision or performing work in the subdivision; and
(2) remains parked in or adjacent to the subdivision only for the period necessary to complete the transportation or work.
(c) The residents of a residential subdivision may petition a county or municipality in which the subdivision is located for the posting of signs prohibiting the overnight parking of a commercial motor vehicle in the subdivision or on a street adjacent to the subdivision and within 1,000 feet of the property line of a residence, school, place of worship, or park. The petition must be signed by at least 25 percent of the owners or tenants of residences in the subdivision. Not more than one person for each residence may sign the petition, and each person signing must be at least 18 years of age. Promptly after the filing of a petition meeting the requirements of this subsection and subject to Subsection (d), the county or municipality receiving the petition shall post the signs. The signs must:
(1) be posted:
(A) at each entrance of the subdivision through which a commercial motor vehicle may enter the subdivision or within the subdivision if there is not defined entrance to the subdivision; or
(B) on a street adjacent to the subdivision; and
(2) state, in letters at least two inches in height, that overnight parking of a commercial motor vehicle is prohibited in the subdivision or on a street adjacent to the subdivision.
(d) A county or municipality receiving a petition under Subsection (c) may condition the posting of the signs on payment by the residents of the residential subdivision of the cost of providing the signs.
(e) A person commits an offense if the person parks a commercial motor vehicle in violation of Subsection (b).
(f) This section does not limit the power of a municipality to regulate the parking of commercial motor vehicles.
(g) For the purposes of this section, contiguous subdivisions that are developed by the same entity or a successor to that entity and that are given the same public name or a variation of the same public name are considered one subdivision. Separation of one of the subdivisions from another by a road, stream, greenbelt, or similar barrier does not make the subdivisions noncontiguous.
(h) This section does not apply to:
(1) a vehicle owned by a utility that an employee of the utility who is on call 24 hours a day parks at the employee’s residence; or
(2) a vehicle owned by a commercial establishment that is parked on the street adjacent to where the establishment is located.
Added by Acts 1997, 75th Leg., ch. 173, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 731, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1419, Sec. 1, eff. June 19, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1021 (H.B. 1522), Sec. 1, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1021 (H.B. 1522), Sec. 2, eff. September 1, 2007.
Sec. 545.308. PRESUMPTION. The governing body of a local authority, by ordinance, order, or other official action, may provide that in a prosecution for an offense under this subchapter involving the stopping, standing, or parking of an unattended motor vehicle it is presumed that the registered owner of the vehicle is the person who stopped, stood, or parked the vehicle at the time and place the offense occurred.
Added by Acts 2001, 77th Leg., ch. 1080, Sec. 2, eff. Sept. 1, 2001.
SUBCHAPTER H. SPEED RESTRICTIONS
Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.
(b) An operator:
(1) may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing; and
(2) shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care.
(c) An operator shall, consistent with Subsections (a) and (b), drive at an appropriate reduced speed if:
(1) the operator is approaching and crossing an intersection or railroad grade crossing;
(2) the operator is approaching and going around a curve;
(3) the operator is approaching a hill crest;
(4) the operator is traveling on a narrow or winding roadway; and
(5) a special hazard exists with regard to traffic, including pedestrians, or weather or highway conditions.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.109, eff. Sept. 1, 1997.
Sec. 545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.
(b) Unless a special hazard exists that requires a slower speed for compliance with Section 545.351(b), the following speeds are lawful:
(1) 30 miles per hour in an urban district on a street other than an alley and 15 miles per hour in an alley;
(2) except as provided by Subdivision (4), 70 miles per hour on a highway numbered by this state or the United States outside an urban district, including a farm-to-market or ranch-to-market road;
(3) except as provided by Subdivision (4), 60 miles per hour on a highway that is outside an urban district and not a highway numbered by this state or the United States;
(4) outside an urban district:
(A) 60 miles per hour if the vehicle is a school bus that has passed a commercial motor vehicle inspection under Section 548.201 and is on a highway numbered by the United States or this state, including a farm-to-market road; or
(B) 50 miles per hour if the vehicle is a school bus that:
(i) has not passed a commercial motor vehicle inspection under Section 548.201; or
(ii) is traveling on a highway not numbered by the United States or this state;
(5) on a beach, 15 miles per hour; or
(6) on a county road adjacent to a public beach, 15 miles per hour, if declared by the commissioners court of the county.
(c) The speed limits for a bus or other vehicle engaged in the business of transporting passengers for compensation or hire, for a commercial vehicle used as a highway post office vehicle for highway post office service in the transportation of United States mail, for a light truck, and for a school activity bus are the same as required for a passenger car at the same time and location.
(d) In this section:
(1) “Interstate highway” means a segment of the national system of interstate and defense highways that is:
(A) located in this state;
(B) officially designated by the Texas Transportation Commission; and
(C) approved under Title 23, United States Code.
(2) “Light truck” means a truck with a manufacturer’s rated carrying capacity of not more than 2,000 pounds, including a pick-up truck, panel delivery truck, and carry-all truck.
(3) “Urban district” means the territory adjacent to and including a highway, if the territory is improved with structures that are used for business, industry, or dwelling houses and are located at intervals of less than 100 feet for a distance of at least one-quarter mile on either side of the highway.
(e) An entity that establishes or alters a speed limit under this subchapter shall establish the same speed limit for daytime and nighttime.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.110(a), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1020, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 663, Sec. 2, eff. June 18, 1999; Acts 1999, 76th Leg., ch. 739, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1346, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 1, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 2, eff. September 1, 2011.
Sec. 545.353. AUTHORITY OF TEXAS TRANSPORTATION COMMISSION TO ALTER SPEED LIMITS. (a) If the Texas Transportation Commission determines from the results of an engineering and traffic investigation that a prima facie speed limit in this subchapter is unreasonable or unsafe on a part of the highway system, the commission, by order recorded in its minutes, and except as provided in Subsection (d), may determine and declare:
(1) a reasonable and safe prima facie speed limit; and
(2) another reasonable and safe speed because of wet or inclement weather.
(b) In determining whether a prima facie speed limit on a part of the highway system is reasonable and safe, the commission shall consider the width and condition of the pavement, the usual traffic at the affected area, and other circumstances.
(c) A prima facie speed limit that is declared by the commission under this section is effective when the commission erects signs giving notice of the new limit. A new limit that is enacted for a highway under this section is effective at all times or at other times as determined.
(d) Except as provided by Subsection (h-1), the commission may not:
(1) modify the rules established by Section 545.351(b);
(2) establish a speed limit of more than 75 miles per hour; or
(3) increase the speed limit for a vehicle described by Section 545.352(b)(4).
(e) The commission, in conducting the engineering and traffic investigation specified by Subsection (a), shall follow the “Procedure for Establishing Speed Zones” as adopted by the commission. The commission may revise the procedure to accommodate technological advancement in traffic operation, the design and construction of highways and motor vehicles, and the safety of the motoring public.
(f) The commission’s authority to alter speed limits applies:
(1) to any part of a highway officially designated or marked by the commission as part of the state highway system; and
(2) both inside and outside the limits of a municipality, including a home-rule municipality, for a limited-access or controlled-access highway.
(g) For purposes of this section, “wet or inclement weather” means a condition of the roadway that makes driving on the roadway unsafe and hazardous and that is caused by precipitation, including water, ice, and snow.
(h) Notwithstanding Section 545.352(b), the commission may establish a speed limit of 75 miles per hour on a part of the highway system if the commission determines that 75 miles per hour is a reasonable and safe speed for that part of the highway system.
(h-1) Notwithstanding Section 545.352(b), the commission may establish a speed limit of 80 miles per hour on a part of Interstate Highway 10 or Interstate Highway 20 in Crockett, Culberson, Hudspeth, Jeff Davis, Kerr, Kimble, Pecos, Reeves, Sutton, or Ward County if the commission determines that 80 miles per hour is a reasonable and safe speed for that part of the highway.
(h-2) Notwithstanding Section 545.352(b), the commission may establish a speed limit not to exceed 85 miles per hour on a part of the state highway system if:
(1) that part of the highway system is designed to accommodate travel at that established speed or a higher speed; and
(2) the commission determines, after an engineering and traffic investigation, that the established speed limit is reasonable and safe for that part of the highway system.
(i) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 265, Sec. 9, eff. September 1, 2011.
(j) The commission may not determine or declare, or agree to determine or declare, a prima facie speed limit for environmental purposes on a part of the highway system.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.111, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1518, Sec. 1, eff. June 15, 2001; Acts 2003, 78th Leg., ch. 1331, Sec. 25, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 730 (H.B. 2257), Sec. 1, eff. June 17, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 259 (H.B. 1201), Sec. 11, eff. June 17, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 3, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 9, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 20.019, eff. September 1, 2013.
Sec. 545.3535. AUTHORITY OF TEXAS TRANSPORTATION COMMISSION TO ALTER SPEED LIMITS ON CERTAIN ROADS. (a) The commissioners court of a county by resolution may request the Texas Transportation Commission to determine and declare a reasonable and safe prima facie speed limit that is lower than a speed limit established by Section 545.352 on any part of a farm-to-market or a ranch-to-market road of the highway system that is located in that county and is without improved shoulders.
(b) The commission shall give consideration to local public opinion and may determine and declare a lower speed limit on any part of the road without an engineering and traffic investigation, but the commission must use sound and generally accepted traffic engineering practices in determining and declaring the lower speed limit.
(c) The commission by rule shall establish standards for determining lower speed limits within a set range.
Added by Acts 1997, 75th Leg., ch. 1171, Sec. 1.45, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1346, Sec. 2, eff. Sept. 1, 1999.
Sec. 545.354. AUTHORITY OF REGIONAL TOLLWAY AUTHORITIES TO ALTER SPEED LIMITS ON TURNPIKE PROJECTS. (a) (1) In this section, “authority” means a regional tollway authority governed by Chapter 366.
(2) If an authority determines from the results of an engineering and traffic investigation that a prima facie speed limit described in this subchapter is unreasonable or unsafe on a part of a turnpike constructed and maintained by the authority, the authority by order recorded in its minutes shall determine and declare a reasonable and safe prima facie speed limit for vehicles or classes of vehicles on the turnpike.
(b) In determining whether a prima facie speed limit on a part of a turnpike constructed and maintained by the authority is reasonable or safe, the authority shall consider the width and condition of the pavement, the usual traffic on the turnpike, and other circumstances.
(c) A prima facie speed limit that is declared by the authority in accordance with this section is effective when the authority erects signs giving notice of the new limit. A new limit that is adopted for a turnpike project constructed and maintained by the authority in accordance with this section is effective at all times or at other times as determined.
(d) The authority’s power to alter prima facie speed limits is effective and exclusive on any part of a turnpike project constructed and maintained by the authority inside and outside the limits of a municipality, including a home-rule municipality.
(e) The authority may not:
(1) alter the general rule established by Section 545.351(a); or
(2) establish a speed limit of more than 75 miles per hour.
(f) The authority, in conducting the engineering and traffic investigation specified by Subsection (a), shall follow the procedure for establishing speed zones adopted by the Texas Department of Transportation.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 576, Sec. 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 920, Sec. 18, eff. June 14, 2001; Acts 2003, 78th Leg., ch. 312, Sec. 74, 75, eff. June 18, 2003; Acts 2003, 78th Leg., ch. 1325, Sec. 15.71, 15.72, eff. June 21, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 4, eff. September 1, 2011.
Sec. 545.355. AUTHORITY OF COUNTY COMMISSIONERS COURT TO ALTER SPEED LIMITS. (a) The commissioners court of a county, for a county road or highway outside the limits of the right-of-way of an officially designated or marked highway or road of the state highway system and outside a municipality, has the same authority to increase prima facie speed limits from the results of an engineering and traffic investigation as the Texas Transportation Commission on an officially designated or marked highway of the state highway system.
(b) The commissioners court of a county may declare a lower speed limit of not less than:
(1) 30 miles per hour on a county road or highway to which this section applies, if the commissioners court determines that the prima facie speed limit on the road or highway is unreasonable or unsafe; or
(2) 20 miles per hour in a residence district, unless the roadway has been designated as a major thoroughfare by a city planning commission.
(c) The commissioners court may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 70 miles per hour.
(d) The commissioners court may modify a prima facie speed limit in accordance with this section only by an order entered on its records.
(e) The commissioners court of a county with a population of more than 2.8 million may establish from the results of an engineering and traffic investigation a speed limit of not more than 75 miles per hour on any part of a highway of that county that is a limited-access or controlled-access highway, regardless of the location of the part of the highway.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 58, Sec. 1, eff. May 9, 1997; Acts 1997, 75th Leg., ch. 833, Sec. 1, eff. June 18, 1997; Acts 2003, 78th Leg., ch. 852, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 5, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 936 (H.B. 1607), Sec. 1, eff. June 14, 2013.
Sec. 545.356. AUTHORITY OF MUNICIPALITY TO ALTER SPEED LIMITS. (a) The governing body of a municipality, for a highway or part of a highway in the municipality, including a highway of the state highway system, has the same authority to alter by ordinance prima facie speed limits from the results of an engineering and traffic investigation as the Texas Transportation Commission on an officially designated or marked highway of the state highway system. The governing body of a municipality may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 75 miles per hour.
(b) The governing body of a municipality, for a highway or part of a highway in the municipality, including a highway of the state highway system, has the same authority to alter prima facie speed limits from the results of an engineering and traffic investigation as the commission for an officially designated or marked highway of the state highway system, when the highway or part of the highway is under repair, construction, or maintenance. A municipality may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 75 miles per hour.
(b-1) Except as provided by Subsection (b-3), the governing body of a municipality, for a highway or a part of a highway in the municipality that is not an officially designated or marked highway or road of the state highway system, may declare a lower speed limit of not less than 25 miles per hour, if the governing body determines that the prima facie speed limit on the highway is unreasonable or unsafe.
(b-2) Subsection (b-1) applies only to a two-lane, undivided highway or part of a highway.
(b-3) The governing body of a municipality with a population of 2,000 or less, for a highway or a part of a highway in the municipality that is a one-lane highway used for two-way access and that is not an officially designated or marked highway or road of the state highway system, may declare a lower speed limit of not less than 10 miles per hour, if the governing body determines that the prima facie speed limit on the highway is unreasonable or unsafe.
(c) A prima facie speed limit that is altered by the governing body of a municipality under Subsection (b), (b-1), or (b-3) is effective when the governing body erects signs giving notice of the new limit and at all times or at other times as determined.
(d) The governing body of a municipality that declares a lower speed limit on a highway or part of a highway under Subsection (b-1) or (b-3), not later than February 1 of each year, shall publish on its Internet website and submit to the department a report that compares for each of the two previous calendar years:
(1) the number of traffic citations issued by peace officers of the municipality and the alleged speed of the vehicles, for speed limit violations on the highway or part of the highway;
(2) the number of warning citations issued by peace officers of the municipality on the highway or part of the highway; and
(3) the number of vehicular accidents that resulted in injury or death and were attributable to speed limit violations on the highway or part of the highway.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 166 (H.B. 87), Sec. 1, eff. May 27, 2005.
Acts 2009, 81st Leg., R.S., Ch. 1144 (H.B. 2682), Sec. 1, eff. June 19, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 6, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1016 (H.B. 2596), Sec. 1, eff. June 17, 2011.
Sec. 545.3561. AUTHORITY OF MUNICIPALITY OR COUNTY TO TEMPORARILY LOWER SPEED LIMIT AT VEHICULAR ACCIDENT RECONSTRUCTION SITE. (a) The governing body of a municipality by ordinance may give a designated official with transportation engineering experience establishing speed limits discretion to temporarily lower a prima facie speed limit for a highway or part of a highway in the municipality, including a highway of the state highway system, at the site of an investigation using vehicular accident reconstruction.
(b) A county commissioners court by order may give a designated official with transportation engineering experience establishing speed limits discretion to temporarily lower prima facie speed limits for a county road or highway outside the boundaries of a municipality at the site of an investigation using vehicular accident reconstruction. The authority granted under this subsection does not include a road or highway in the state highway system.
(c) The Texas Department of Transportation shall develop safety guidelines for the use of vehicular accident reconstruction in investigations. A municipality, county, or designated official shall comply with the guidelines.
(d) A designated official may temporarily lower prima facie speed limits without the approval of or permission from the Texas Department of Transportation. A designated official who intends to temporarily lower a prima facie speed limit at the site of an investigation using vehicular accident reconstruction shall, at least 48 hours before temporary speed limit signs are posted for the vehicular accident reconstruction site, provide to the Texas Department of Transportation notice that includes:
(1) the date and time of the accident reconstruction;
(2) the location of the accident reconstruction site;
(3) the entities involved at the site;
(4) the general size of the area affected by the site; and
(5) an estimate of how long the site will be used for the accident reconstruction.
(e) A temporary speed limit established under this section:
(1) is a prima facie prudent and reasonable speed limit enforceable in the same manner as other prima facie speed limits established under other provisions of this subchapter; and
(2) supersedes any other established speed limit that would permit a person to operate a motor vehicle at a higher rate of speed.
(f) A designated official who temporarily lowers a speed limit shall:
(1) place and maintain at the vehicular accident reconstruction site temporary speed limit signs that conform to the manual and specifications adopted under Section 544.001;
(2) temporarily conceal all other signs on the highway segment affected by the vehicular accident reconstruction site that give notice of a speed limit that would permit a person to operate a motor vehicle at a higher rate of speed; and
(3) remove all temporary speed limit signs placed under Subdivision (1) and concealments of other signs placed under Subdivision (2) when the official finds that the vehicular accident reconstruction is complete and all equipment is removed from the vehicular accident reconstruction site.
(g) A temporary speed limit established under this section is effective when a designated official places temporary speed limit signs and conceals other signs that would permit a person to operate a motor vehicle at a higher rate of speed as required under Subsection (f).
(h) A temporary speed limit established under this section is effective until the designated official under Subsection (a) or (b):
(1) finds that the vehicular accident reconstruction is complete; and
(2) removes all temporary signs, concealments, and equipment used at the vehicular accident reconstruction site.
(i) If a designated official does not comply with the requirements of Subsection (f)(3) for a vehicular accident reconstruction on a state highway associated with the reconstruction, the Texas Department of Transportation may remove signs and concealments.
Added by Acts 2011, 82nd Leg., R.S., Ch. 216 (H.B. 109), Sec. 2, eff. September 1, 2011.
Sec. 545.357. PUBLIC HEARING TO CONSIDER SPEED LIMITS WHERE CERTAIN SCHOOLS ARE LOCATED. (a) The governing body of a municipality in which a public or private elementary or secondary school or an institution of higher education as defined by Section 61.003(8) or (15), Education Code, is located shall on request hold a public hearing at least once each calendar year to consider prima facie speed limits on a highway in the municipality, including a highway of the state highway system, near the school or institution of higher education.
(b) If a county road outside the state highway system is located within 500 feet of a public or private elementary or secondary school or an institution of higher education that is not in a municipality, the commissioners court of the county on request shall hold a public hearing at least once each calendar year to consider the prima facie speed limit on the road near the school or institution of higher education.
(c) A municipal governing body or commissioners court on request may hold one public hearing for all public and private elementary and secondary schools and institutions of higher education in its jurisdiction.
(d) The Texas Transportation Commission, on request, shall hold a public hearing at least once each calendar year to consider prima facie speed limits on highways in the state highway system that are near public or private elementary or secondary schools or institutions of higher education.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 350, Sec. 1, eff. Sept. 1, 1997.
Sec. 545.358. AUTHORITY OF COMMANDING OFFICER OF UNITED STATES MILITARY RESERVATION TO ALTER SPEED LIMITS. The commanding officer of a United States military reservation, for a highway or part of a highway in the military reservation, including a highway of the state highway system, has the same authority by order to alter prima facie speed limits from the results of an engineering and traffic investigation as the Texas Transportation Commission for an officially designated or marked highway of the state highway system. A commanding officer may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 75 miles per hour.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 7, eff. September 1, 2011.
Sec. 545.359. CONFLICTING DESIGNATED SPEED LIMITS. An order of the Texas Transportation Commission declaring a speed limit on a part of a designated or marked route of the state highway system made under Section 545.353 or 545.362 supersedes any conflicting designated speed established under Sections 545.356 and 545.358.
Sec. 545.360. DUTY OF TEXAS TRANSPORTATION COMMISSION AND STATE BOARD OF EDUCATION TO PROVIDE INFORMATION AND ASSISTANCE. The chairman of the Texas Transportation Commission and the chairman of the State Board of Education shall provide assistance and information relevant to consideration of speed limits to commissioners courts, municipal governing bodies, and other interested persons.
Sec. 545.361. SPECIAL SPEED LIMITATIONS. (a) An operator of a motor-driven cycle may not drive at a speed of more than 35 miles per hour during the time specified by Section 547.302(a) unless the cycle is equipped with a headlamp or lamps that reveal a person or vehicle 300 feet ahead.
(b) An operator of a vehicle equipped with solid rubber or cushion tires may not drive at a speed of more than 10 miles per hour.
(c) An operator driving over a bridge or other elevated structure that is a part of a highway may not drive at a speed of more than the maximum speed that can be maintained with safety to the bridge or structure, when signs are posted as provided by this section.
(d) An operator of self-propelled machinery designed or adapted for applying plant food materials or agricultural chemicals and not designed or adapted for the sole purpose of transporting the materials or chemicals may not drive at a speed of more than 30 miles per hour unless the machinery is registered under Chapter 502.
(e) The Texas Transportation Commission, for a state highway, the Texas Turnpike Authority, for any part of a turnpike constructed and maintained by the authority, and a local authority for a highway under the jurisdiction of the local authority, may investigate a bridge or other elevated structure that is a part of a highway. If after conducting the investigation the commission, turnpike authority, or local authority finds that the structure cannot safely withstand vehicles traveling at a speed otherwise permissible under this subtitle, the commission, turnpike authority, or local authority shall:
(1) determine and declare the maximum speed of vehicles that the structure can safely withstand; and
(2) post and maintain signs before each end of the structure stating the maximum speed.
Sec. 545.362. TEMPORARY SPEED LIMITS. (a) Subject to Subsection (c), the Texas Transportation Commission may enter an order establishing prima facie speed limits of not more than 75 miles per hour applicable to all highways, including a turnpike under the authority of the Texas Turnpike Authority or a highway under the control of a municipality or county. An order entered under this section does not have the effect of increasing a speed limit on any highway.
(b) The limits established under this section:
(1) are prima facie prudent and reasonable speed limits enforceable in the same manner as prima facie limits established under other provisions of this subchapter; and
(2) supersede any other established speed limit that would permit a person to operate a motor vehicle at a higher rate of speed.
(c) An order may be issued under Subsection (a) only if the commission finds and states in the order that:
(1) a severe shortage of motor fuel or other petroleum product exists, the shortage was caused by war, national emergency, or other circumstances, and a reduction of speed limits will foster conservation and safety; or
(2) the failure to alter state speed limits will prevent the state from receiving money from the United States for highway purposes.
(d) Unless a specific speed limit is required by federal law or directive under threat of loss of highway money of the United States, the commission may not set prima facie speed limits under this section of all vehicles at less than 60 miles per hour, except on a divided highway of at least four lanes, for which the commission may not set prima facie speed limits of all vehicles at less than 65 miles per hour.
(e) Before the commission may enter an order establishing a prima facie speed limit, it must hold a public hearing preceded by the publication in at least three newspapers of general circulation in the state of a notice of the date, time, and place of the hearing and of the action proposed to be taken. The notice must be published at least 12 days before the date of the hearing. At the hearing, all interested persons may present oral or written testimony regarding the proposed order.
(f) If the commission enters an order under this section, it shall file the order in the office of the governor. The governor shall then make an independent finding of fact and determine the existence of the facts in Subsection (c). Before the 13th day after the date the order is filed in the governor’s office, the governor shall conclude the finding of fact, issue a proclamation stating whether the necessary facts exist to support the issuance of the commission’s order, and file copies of the order and the proclamation in the office of the secretary of state.
(g) If the governor’s proclamation states that the facts necessary to support the issuance of the commission’s order exist, the order takes effect according to Subsection (h). Otherwise, the order has no effect.
(h) In an order issued under this section, the commission may specify the date the order takes effect, but that date may not be sooner than the eighth day after the date the order is filed with the governor. If the order does not have an effective date, it takes effect on the 21st day after the date it is filed with the governor. Unless the order by its own terms expires earlier, it remains in effect until a subsequent order adopted by the procedure prescribed by this section amends or repeals it, except that an order adopted under this section expires when this section expires. The procedure for repealing an order is the same as for adopting an order, except that the commission and the governor must find that the facts required to support the issuance of an order under Subsection (c) no longer exist.
(i) If an order is adopted in accordance with this section, the commission and all governmental authorities responsible for the maintenance of highway speed limit signs shall take appropriate action to conceal or remove all signs that give notice of a speed limit of more than the one contained in the order and to erect appropriate signs. All governmental entities responsible for administering traffic safety programs and enforcing traffic laws shall use all available resources to notify the public of the effect of the order. To accomplish this purpose, the governmental entities shall request the cooperation of all news media in the state.
(j) A change in speed limits under this section is effective until the commission makes a finding that the conditions in Subsection (c) require or authorize an additional change in those speed limits or in the highway or sections of highway to which those speed limits apply.
(k) This section expires when the national maximum speed limits are repealed.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 8, eff. September 1, 2011.
Sec. 545.3625. CONFIDENTIALITY OF VIOLATION INFORMATION: FUEL CONSERVATION SPEED LIMIT. (a) If a person violates a maximum prima facie speed limit imposed under Section 545.362, as that law existed immediately before December 8, 1995, and the person was not traveling at a speed, as alleged in the citation, if not contested by the person, or, if contested by the person, as alleged in the complaint and found by the court, that is greater than the maximum prima facie speed limit for the location that has been established under this chapter, other than under Section 545.362, information in the custody of the department concerning the violation is confidential.
(b) The department may not release the information to any person or to another state governmental entity.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 30.112(a), eff. Sept. 1, 1997.
Sec. 545.363. MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.
(b) When the Texas Transportation Commission, the Texas Turnpike Authority, the commissioners court of a county, or the governing body of a municipality, within the jurisdiction of each, as applicable, as specified in Sections 545.353 to 545.357, determines from the results of an engineering and traffic investigation that slow speeds on a part of a highway consistently impede the normal and reasonable movement of traffic, the commission, authority, county commissioners court, or governing body may determine and declare a minimum speed limit on the highway.
(c) If appropriate signs are erected giving notice of a minimum speed limit adopted under this section, an operator may not drive a vehicle more slowly than that limit except as necessary for safe operation or in compliance with law.
Sec. 545.365. SPEED LIMIT EXCEPTION FOR EMERGENCIES; MUNICIPAL REGULATION. (a) The regulation of the speed of a vehicle under this subchapter does not apply to:
(1) an authorized emergency vehicle responding to a call;
(2) a police patrol; or
(3) a physician or ambulance responding to an emergency call.
(b) A municipality by ordinance may regulate the speed of:
(1) an ambulance;
(2) an emergency medical services vehicle; or
(3) an authorized vehicle operated by a blood or tissue bank.
Sec. 545.401. RECKLESS DRIVING; OFFENSE. (a) A person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine not to exceed $200;
(2) confinement in county jail for not more than 30 days; or
(3) both the fine and the confinement.
(c) Notwithstanding Section 542.001, this section applies to:
(1) a private access way or parking area provided for a client or patron by a business, other than a private residential property or the property of a garage or parking lot for which a charge is made for the storing or parking of motor vehicles; and
(2) a highway or other public place.
(d) Notwithstanding Section 542.004, this section applies to a person, a team, or motor vehicles and other equipment engaged in work on a highway surface.
Sec. 545.402. MOVING A PARKED VEHICLE. An operator may not begin movement of a stopped, standing, or parked vehicle unless the movement can be made safely.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 2194, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 545.404. UNATTENDED MOTOR VEHICLE. An operator may not leave the vehicle unattended without:
(1) stopping the engine;
(2) locking the ignition;
(3) removing the key from the ignition;
(4) setting the parking brake effectively; and
(5) if standing on a grade, turning the front wheels to the curb or side of the highway.
Sec. 545.405. DRIVING ON MOUNTAIN HIGHWAY. An operator moving through a defile or canyon or on a mountain highway shall:
(1) hold the vehicle under control and as near the right-hand edge of the highway as possible; and
(2) on approaching a curve that obstructs the view of the highway for 200 feet, give warning with the horn of the motor vehicle.
Sec. 545.406. COASTING. (a) An operator moving on a downgrade may not coast with the gears or transmission of the vehicle in neutral.
(b) An operator of a truck, tractor, or bus moving on a downgrade may not coast with the clutch disengaged.
Sec. 545.407. FOLLOWING OR OBSTRUCTING FIRE APPARATUS OR AMBULANCE. (a) An operator, unless on official business, may not follow closer than 500 feet a fire apparatus responding to a fire alarm or drive into or park the vehicle in the block where the fire apparatus has stopped to answer a fire alarm.
(b) An operator may not:
(1) follow closer than 500 feet an ambulance that is flashing red lights unless the operator is on official business; or
(2) drive or park the vehicle where an ambulance has been summoned for an emergency call in a manner intended to interfere with the arrival or departure of the ambulance.
Sec. 545.408. CROSSING FIRE HOSE. An operator may not, without the consent of the fire department official in command, drive over an unprotected hose of a fire department if the hose is on a street or private driveway and is intended for use at a fire or alarm of fire.
Sec. 545.409. DRAWBARS AND TRAILER HITCHES; SADDLE-MOUNT TOWING. (a) The drawbar or other connection between a vehicle drawing another vehicle and the drawn vehicle:
(1) must be strong enough to pull all weight drawn; and
(2) may not exceed 15 feet between the vehicles except for a connection between two vehicles transporting poles, pipe, machinery, or other objects of structural nature that cannot readily be dismembered.
(b) An operator drawing another vehicle and using a chain, rope, or cable to connect the vehicles shall display on the connection a white flag or cloth not less than 12 inches square.
(c) A motor vehicle may not draw more than three motor vehicles attached to it by the triple saddle-mount method. In this subsection, “triple saddle-mount method” means the mounting of the front wheels of trailing vehicles on the bed of another vehicle while leaving the rear wheels only of the trailing vehicles in contact with the roadway.
Sec. 545.410. TOWING SAFETY CHAINS. (a) An operator of a passenger car or light truck may not draw a trailer, semitrailer, house trailer, or another motor vehicle unless safety chains of a type approved by the department are attached in a manner approved by the department from the trailer, semitrailer, house trailer, or drawn motor vehicle to the drawing vehicle. This subsection does not apply to the drawing of a trailer or semitrailer used for agricultural purposes.
(b) The department shall adopt rules prescribing the type of safety chains required to be used according to the weight of the trailer, semitrailer, house trailer, or motor vehicle being drawn. The rules shall:
(1) require safety chains to be strong enough to maintain the connection between the trailer, semitrailer, house trailer, or drawn motor vehicle and the drawing vehicle; and
(2) show the proper method to attach safety chains between the trailer, semitrailer, house trailer, or drawn motor vehicle and the drawing vehicle.
(c) Subsection (b) does not apply to trailers, semitrailers, or house trailers that are equipped with safety chains installed by the original manufacturer before the effective date of the rules.
(d) This section does not apply to a trailer, semitrailer, house trailer, or drawn motor vehicle that is operated in compliance with the federal motor carrier safety regulations.
(e) In this section, “safety chains” means flexible tension members connected from the front of a drawn vehicle to the rear of the drawing vehicle to maintain connection between the vehicles if the primary connecting system fails.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.113(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1357, Sec. 1, eff. Sept. 1, 1999.
Sec. 545.411. USE OF REST AREA: OFFENSE. (a) A person commits an offense if the person remains at a rest area for longer than 24 hours or erects a tent, shelter, booth, or structure at the rest area and the person:
(1) has notice while conducting the activity that the activity is prohibited; or
(2) receives notice that the activity is prohibited but does not depart or remove the structure within eight hours after receiving notice.
(b) For purposes of this section, a person:
(1) has notice if a sign stating the prohibited activity and penalty is posted on the premises; or
(2) receives notice if a peace officer orally communicates to the person the prohibited activity and penalty for the offense.
(c) It is an exception to Subsection (a) if a nonprofit organization erects a temporary structure at a rest area to provide food services, food, or beverages to travelers and the Texas Department of Transportation:
(1) finds that the services would constitute a public service for the benefit of the traveling public; and
(2) issues a permit to the organization.
(d) In this section, “rest area” means public real property designated as a rest area, comfort station, picnic area, roadside park, or scenic overlook by the Texas Department of Transportation.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1786, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 545.412. CHILD PASSENGER SAFETY SEAT SYSTEMS; OFFENSE.
(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 and not more than $250.
(b-1) Repealed by Acts 2011, 82nd Leg., 1st C.S., Ch. 4, Sec. 69.01(1), eff. September 28, 2011.
(c) It is a defense to prosecution under this section that the person was operating the vehicle in an emergency or for a law enforcement purpose.
(d) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 8.01.
(e) This section does not apply to a person:
(1) operating a vehicle transporting passengers for hire, excluding third-party transport service providers when transporting clients pursuant to a contract to provide nonemergency Medicaid transportation; or
(2) transporting a child in a vehicle in which all seating positions equipped with child passenger safety seat systems or safety belts are occupied.
(f) In this section:
(1) “Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.
(2) “Passenger vehicle” means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor.
(3) “Safety belt” means a lap belt and any shoulder straps included as original equipment on or added to a vehicle.
(4) “Secured,” in connection with use of a safety belt, means using the lap belt and any shoulder straps according to the instructions of:
(A) the manufacturer of the vehicle, if the safety belt is original equipment; or
(B) the manufacturer of the safety belt, if the safety belt has been added to the vehicle.
(g) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of this section on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(h) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.114(a), eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 618, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 910, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1042, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 8.01, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 2, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 255 (S.B. 61), Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1257 (H.B. 537), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., 1st C.S., Ch. 4 (S.B. 1), Sec. 69.01(1), eff. September 28, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1391 (H.B. 1294), Sec. 1, eff. September 1, 2013.
Sec. 545.4121. DISMISSAL; OBTAINING CHILD PASSENGER SAFETY SEAT SYSTEM. (a) This section applies to an offense committed under Section 545.412.
(b) It is a defense to prosecution of an offense to which this section applies that the defendant provides to the court evidence satisfactory to the court that:
(1) at the time of the offense:
(A) the defendant was not arrested or issued a citation for violation of any other offense;
(B) the defendant did not possess a child passenger safety seat system in the vehicle; and
(C) the vehicle the defendant was operating was not involved in an accident; and
(2) subsequent to the time of the offense, the defendant obtained an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system under Section 545.412(a).
Added by Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 3, eff. September 1, 2005.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1391 (H.B. 1294), Sec. 2, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1391 (H.B. 1294), Sec. 3, eff. September 1, 2013.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1786, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 545.413. SAFETY BELTS; OFFENSE.
(a) A person commits an offense if:
(1) the person:
(A) is at least 15 years of age;
(B) is riding in a passenger vehicle while the vehicle is being operated;
(C) is occupying a seat that is equipped with a safety belt; and
(D) is not secured by a safety belt; or
(2) as the operator of a school bus equipped with a safety belt for the operator’s seat, the person is not secured by the safety belt.
(b) A person commits an offense if the person:
(1) operates a passenger vehicle that is equipped with safety belts; and
(2) allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in the vehicle without requiring the child to be secured by a safety belt, provided the child is occupying a seat that is equipped with a safety belt.
(b-1) A person commits an offense if the person allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in a passenger van designed to transport 15 or fewer passengers, including the driver, without securing the child individually by a safety belt, if the child is occupying a seat that is equipped with a safety belt.
(c) A passenger vehicle or a seat in a passenger vehicle is considered to be equipped with a safety belt if the vehicle is required under Section 547.601 to be equipped with safety belts.
(d) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.
(e) It is a defense to prosecution under this section that:
(1) the person possesses a written statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(2) the person presents to the court, not later than the 10th day after the date of the offense, a statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(3) the person is employed by the United States Postal Service and performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle;
(4) the person is engaged in the actual delivery of newspapers from a vehicle or is performing newspaper delivery duties that require frequent entry into and exit from a vehicle;
(5) the person is employed by a public or private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter into and exit from a vehicle;
(6) the person is operating a commercial vehicle registered as a farm vehicle under the provisions of Section 502.433 that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more; or
(7) the person is the operator of or a passenger in a vehicle used exclusively to transport solid waste and performing duties that require frequent entry into and exit from the vehicle.
(f) The department shall develop and implement an educational program to encourage the wearing of safety belts and to emphasize:
(1) the effectiveness of safety belts and other restraint devices in reducing the risk of harm to passengers in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(g) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 8.01.
(h) In this section, “passenger vehicle,” “safety belt,” and “secured” have the meanings assigned by Section 545.412.
(i) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of Subsection (b) on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(j) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of Subsection (b) of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.115(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 316, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 515, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 618, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 910, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1042, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 8.01, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 431, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 4, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 923 (H.B. 3190), Sec. 4, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 974 (H.B. 3638), Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1257 (H.B. 537), Sec. 2, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 20.020, eff. September 1, 2013.
Sec. 545.414. RIDING IN OPEN BEDS; OFFENSE. (a) A person commits an offense if the person operates an open-bed pickup truck or an open flatbed truck or draws an open flatbed trailer when a child younger than 18 years of age is occupying the bed of the truck or trailer.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200.
(c) It is a defense to prosecution under this section that the person was:
(1) operating or towing the vehicle in a parade or in an emergency;
(2) operating the vehicle to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality;
(3) operating the vehicle on a beach;
(4) operating a vehicle that is the only vehicle owned or operated by the members of a household; or
(5) operating the vehicle in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur.
(d) Compliance or noncompliance with Subsection (a) is not admissible evidence in a civil trial.
(e) In this section, “household” has the meaning assigned by Section 71.005, Family Code.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 79, Sec. 1, eff. Sept. 1, 2001.
Sec. 545.4145. RIDING IN OR ON BOAT OR PERSONAL WATERCRAFT DRAWN BY VEHICLE; OFFENSE. (a) A person commits an offense if the person operates a motor vehicle on a highway or street when a child younger than 18 years of age is occupying a boat or personal watercraft being drawn by the motor vehicle.
(b) It is a defense to prosecution under this section that the person was:
(1) operating the motor vehicle in a parade or in an emergency; or
(2) operating the motor vehicle on a beach.
(c) In this section, “boat” and “personal watercraft” have the meanings assigned by Section 31.003, Parks and Wildlife Code.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1172 (H.B. 2981), Sec. 1, eff. September 1, 2011.
Sec. 545.415. BACKING A VEHICLE. (a) An operator may not back the vehicle unless the movement can be made safely and without interference with other traffic.
(b) An operator may not back the vehicle on a shoulder or roadway of a limited-access or controlled-access highway.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 449, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 545.416. RIDING ON MOTORCYCLE. (a) An operator of a motorcycle shall ride on the permanent and regular seat attached to the motorcycle.
(b) An operator may not carry another person on the motorcycle, and a person who is not operating the motorcycle may not ride on the motorcycle, unless the motorcycle is:
(1) designed to carry more than one person; and
(2) equipped with footrests and handholds for use by the passenger.
(c) If the motorcycle is designed to carry more than one person, a passenger may ride only on the permanent and regular seat, if designed for two persons, or on another seat firmly attached to the motorcycle behind or to the side of the operator.
(d) Except as provided by Subsection (e), an operator may not carry another person on a motorcycle unless the other person is at least five years of age. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 or more than $200. It is a defense to prosecution under this subsection that the operator was operating the motorcycle in an emergency or for a law enforcement purpose.
(e) Subsection (d) does not prohibit an operator from carrying on a motorcycle a person younger than five years of age who is seated in a sidecar attached to the motorcycle.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1257 (H.B. 537), Sec. 3, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 1111 (H.B. 3838), Sec. 3, eff. September 1, 2013.
Sec. 545.417. OBSTRUCTION OF OPERATOR’S VIEW OR DRIVING MECHANISM. (a) An operator may not drive a vehicle when it is loaded so that, or when the front seat has a number of persons, exceeding three, so that:
(1) the view of the operator to the front or sides of the vehicle is obstructed; or
(2) there is interference with the operator’s control over the driving mechanism of the vehicle.
(b) A passenger in a vehicle may not ride in a position that interferes with the operator’s view to the front or sides or control over the driving mechanism of the vehicle.
Sec. 545.418. OPENING VEHICLE DOORS. A person may not:
(1) open the door of a motor vehicle on the side available to moving traffic, unless the door may be opened in reasonable safety without interfering with the movement of other traffic; or
(2) leave a door on the side of a vehicle next to moving traffic open for longer than is necessary to load or unload a passenger.
Sec. 545.4191. PERSON RIDING IN TRAILER OR SEMITRAILER DRAWN BY TRUCK, ROAD TRACTOR, OR TRUCK TRACTOR. (a) A person may not operate a truck, road tractor, or truck tractor when another person occupies a trailer or semitrailer being drawn by the truck, road tractor, or truck tractor.
(b) It is a defense to prosecution under this section that:
(1) the person was operating or towing the vehicle:
(A) in a parade or in an emergency;
(B) to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality; or
(C) in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur;
(2) the person operating or towing the vehicle did not know that another person occupied the trailer or semitrailer; or
(3) the person occupying the trailer or semitrailer was in a part of the trailer or semitrailer designed for human habitation.
(c) An offense under this section is a Class B misdemeanor.
Added by Acts 2003, 78th Leg., ch. 641, Sec. 1, eff. Sept. 1, 2003.
Sec. 545.420. RACING ON HIGHWAY. (a) A person may not participate in any manner in:
(1) a race;
(2) a vehicle speed competition or contest;
(3) a drag race or acceleration contest;
(4) a test of physical endurance of the operator of a vehicle; or
(5) in connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record.
(b) In this section:
(1) “Drag race” means the operation of:
(A) two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other; or
(B) one or more vehicles over a common selected course, from the same place to the same place, for the purpose of comparing the relative speeds or power of acceleration of the vehicle or vehicles in a specified distance or time.
(2) “Race” means the use of one or more vehicles in an attempt to:
(A) outgain or outdistance another vehicle or prevent another vehicle from passing;
(B) arrive at a given destination ahead of another vehicle or vehicles; or
(C) test the physical stamina or endurance of an operator over a long-distance driving route.
(c) [Blank]
(d) Except as provided by Subsections (e)-(h), an offense under Subsection (a) is a Class B misdemeanor.
(e) An offense under Subsection (a) is a Class A misdemeanor if it is shown on the trial of the offense that:
(1) the person has previously been convicted one time of an offense under that subsection; or
(2) the person, at the time of the offense:
(A) was operating the vehicle while intoxicated, as defined by Section 49.01, Penal Code; or
(B) was in possession of an open container, as defined by Section 49.031, Penal Code.
(f) An offense under Subsection (a) is a state jail felony if it is shown on the trial of the offense that the person has previously been convicted two times of an offense under that subsection.
(g) An offense under Subsection (a) is a felony of the third degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered bodily injury.
(h) An offense under Subsection (a) is a felony of the second degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered serious bodily injury or death.
(i) This subsection applies only to a motor vehicle used in the commission of an offense under this section that results in an accident with property damage or personal injury. A peace officer shall require the vehicle to be taken to the nearest licensed vehicle storage facility unless the vehicle is seized as evidence, in which case the vehicle may be taken to a storage facility as designated by the peace officer involved. Notwithstanding Article 18.23, Code of Criminal Procedure, the owner of a motor vehicle that is removed or stored under this subsection is liable for all removal and storage fees incurred and is not entitled to take possession of the vehicle until those fees are paid.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 535, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1258 (H.B. 548), Sec. 1, eff. September 1, 2009.
Sec. 545.421. FLEEING OR ATTEMPTING TO ELUDE POLICE OFFICER; OFFENSE. (a) A person commits an offense if the person operates a motor vehicle and wilfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.
(b) A signal under this section that is given by a police officer pursuing a vehicle may be by hand, voice, emergency light, or siren. The officer giving the signal must be in uniform and prominently display the officer’s badge of office. The officer’s vehicle must bear the insignia of a law enforcement agency, regardless of whether the vehicle displays an emergency light.
(c) Except as provided by Subsection (d), an offense under this section is a Class B misdemeanor.
(d) An offense under this section is a Class A misdemeanor if the person, during the commission of the offense, recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(e) A person is presumed to have recklessly engaged in conduct placing another in imminent danger of serious bodily injury under Subsection (d) if the person while intoxicated knowingly operated a motor vehicle during the commission of the offense. In this subsection, “intoxicated” has the meaning assigned by Section 49.01, Penal Code.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1280 (H.B. 1831), Sec. 1.21, eff. September 1, 2009.
Sec. 545.422. CROSSING SIDEWALK OR HIKE AND BIKE TRAIL. (a) A person may not drive a motor vehicle on a sidewalk, sidewalk area, or hike and bike trail except on a permanent or authorized temporary driveway.
(b) Subsection (a) does not prohibit the operation of a motor vehicle on a hike and bike trail in connection with maintenance of the trail.
(c) In this section, “hike and bike trail” means a trail designed for the exclusive use of pedestrians, bicyclists, or both.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.116(a), eff. Sept. 1, 1997.
Sec. 545.423. CROSSING PROPERTY. (a) An operator may not cross a sidewalk or drive through a driveway, parking lot, or business or residential entrance without stopping the vehicle.
(b) An operator may not cross or drive in or on a sidewalk, driveway, parking lot, or business or residential entrance at an intersection to turn right or left from one highway to another highway.
Sec. 545.424. OPERATION OF VEHICLE BY PERSON UNDER 18 YEARS OF AGE. (a) A person under 18 years of age may not operate a motor vehicle while using a wireless communications device, except in case of emergency.
(a-1) A person under 18 years of age may not operate a motor vehicle:
(1) after midnight and before 5 a.m. unless the operation of the vehicle is necessary for the operator to attend or participate in employment or a school-related activity or because of a medical emergency; or
(2) with more than one passenger in the vehicle under 21 years of age who is not a family member.
(b) A person under 17 years of age who holds a restricted motorcycle license or moped license may not operate a motorcycle or moped while using a wireless communications device, except in case of emergency.
(b-1) A person under 17 years of age who holds a restricted motorcycle license or moped license, during the 12-month period following the issuance of an original motorcycle license or moped license to the person, may not operate a motorcycle or moped after midnight and before 5 a.m. unless:
(1) the person is in sight of the person’s parent or guardian; or
(2) the operation of the vehicle is necessary for the operator to attend or participate in employment or a school-related activity or because of a medical emergency.
(c) This section does not apply to:
(1) a person operating a motor vehicle while accompanied in the manner required by Section 521.222(d)(2) for the holder of an instruction permit; or
(2) a person licensed by the Federal Communications Commission to operate a wireless communication device or a radio frequency device.
(d) For the purposes of this section, employment includes work on a family farm by a member of the family that owns or operates the farm.
(e) A peace officer may not stop a vehicle or detain the operator of a vehicle for the sole purpose of determining whether the operator of the vehicle has violated this section.
(f) In this section, “wireless communication device” means a handheld or hands-free device that uses commercial mobile service, as defined by 47 U.S.C. Section 332.
Added by Acts 2001, 77th Leg., ch. 1251, Sec. 3, eff. Jan. 1, 2002.
Amended by:
Acts 2005, 79th Leg., Ch. 357 (S.B. 1257), Sec. 4, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 12.11, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1253 (H.B. 339), Sec. 18, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1160 (H.B. 2466), Sec. 4, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 716 (H.B. 3483), Sec. 5, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1101 (H.B. 3676), Sec. 1, eff. September 1, 2013.
Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE IN A SCHOOL CROSSING ZONE OR WHILE OPERATING A SCHOOL BUS WITH A MINOR PASSENGER; OFFENSE. (a) In this section:
(1) “Hands-free device” means speakerphone capability or a telephone attachment or other piece of equipment, regardless of whether permanently installed in the motor vehicle, that allows use of the wireless communication device without use of either of the operator’s hands.
(2) “Wireless communication device” means a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332.
(b) Except as provided by Subsection (c), an operator may not use a wireless communication device while operating a motor vehicle within a school crossing zone, as defined by Section 541.302, Transportation Code, unless:
(1) the vehicle is stopped; or
(2) the wireless communication device is used with a hands-free device.
(b-1) Except as provided by Subsection (b-2), a municipality, county, or other political subdivision that enforces this section shall post a sign that complies with the standards described by this subsection at the entrance to each school crossing zone in the municipality, county, or other political subdivision. The department shall adopt standards that:
(1) allow for a sign required to be posted under this subsection to be attached to an existing sign at a minimal cost; and
(2) require that a sign required to be posted under this subsection inform an operator that:
(A) the use of a wireless communication device is prohibited in the school crossing zone; and
(B) the operator is subject to a fine if the operator uses a wireless communication device in the school crossing zone.
(b-2) A municipality, county, or other political subdivision that by ordinance or rule prohibits the use of a wireless communication device while operating a motor vehicle throughout the jurisdiction of the political subdivision is not required to post a sign as required by Subsection (b-1) if the political subdivision:
(1) posts signs that are located at each point at which a state highway, U.S. highway, or interstate highway enters the political subdivision and that state:
(A) that an operator is prohibited from using a wireless communication device while operating a motor vehicle in the political subdivision; and
(B) that the operator is subject to a fine if the operator uses a wireless communication device while operating a motor vehicle in the political subdivision; and
(2) subject to all applicable United States Department of Transportation Federal Highway Administration rules, posts a message that complies with Subdivision (1) on any dynamic message sign operated by the political subdivision located on a state highway, U.S. highway, or interstate highway in the political subdivision.
(b-3) A sign posted under Subsection (b-2)(1) must be readable to an operator traveling at the applicable speed limit.
(b-4) The political subdivision shall pay the costs associated with the posting of signs under Subsection (b-2).
(c) An operator may not use a wireless communication device while operating a passenger bus with a minor passenger on the bus unless the passenger bus is stopped.
(d) It is an affirmative defense to prosecution of an offense under this section that:
(1) the wireless communication device was used to make an emergency call to:
(A) an emergency response service, including a rescue, emergency medical, or hazardous material response service;
(B) a hospital;
(C) a fire department;
(D) a health clinic;
(E) a medical doctor’s office;
(F) an individual to administer first aid treatment; or
(G) a police department; or
(2) a sign required by Subsection (b-1) was not posted at the entrance to the school crossing zone at the time of an offense committed in the school crossing zone.
(d-1) The affirmative defense available in Subsection (d)(2) is not available for an offense under Subsection (b) committed in a school crossing zone located in a municipality, county, or other political subdivision that is in compliance with Subsection (b-2).
(e) This section does not apply to:
(1) an operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or
(2) an operator who is licensed by the Federal Communications Commission while operating a radio frequency device other than a wireless communication device.
(f) Except as provided by Subsection (b-2), this section preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state relating to the use of a wireless communication device by the operator of a motor vehicle.
Added by Acts 2005, 79th Leg., Ch. 357 (S.B. 1257), Sec. 5, eff. September 1, 2005.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1105 (H.B. 55), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 774 (H.B. 1899), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 240 (H.B. 347), Sec. 1, eff. September 1, 2013.
Sec. 545.4252. USE OF WIRELESS COMMUNICATION DEVICE ON SCHOOL PROPERTY; OFFENSE. (a) In this section:
(1) “Hands-free device” has the meaning assigned by Section 545.425.
(2) “Wireless communication device” has the meaning assigned by Section 545.425.
(b) Except as provided by Section 545.425(c), an operator may not use a wireless communication device while operating a motor vehicle on the property of a public elementary, middle, junior high, or high school for which a local authority has designated a school crossing zone, during the time a reduced speed limit is in effect for the school crossing zone, unless:
(1) the vehicle is stopped; or
(2) the wireless communication device is used with a hands-free device.
(c) It is an affirmative defense to prosecution of an offense under this section that the wireless communication device was used to make an emergency call to:
(1) an emergency response service, including a rescue, emergency medical, or hazardous material response service;
(2) a hospital;
(3) a fire department;
(4) a health clinic;
(5) a medical doctor’s office;
(6) an individual to administer first aid treatment; or
(7) a police department.
(d) This section does not apply to:
(1) an operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or
(2) an operator who is licensed by the Federal Communications Commission while operating a radio frequency device other than a wireless communication device.
(e) This section preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state relating to the use of a wireless communication device by the operator of a motor vehicle, except that a political subdivision may by ordinance or rule prohibit the use of a wireless communication device while operating a motor vehicle throughout the jurisdiction of the political subdivision.
Added by Acts 2013, 83rd Leg., R.S., Ch. 240 (H.B. 347), Sec. 2, eff. September 1, 2013.
Sec. 545.426. OPERATION OF SCHOOL BUS. (a) A person may not operate a school bus if:
(1) the door of the school bus is open; or
(2) the number of passengers on the bus is greater than the manufacturer’s design capacity for the bus.
(b) An operator of a school bus, while operating the bus, shall prohibit a passenger from:
(1) standing in the bus; or
(2) sitting:
(A) on the floor of the bus; or
(B) in any location on the bus that is not designed as a seat.
(c) The department may adopt rules necessary to administer and enforce this section.
Added by Acts 2007, 80th Leg., R.S., Ch. 923 (H.B. 3190), Sec. 5, eff. September 1, 2007.
Sec. 545.427. OPERATION OF VEHICLE WITH INSUFFICIENT UNDERCARRIAGE CLEARANCE. (a) An operator may not drive on or cross a railroad grade crossing unless the vehicle being operated has sufficient undercarriage clearance.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $200.
Added by Acts 2007, 80th Leg., R.S., Ch. 424 (S.B. 1372), Sec. 12, eff. January 1, 2008.
Renumbered from Transportation Code, Section 545.426 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 27.001(108), eff. September 1, 2009.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
EDITOR’S NOTE: The following is the text of Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act of 1991 (Pub. L. 102-166) (CRA) and the Lily Ledbetter Fair Pay Act of 2009 (Pub. L. 111-2) amend several sections of Title VII. In addition, section 102 of the CRA (which is printed elsewhere in this publication) amends the Revised Statutes by adding a new section following section 1977 (42 U.S.C. 1981), to provide for the recovery of compensatory and punitive damages in cases of intentional violations of Title VII, the Americans with Disabilities Act of 1990, and section 501 of the Rehabilitation Act of 1973. Cross references to Title VII as enacted appear in italics following each section heading. Editor’s notes also appear in italics.
An Act
To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Civil Rights Act of 1964”.
* * *
DEFINITIONS
SEC. 2000e. [Section 701]
For the purposes of this subchapter-
(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 [originally, bankruptcy ], or receivers.
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5 [United States Code]), or
(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26 [theInternal Revenue Code of 1986], except that during the first year after March 24, 1972 [the date of enactment of the Equal EmploymentOpportunity Act of 1972], persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.
(d) The term “labor organization” means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after March 24, 1972 [the date of enactment ofthe Equal Employment Opportunity Act of 1972], or (B) fifteen or more thereafter, and such labor organization-
(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.];
(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.
(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C.401 et seq.], and further includes any governmental industry, business, or activity.
(i) The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
(l) The term “complaining party” means the Commission, the Attorney General, or a person who may bring an action or proceeding under this subchapter.
(m) The term “demonstrates” means meets the burdens of production and persuasion.
(n) The term “respondent” means an employer, employment agency, labor organization, joint labor management committee controlling apprenticeship or other training or retraining program, including an on-the-job training program, or Federal entity subject to section 2000e-16 of this title.
APPLICABILITY TO FOREIGN AND RELIGIOUS EMPLOYMENT
SEC. 2000e-1. [Section 702]
(a) Inapplicability of subchapter to certain aliens and employees of religious entities
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
(b) Compliance with statute as violative of foreign law
It shall not be unlawful under section 2000e-2 or 2000e-3 of this title for an employer (or a corporation controlled by an employer), labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining (including on-the-job training programs) to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation), such organization, such agency, or such committee to violate the law of the foreign country in which such workplace is located.
(c) Control of corporation incorporated in foreign country
(1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by section 2000e-2 or 2000e-3 of this title engaged in by such corporation shall be presumed to be engaged in by such employer.
(2) Sections 2000e-2 and 2000e-3 of this title [sections 703 and 704] shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer.
(3) For purposes of this subsection, the determination of whether an employer controls a corporation shall be based on-
(A) the interrelation of operations;
(B) the common management;
(C) the centralized control of labor relations; and
(D) the common ownership or financial control, of the employer and the corporation.
UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-2. [Section 703]
(a) Employer practices
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
(b) Employment agency practices
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
(c) Labor organization practices
It shall be an unlawful employment practice for a labor organization-
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
(d) Training programs
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion
Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
(f) Members of Communist Party or Communist-action or Communist-front organizations
As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C.781 et seq.].
(g) National security
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if-
(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.
(h) Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 .
(i) Businesses or enterprises extending preferential treatment to Indians
Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.
(j) Preferential treatment not to be granted on account of existing number or percentage imbalance
Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
(k) Burden of proof in disparate impact cases
(1) (A) An unlawful employment practice based on disparate impact is established under this subchapter only if-
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.
(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.
(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.
(l) Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
(n) Resolution of challenges to employment practices implementing litigated or consent judgments or orders
(1) (A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B).
(B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws-
(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had-
(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and
(II) a reasonable opportunity to present objections to such judgment or order; or
(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.
(2) Nothing in this subsection shall be construed to-
(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened;
(B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government;
(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or
(D) authorize or permit the denial to any person of the due process of law required by the Constitution.
(3) Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of Title 28 [United StatesCode].
OTHER UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-3. [Section 704]
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
(b) Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception
It shall be an unlawful employment practice for an employer, labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor-management committee, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
SEC. 2000e-4. [Section 705]
(a) Creation; composition; political representation; appointment; term; vacancies; Chairman and Vice Chairman; duties of Chairman; appointment of personnel; compensation of personnel
There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members of the same political party. Members of the Commission shall be appointed by the President by and with the advice and consent of the Senate for a term of five years. Any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed, and all members of the Commission shall continue to serve until their successors are appointed and qualified, except that no such member of the Commission shall continue to serve (1) for more than sixty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission, and, except as provided in subsection (b) of this section, shall appoint, in accordance with the provisions of Title 5 [United States Code] governing appointments in the competitive service, such officers, agents, attorneys, administrative law judges [originally, hearing examiners], and employees as he deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of Title 5 [United States Code], relating to classification and General Schedule pay rates: Provided, That assignment, removal, and compensation of administrative law judges [originally, hearing examiners] shall be in accordance with sections 3105, 3344, 5372, and 7521 of Title 5 [United States Code].
(b) General Counsel; appointment; term; duties; representation by attorneys and Attorney General
(1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 2000e-5 and 2000e-6 of this title [sections 706 and 707]. The General Counsel shall have such other duties as the Commission may prescribe or as may be provided by law and shall concur with the Chairman of the Commission on the appointment and supervision of regional attorneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position and perform the functions specified in this subsection until a successor is appointed and qualified.
(2) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court, provided that the Attorney General shall conduct all litigation to which the Commission is a party in the Supreme Court pursuant to this subchapter.
(c) Exercise of powers during vacancy; quorum
A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission and three members thereof shall constitute a quorum.
(d) Seal; judicial notice
The Commission shall have an official seal which shall be judicially noticed.
(e) Reports to Congress and the President
The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken [originally, thenames, salaries, and duties of all individuals in its employ] and the moneys it has disbursed. It shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for further legislation as may appear desirable.
(f) Principal and other offices
The principal office of the Commission shall be in or near the District of Columbia, but it may meet or exercise any or all its powers at any other place. The Commission may establish such regional or State offices as it deems necessary to accomplish the purpose of this subchapter.
(g) Powers of Commission
The Commission shall have power-
(1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals;
(2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States;
(3) to furnish to persons subject to this subchapter such technical assistance as they may request to further their compliance with this subchapter or an order issued thereunder;
(4) upon the request of (i) any employer, whose employees or some of them, or (ii) any labor organization, whose members or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this subchapter, to assist in such effectuation by conciliation or such other remedial action as is provided by this subchapter;
(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this subchapter and to make the results of such studies available to the public;
(6) to intervene in a civil action brought under section 2000e-5 of this title by an aggrieved party against a respondent other than a government, governmental agency or political subdivision.
(h) Cooperation with other departments and agencies in performance of educational or promotional activities; outreach activities
(1) The Commission shall, in any of its educational or promotional activities, cooperate with other departments and agencies in the performance of such educational and promotional activities.
(2) In exercising its powers under this subchapter, the Commission shall carry out educational and outreach activities (including dissemination of information in languages other than English) targeted to-
(A) individuals who historically have been victims of employment discrimination and have not been equitably served by the Commission; and
(B) individuals on whose behalf the Commission has authority to enforce any other law prohibiting employment discrimination, concerning rights and obligations under this subchapter or such law, as the case may be.
(i) Personnel subject to political activity restrictions
All officers, agents, attorneys, and employees of the Commission shall be subject to the provisions of section 7324 of Title 5 [originally, section9 of the Act of August 2, 1939, as amended (the Hatch Act)], notwithstanding any exemption contained in such section.
(j) Technical Assistance Training Institute
(1) The Commission shall establish a Technical Assistance Training Institute, through which the Commission shall provide technical assistance and training regarding the laws and regulations enforced by the Commission.
(2) An employer or other entity covered under this subchapter shall not be excused from compliance with the requirements of this subchapter because of any failure to receive technical assistance under this subsection.
(3) There are authorized to be appropriated to carry out this subsection such sums as may be necessary for fiscal year 1992.
(k) EEOC Education, Technical Assistance, and Training Revolving Fund
(1) There is hereby established in the Treasury of the United States a revolving fund to be known as the “EEOC Education, Technical Assistance, and Training Revolving Fund” (hereinafter in this subsection referred to as the “Fund”) and to pay the cost (including administrative and personnel expenses) of providing education, technical assistance, and training relating to laws administered by the Commission. Monies in the Fund shall be available without fiscal year limitation to the Commission for such purposes.
(2)(A) The Commission shall charge fees in accordance with the provisions of this paragraph to offset the costs of education, technical assistance, and training provided with monies in the Fund. Such fees for any education, technical assistance, or training–
(i) shall be imposed on a uniform basis on persons and entities receiving such education, assistance, or training,
(ii) shall not exceed the cost of providing such education, assistance, and training, and
(iii) with respect to each person or entity receiving such education, assistance, or training, shall bear a reasonable relationship to the cost of providing such education, assistance, or training to such person or entity.
(B) Fees received under subparagraph (A) shall be deposited in the Fund by the Commission.
(C) The Commission shall include in each report made under subsection (e) of this section information with respect to the operation of the Fund, including information, presented in the aggregate, relating to–
(i) the number of persons and entities to which the Commission provided education, technical assistance, or training with monies in the Fund, in the fiscal year for which such report is prepared,
(ii) the cost to the Commission to provide such education, technical assistance, or training to such persons and entities, and
(iii) the amount of any fees received by the Commission from such persons and entities for such education, technical assistance, or training.
(3) The Secretary of the Treasury shall invest the portion of the Fund not required to satisfy current expenditures from the Fund, as determined by the Commission, in obligations of the United States or obligations guaranteed as to principal by the United States. Investment proceeds shall be deposited in the Fund.
(4) There is hereby transferred to the Fund $1,000,000 from the Salaries and Expenses appropriation of the Commission.
ENFORCEMENT PROVISIONS
SEC. 2000e-5. [Section 706]
(a) Power of Commission to prevent unlawful employment practices
The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title .
(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause
Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labormanagement committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge.
(c) State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission; commencement of proceedings
In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty- day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.
(d) State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission
In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.
(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.
(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney; payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and determine case; assignment of case for hearing; expedition of case; appointment of master
(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.
(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.
(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28 [United States Code], the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.
(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.
(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.
(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on judicial orders
(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
(2) (A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this Title .
(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title ; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
(h) Provisions of chapter 6 of Title 29 not applicable to civil actions for prevention of unlawful practices
The provisions of chapter 6 of title 29 [the Act entitled“An Act to amend the Judicial Code and to define and limit thejurisdiction of courts sitting in equity, and for other purposes,”approved March 23, 1932 (29 U.S.C. 105-115)] shall not apply with respect to civil actions brought under this section.
(i) Proceedings by Commission to compel compliance with judicial orders In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order.
(j) Appeals
Any civil action brought under this section and any proceedings brought under subsection (i) of this section shall be subject to appeal as provided in sections 1291 and 1292, Title 28 [United States Code].
(k) Attorney’s fee; liability of Commission and United States for costs
In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
CIVIL ACTIONS BY THE ATTORNEY GENERAL
SEC. 2000e-6. [Section 707]
(a) Complaint
Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.
(b) Jurisdiction; three-judge district court for cases of general public importance: hearing, determination, expedition of action, review by Supreme Court; single judge district court: hearing, determination, expedition of action
The district courts of the United States shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, and in any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accompanied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate and request for a three-judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.
In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.
It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.
(c) Transfer offunctions, etc., to Commission; effective date; prerequisite to transfer; execution of functions by Commission
Effective two years after March 24, 1972 [the dateofenactment of the Equal Employment Opportunity Act of 1972], the functions of theAttorney General under this section shall be transferred to the Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with such functions unless the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of Title 5 [United States Code], inconsistent with the provisions of this subsection. The Commission shall carry out such functions in accordance with subsections (d) and (e) of this section.
(d) Transfer of functions, etc., not to affect suits commenced pursuant to this section prior to date of transfer
Upon the transfer of functions provided for in subsection (c) of this section, in all suits commenced pursuant to this section prior to the date of such transfer, proceedings shall continue without abatement, all court orders and decrees shall remain in effect, and the Commission shall be substituted as a party for the United States of America, the Attorney General, or the Acting Attorney General, as appropriate.
(e) Investigation and action by Commission pursuant to filing of charge of discrimination; procedure
Subsequent to March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], the Commission shall haveauthority to investigate and act on a charge of a pattern or practice ofdiscrimination, whether filed by or on behalf of a person claiming to beaggrieved or by a member of the Commission. All such actions shall beconducted in accordance with the procedures set forth in section 2000e-5of this title .
EFFECT ON STATE LAWS
SEC. 2000e-7. [Section 708]
Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.
INVESTIGATIONS
SEC. 2000e-8. [Section 709]
(a) Examination and copying of evidence related to unlawful employment practices
In connection with any investigation of a charge filed under section 2000e-5 of this title , the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.
(b) Cooperation with State and local agencies administering State fair employment practices laws; participation in and contribution to research and other projects; utilization of services; payment in advance or reimbursement; agreements and rescission of agreements
The Commission may cooperate with State and local agencies charged with the administration of State fair employment practices laws and, with the consent of such agencies, may, for the purpose of carrying out its functions and duties under this subchapter and within the limitation of funds appropriated specifically for such purpose, engage in and contribute to the cost of research and other projects of mutual interest undertaken by such agencies, and utilize the services of such agencies and their employees, and, notwithstanding any other provision of law, pay by advance or reimbursement such agencies and their employees for services rendered to assist the Commission in carrying out this subchapter. In furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Commission shall refrain from processing a charge in any cases or class of cases specified in such agreements or under which the Commission shall relieve any person or class of persons in such State or locality from requirements imposed under this section. The Commission shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforcement of this subchapter.
(c) Execution, retention, and preservation of records; reports to Commission; training program records; appropriate relief from regulation or order for undue hardship; procedure for exemption; judicial action to compel compliance
Every employer, employment agency, and labor organization subject to this subchapter shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this subchapter or the regulations or orders thereunder. The Commission shall, by regulation, require each employer, labor organization, and joint labor-management committee subject to this subchapter which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purposes of this subchapter, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which applications were received, and to furnish to the Commission upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor-management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may apply to the Commission for an exemption from the application of such regulation or order, and, if such application for an exemption is denied, bring a civil action in the United States district court for the district where such records are kept. If the Commission or the court, as the case may be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Commission or the court, as the case may be, may grant appropriate relief. If any person required to comply with the provisions of this subsection fails or refuses to do so, the United States district court for the district in which such person is found, resides, or transacts business, shall, upon application of the Commission, or the Attorney General in a case involving a government, governmental agency or political subdivision, have jurisdiction to issue to such person an order requiring him to comply.
(d) Consultation and coordination between Commission and interested State and Federal agencies in prescribing recordkeeping and reporting requirements; availability of information furnished pursuant to recordkeeping and reporting requirements; conditions on availability
In prescribing requirements pursuant to subsection (c) of this section, the Commission shall consult with other interested State and Federal agencies and shall endeavor to coordinate its requirements with those adopted by such agencies. The Commission shall furnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained pursuant to subsection (c) of this section from any employer, employment agency, labor organization, or joint labor-management committee subject to the jurisdiction of such agency. Such information shall be furnished on condition that it not be made public by the recipient agency prior to the institution of a proceeding under State or local law involving such information. If this condition is violated by a recipient agency, the Commission may decline to honor subsequent requests pursuant to this subsection.
(e) Prohibited disclosures; penalties
It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.
CONDUCT OF HEARINGS AND INVESTIGATIONS PURSUANT TO SECTION 161 OF Title 29
SEC. 2000e-9. [Section 710]
For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 shall apply.
POSTING OF NOTICES; PENALTIES
SEC. 2000e-10. [Section 711]
(a) Every employer, employment agency, and labor organization, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be prepared or approved by the Commission setting forth excerpts from or, summaries of, the pertinent provisions of this subchapter and information pertinent to the filing of a complaint.
(b) A willful violation of this section shall be punishable by a fine of not more than $100 for each separate offense.
VETERANS’ SPECIAL RIGHTS OR PREFERENCE
SEC. 2000e-11. [Section 712]
Nothing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans.
REGULATIONS; CONFORMITY OF REGULATIONS WITH ADMINISTRATIVE PROCEDURE PROVISIONS; RELIANCE ON INTERPRETATIONS AND INSTRUCTIONS OF COMMISSION
SEC. 2000e-12. [Section 713]
(a) The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter. Regulations issued under this section shall be in conformity with the standards and limitations of subchapter II of chapter 5 of Title 5 [originally, the Administrative Procedure Act].
(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission, or (2) the failure of such person to publish and file any information required by any provision of this subchapter if he pleads and proves that he failed to publish and file such information in good faith, in conformity with the instructions of the Commission issued under this subchapter regarding the filing of such information. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect, or (B) after publishing or filing the description and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the requirements of this subchapter.
APPLICATION TO PERSONNEL OF COMMISSION OF SECTIONS 111 AND 1114 OF TITLE 18; PUNISHMENT FOR VIOLATION OF SECTION 1114 OF TITLE 18
SEC. 2000e-13. [Section 714]
The provisions of sections 111 and 1114, Title 18 [United StatesCode], shall apply to officers, agents, and employees of the Commission in the performance of their official duties. Notwithstanding the provisions of sections 111 and 1114 of Title 18 [United StatesCode], whoever in violation of the provisions of section 1114 of such title kills a person while engaged in or on account of the performance of his official functions under this Act shall be punished by imprisonment for any term of years or for life.
TRANSFER OF AUTHORITY
[Administration of the duties of theEqual Employment OpportunityCoordinating Council was transferred to the Equal Employment Opportunity Commission effective July 1, 1978, under the President’s Reorganization Plan of 1978.]
EQUAL EMPLOYMENT OPPORTUNITY COORDINATING COUNCIL; ESTABLISHMENT; COMPOSITION; DUTIES; REPORT TO PRESIDENT AND CONGRESS
SEC. 2000e-14. [Section 715]
[Original introductory text: There shall be established an Equal Employment Opportunity Coordinating Council (hereinafter referred to in this section as the Council) composed of the Secretary of Labor, the Chairman of the Equal Employment Opportunity Commission, the Attorney General, the Chairman of the United States Civil Service Commission, and the Chairman of the United States Civil Rights Commission, or their respective delegates.]
The Equal Employment Opportunity Commission [originally, Council] shall have the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations, functions and jurisdictions of the various departments, agencies and branches of the Federal Government responsible for the implementation and enforcement of equal employment opportunity legislation, orders, and policies. On or before October 1 [originally, July 1] of each year, the Equal Employment Opportunity Commission [originally, Council] shall transmit to the President and to the Congress a report of its activities, together with such recommendations for legislative or administrative changes as it concludes are desirable to further promote the purposes of this section.
PRESIDENTIAL CONFERENCES; ACQUAINTANCE OF LEADERSHIP WITH PROVISIONS FOR EMPLOYMENT RIGHTS AND OBLIGATIONS; PLANS FOR FAIR ADMINISTRATION; MEMBERSHIP
SEC. 2000e-15. [Section 716]
[Original text: (a) This title shall become effective one year after the date of its enactment.
(b) Notwithstanding subsection (a), sections of this title other than sections 703, 704, 706, and 707 shall become effective immediately.
(c)] The President shall, as soon as feasible after July 2, 1964 [the date of enactment of this title], convene one or more conferences for the purpose of enabling the leaders of groups whose members will be affected by this subchapter to become familiar with the rights afforded and obligations imposed by its provisions, and for the purpose of making plans which will result in the fair and effective administration of this subchapter when all of its provisions become effective. The President shall invite the participation in such conference or conferences of (1) the members of the President’s Committee on Equal Employment Opportunity, (2) the members of the Commission on Civil Rights, (3) representatives of State and local agencies engaged in furthering equal employment opportunity, (4) representatives of private agencies engaged in furthering equal employment opportunity, and (5) representatives of employers, labor organizations, and employment agencies who will be subject to this subchapter.
TRANSFER OF AUTHORITY
[Enforcement of Section 717 was transferred to the Equal EmploymentOpportunityCommission from the Civil Service Commission (Office ofPersonnel Management) effective January 1, 1979 under the President’s Reorganization Plan No. 1 of 1978.]
EMPLOYMENT BY FEDERAL GOVERNMENT
SEC. 2000e-16. [Section 717]
(a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage
All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5[United States Code], in executive agencies [originally, other thanthe General Accounting Office] as defined in section 105 of Title 5 [United States Code] (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.
(b) Equal Employment Opportunity Commission; enforcement powers; issuance of rules, regulations, etc.; annual review and approval of national and regional equal employment opportunity plans; review and evaluation of equal employment opportunity programs and publication of progress reports; consultations with interested parties; compliance with rules, regulations, etc.; contents of national and regional equal employment opportunity plans; authority of Librarian of Congress
Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission [originally, Civil Service Commission] shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission [originally, Civil Service Commission] shall-
(1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment;
(2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and
(3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity.
The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. The plan submitted by each department, agency, and unit shall include, but not be limited to-
(1) provision for the establishment of training and education programs designed to provide a maximum opportunity for employees to advance so as to perform at their highest potential; and
(2) a description of the qualifications in terms of training and experience relating to equal employment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal employment opportunity program and of the allocation of personnel and resources proposed by such department, agency, or unit to carry out its equal employment opportunity program.
With respect to employment in the Library of Congress, authorities granted in this subsection to the Equal Employment Opportunity Commission [originally, Civil Service Commission] shall be exercised by the Librarian of Congress.
(c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant
Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission [originally, Civil ServiceCommission] upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission [originally, Civil Service Commission] on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title , in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.
(d) Section 2000e-5(f) through (k) of this title applicable to civil actions
The provisions of section 2000e-5(f) through (k) of this title [section 706(f) through (k)], as applicable, shall govern civil actions brought hereunder, and the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties.
(e) Government agency or official not relieved of responsibility to assure nondiscrimination in employment or equal employment opportunity
Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment opportunity in the Federal Government.
(f) Section 2000e-5(e)(3) [Section 706(e)(3)] shall apply to complaints of discrimination in compensation under this section.
PROCEDURE FOR DENIAL, WITHHOLDING, TERMINATION, OR SUSPENSION OF GOVERNMENT CONTRACT SUBSEQUENT TO ACCEPTANCE BY GOVERNMENT OF AFFIRMATIVE ACTION PLAN OF EMPLOYER; TIME OF ACCEPTANCE OF PLAN
SEC. 2000e-17. [Section 718]
No Government contract, or portion thereof, with any employer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government for the same facility within the past twelve months without first according such employer full hearing and adjudication under the provisions of section 554 of Title 5 [UnitedStates Code], and the following pertinent sections: Provided, That if such employer has deviated substantially from such previously agreed to affirmative action plan, this section shall not apply: Provided further, That for the purposes of this section an affirmative action plan shall be deemed to have been accepted by the Government at the time the appropriate compliance agency has accepted such plan unless within forty-five days thereafter the Office of Federal Contract Compliance has disapproved such plan.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
“God will give me justice if I am to be punished for the opinions of other people, who do not know my heart I can’t help it.”
-Stand Waitie, Cherokee Chief
“There is no more fundamental axiom of American freedom than the familiar statement: In a free country we punish men for the crimes they commit but never for the opinions they have.”
-Harry S. Truman
“The patriot volunteer, fighting for his country and his rights, makes the most reliable soldier on earth.”
-Thomas Jackson
“When these disinherited children of God sat down at lunch counters they were in reality standing up for the best in the American dream and the most sacred values in our Judaeo-Christian heritage, and thusly, carrying our whole nation back to those great wells of democracy which were dug deep by the founding fathers in the formulation of the Constitution and the Declaration of Independence.” “Letter from a Birmingham Jail,” April 1963
-Martin Luther King
“Uncle Sam comes around getting both hands in your pocket. People out there are just barely getting by. Render unto Caesar no more than you have to… Keep the Lord in your heart, and keep your powder dry…”
-Chris Knight
“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! – I know not what course others may take; but as for me, give me liberty or give me death!”
-Patrick Henry
“Nothing in the world is worth having or worth doing unless it means effort, pain, difficulty… I have never in my life envied a human being who led an easy life. I have envied a great many people who led difficult lives and led them well.” -Theodore Roosevelt
“The planter, the farmer, the mechanic, and the laborer… form the great body of the people of the United States, they are the bone and sinew of the country men who love liberty and desire nothing but equal rights and equal laws.”
-Andrew Jackson
“Courage is the first of human qualities because it is the quality that guarantees all the others.”
-Winston Churchill
“The American character has been not only religious, idealistic, and patriotic, but because of these it has been essentially individual.” Independence Day Oration, July 4th, 1946
-John F. Kennedy
“Hey, I’ve got Rights. I’ve got some Rights too.”
-Randall H. Williams, Jr.
When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.
When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism, in which every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.
When, long after the spirit of the constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to force a new government upon them at the point of the bayonet.
When, in consequence of such acts of malfeasance and abdication on the part of the government, anarchy prevails, and civil society is dissolved into its original elements. In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.
…
These, and other grievances, were patiently borne by the people of Texas, untill they reached that point at which forbearance ceases to be a virtue. We then took up arms in defence of the national constitution. We appealed to our Mexican brethren for assistance. Our appeal has been made in vain. Though months have elapsed, no sympathetic response has yet been heard from the Interior. We are, therefore, forced to the melancholy conclusion, that the Mexican people have acquiesced in the destruction of their liberty, and the substitution therfore of a military government; that they are unfit to be free, and incapable of self government.
The necessity of self-preservation, therefore, now decrees our eternal political separation.
-From Texas Declaration of Independence
“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”
-Harry S. Truman
“My purpose is to make my narrative as truthful as possible.”
-George Custer
“…I’ve never needed government to hold my hand. And I’ve said it before but I’ll say it again, because my family has always fought and died to save this land. “
-Aaron Lewis
“If Lost, a cause of action is false. If true, it is not lost.”
-Henry Wise
“If it is in the public interest to maintain an industry, it is clearly not in the public interest by the impact of regulatory authority to destroy its otherwise viable way of life.” Special Message to the Congress on Regulatory Agencies, April 13, 1961
-John F. Kennedy
“Let us never forget this fundamental truth: The State has no source of money other than the money people themselves earn.”
-Margaret Thatcher
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Formation of Business Entities and Nonprofit Corporations Under the Texas Business Organizations Code:
* Online filing available through SOSDirect
Form Number
Description
*201
Certificate of Formation for a For-Profit Corporation – Form to be used to incorporate a for-profit corporation. Rev. 05-11 (# of pages – 6) (Word, PDF)
*202
Certificate of Formation for a Nonprofit Corporation – Form to be used to incorporate a nonprofit corporation. Rev. 05-11 (# of pages – 8) (Word, PDF)
*203
Certificate of Formation for a Professional Corporation – Form to be used to form a professional corporation. Rev. 05-11 (# of pages – 7) (Word, PDF)
*204
Certificate of Formation for a Professional Association – Form to be used to form a professional association. Rev. 06-11 (# of pages – 7) (Word, PDF)
*205
Certificate of Formation for a Limited Liability Company – Form to be used to form a limited liability company. Rev. 05-11 (# of pages – 6) (Word, PDF)
*206
Certificate of Formation for a Professional Limited Liability Company – Form to be used to form a professional limited liability company. Rev. 06-11 (# of pages – 7) (Word, PDF)
*207
Certificate of Formation for a Limited Partnership – Form to be used to form a limited partnership. Rev. 05-11 (# of pages – 6) (Word, PDF)
208
Uniform Unincorporated Nonprofit Association Summary – Summary of the Texas Uniform Unincorporated Nonprofit Association Act. Rev. 12-10 (# of pages – 2) (Word, PDF)
Registering Out-of-State Entities to Transact Business In Texas Under the Business Organizations Code:
* Online filing available through SOSDirect
Form Number
Description
*301
For-Profit Corporation Application for Registration – Application by a foreign for-profit corporation to transact business in Texas. Rev. 05-11 (# of pages – 7) (Word, PDF)
*302
Nonprofit Corporation Application for Registration – Application by a foreign nonprofit corporation to transact business in Texas. Rev. 05-11 (# of pages – 8) (Word, PDF)
*303
Professional Corporation Application for Registration – Application by a foreign professional corporation to transact business in Texas. Rev. 05-11 (# of pages – 8) (Word, PDF)
*304
Limited Liability Company Application for Registration – Application by a foreign limited liability company to transact business in Texas. Rev. 05-11 (# of pages – 8) (Word , PDF)
*305
Professional Limited Liability Company Application for Registration – Application by a foreign professional limited liability company to transact business in Texas. Rev. 05-11 (# of pages – 8) (Word, PDF)
*306
Limited Partnership Application for Registration – Application by a foreign limited partnership to transact business in Texas. Rev. 05-11 (# of pages – 8) (Word, PDF)
*307
Limited Liability Partnership Application for Registration – Application by a foreign limited liability partnership or limited liability limited partnership to transact business in Texas. Rev. 05-11 (# of pages – 6) (Word, PDF)
308
Renewal of Limited Liability Partnership Application for Registration – Form for renewing the application of a limited liability partnership or a limited liability limited partnership to transact business in Texas. Rev. 05-11 (# of pages – 6) (Word, PDF)
*309
Out-of-State Financial Institution Application for Registration – Application by an out-of-state financial institution to transact business in Texas. Rev. 05-11 (# of pages – 6) (Word, PDF)
311
Professional Association Application for Registration – Application by a foreign professional association to transact business in Texas. Rev. 05-11 (# of pages – 9) (Word, PDF)
312
BusinessTrust/Real Estate Investment Trust or Other Foreign Entity Application for Registration – Application by business trust, real estate investment trust or other foreign entity with limited liability to transact business in Texas. Rev. 05-11 (# of pages – 8) (Word, PDF)
313
Series Limited Liability Company Application for Registration – Application by a foreign series limited liability company to transact business in Texas. Rev. 05-11 (# of pages – 9) (Word, PDF)
Amending or Correcting a Filing Including Changing the Registered Agent or Registered Office or Resigning as Registered Agent:
* Online filing available through SOSDirect
Form Number
Description
*401
Change of Registered Agent and/or Registered Office – Form for changing the registered agent and/or registered office of any type entity. Rev. 05-11 (# of pages – 5) (Word, PDF)
401-A
Consent of Registered Agent to Appointment – Form that may be used to evidence the consent of a person designated or appointed as registered agent. Rev. 12-09 (# of pages – 3) (Word, PDF)
402
Statement of Resignation of Registered Agent – Form for use by the registered agent of an entity to resign the position. Rev. 01-10 (# of pages – 2) (Word, PDF)
403
Articles/Certificate of Correction – Form for correcting a previous filing by any type entity. Rev. 05-11 (# of pages – 6) (Word, PDF)
406
Amendment to Registration – Form for amending the registration of a foreign filing entity. Rev. 05-11 (# of pages – 5) (Word, PDF)
407
Amendment to Registration – Foreign Limited Liability Partnership – Form for amending the registration of an out-of-state limited liability partnership. Rev. 05-11 (# of pages – 6) (Word, PDF)
408
Statement of Change of Address by a Registered Agent – Form for a registered agent to change the registered office address. Rev. 05-11 (# of pages – 7) (Word, PDF)
411
Amended Registration – Out-of-state Financial Institution – Form for amending the registration of an out-of-state financial institution. Rev. 05-11 (# of pages – 5) (Word, PDF)
412
Amended Registration – Foreign Limited Partnership – Form for amending the registration of a foreign limited partnership. Rev. 05-11 (# of pages – 7) (Word, PDF)
414
Restated Certificate of Formation with New Amendments – Form for filing a restated certificate of formation that is to take the place of the previous certificate of formation and that makes additional amendments to text. Rev. 09-13 (# of pages – 7) (Word, PDF)
415
Restated Certificate of Formation without Further Amendments – Form for filing a restated certificate of formation that is to take the place of the previous certificate of formation as previously amended. Rev. 05-11 (# of pages – 6) (Word, PDF)
422
Amendment to Registration To Disclose a Change Resulting from a Conversion or Merger – Form used to amend the registration of a foreign filing entity to effect a transfer of the registration to a successor entity after a merger or conversion. Rev. 05-11 (# of pages – 4) (Word, PDF)
*424
Certificate of Amendment – Form for amending the certificate of formation of a domestic entity. (Online filings limited to name changes.) Rev. 05-11 (# of pages – 8) (Word, PDF)
425
Restriction on the Transfer of Shares – Form for filing a statement regarding a bylaw or agreement that restricts the transfer of shares or other securities by a for-profit corporation. Rev. 05-11 (# of pages – 4) (Word, PDF)
426
Resolution Relating to a Series of Shares – Form for filing a statement relating to an action with respect to a series of shares by a for-profit corporation. Rev. 05-11 (# of pages – 4) (Word, PDF)
427
Certificate of Abandonment – Form for abandoning a filed instrument that has not taken effect. Rev. 05-11 (# of pages – 3) (Word, PDF)
428
Rejection of Appointment – Form that may be used by a person named as an entity’s registered agent to terminate the appointment as registered agent when the designation or appointment was made on or after January 1, 2010 and without that person’s consent. Rev. 01-10 (# of pages – 2) (Word, PDF)
Reserving or Registering a Name Under the Texas Business Organizations Code; Filing or Abandoning an Assumed Name:
* Online filing available through SOSDirect
Form Number
Description
*501
Name Reservation – Form for reserving a name for later use. Rev. 05-11 (# of pages – 4) (Word , PDF)
*502
Name Registration – Form for registering the name of an out-of-state entity that is not qualified to transact business in the state. Rev. 05-11 (# of pages – 4) (Word, PDF)
*503
Assumed Name – Form for filing an assumed name of an entity. Rev. 09-13 (# of pages – 5) (Word, PDF)
504
Statement of Abandonment of an Assumed Name – Form for abandoning an assumed name certificate before the expiration of its term of registration. Rev. 05-11 (# of pages – 4) (Word, PDF)
505
Renewal of Registration of an Entity Name – Form for renewal of registration of entity names. Rev. 05-11 (# of pages – 4) (Word, PDF)
506
Notice of Transfer of Reservation of an Entity Name – Form for transferring an effective name reservation from the current applicant to another person. Rev. 05-11 (# of pages – 3) (Word, PDF)
507
Notice of Withdrawal of Reservation of an Entity Name – Form for withdrawing a reserved name before the expiration of the reservation period. Rev. 01-06 (# of pages – 2) (Word , PDF)
508
Notice of Withdrawal of Registration of an Entity Name – Form for withdrawing a current name registration before the expiration of the term of registration. Rev. 05-11 (# of pages – 2) (Word, PDF)
509
Consent to Use of Similar Name – Form for the holder of an existing name to consent to the use of a similar name. Rev. 06-15 (# of pages – 2) (Word, PDF)
Termination of a Domestic Entity; Withdrawal or Termination of an Out-of-State Entity; Merger; Conversion:
* Online filing available through SOSDirect
Form Number
Description
*608
Certificate of Withdrawal – Form for surrendering the registration of a foreign filing entity, other than a foreign limited liability partnership, and withdrawing from the state. Rev. 05-11 (# of pages – 5) (Word, PDF)
*609
Withdrawal of Foreign Limited Liability Partnership Registration – Form for withdrawing the registration of an out-of-state limited liability partnership. Rev. 05-11 (# of pages – 4) (Word, PDF)
612
Termination of Registration – Form for terminating the registration of a foreign entity that has ceased to exist in its jurisdiction of formation. Rev. 05-11 (# of pages – 4) (Word, PDF)
621
Certificate of Merger – Domestic Entity Divisional Merger – Form used to effect a merger that divides a Texas entity into two or more new Texas entities or other organizations. Rev. 05-11 (# of pages – 7) (Word, PDF)
622
Certificate of Merger – Form used to effect a merger that combines one or more Texas entities with one or more organizations. Rev. 05-11 (# of pages – 8) (Word, PDF)
623
Certificate of Merger – Parent-Subsidiary – Form used to effect a merger of a parent organization with a subsidiary organization when the parent is to survive the merger. Rev. 05-11 (# of pages – 7) (Word, PDF)
624
Certificate of Merger for Nonprofit Corporation – Form used to effect a merger when each party to the merger is a nonprofit corporation. Rev. 05-11 (# of pages – 8) (Word, PDF)
631
Certificate of Conversion of a Corporation Converting to a General Partnership – Form for converting a Texas for-profit or professional corporation to a domestic or foreign general partnership. Rev. 05-11 (# of pages – 5) (Word, PDF)
632
Certificate of Conversion of a Corporation Converting to a Limited Liability Company – Form for converting a corporation to a limited liability company. Rev. 05-11 (# of pages – 5) (Word, PDF)
633
Certificate of Conversion of a Corporation Converting to a Limited Partnership – Form for converting a corporation to a limited partnership. Rev. 05-11 (# of pages – 5) (Word, PDF)
634
Certificate of Conversion of a Corporation Converting to a Real Estate Investment Trust – Form for converting a Texas for-profit or professional corporation to a domestic or foreign real estate investment trust. Rev. 05-11 (# of pages – 5) (Word, PDF)
635
Certificate of Conversion of a Limited Liability Company Converting to a General Partnership – Form for converting a Texas limited liability company to a domestic or foreign general partnership. Rev. 05-11 (# of pages – 5) (Word, PDF)
636
Certificate of Conversion of a Limited Liability Company Converting to a Corporation – Form for converting a limited liability company to a corporation. Rev. 05-11 (# of pages – 5) (Word, PDF)
637
Certificate of Conversion of a Limited Liability Company Converting to a Limited Partnership – Form for converting a limited liability company to a limited partnership. Rev. 05-11 (# of pages – 5) (Word, PDF)
638
Certificate of Conversion of a Limited Liability Company Converting to a Real Estate Investment Trust – Form for converting a Texas limited liability company to a domestic or foreign real estate investment trust. Rev. 05-11 (# of pages – 5) (Word, PDF)
641
Certificate of Conversion of a Limited Partnership Converting to a General Partnership – Form for converting a Texas limited partnership to a domestic or foreign general partnership. Rev. 05-11 (# of pages – 5) (Word, PDF)
642
Certificate of Conversion of a Limited Partnership Converting to a Limited Liability Company – Form for converting a limited partnership to a limited liability company. Rev. 05-11 (# of pages – 5) (Word, PDF)
643
Certificate of Conversion of a Limited Partnership Converting to a Corporation – Form for converting a limited partnership to a corporation. Rev. 05-11 (# of pages – 5) (Word, PDF)
644
Certificate of Conversion of a Limited Partnership Converting to a Real Estate Investment Trust – Form for converting a Texas limited partnership to a domestic or foreign real estate investment trust. Rev. 05-11 (# of pages – 5) (Word, PDF)
645
Certificate of Conversion of a Professional Association Converting to a Professional Limited Liability Company – Form for converting a foreign or domestic professional association to a foreign or domestic professional limited liability company. Rev. 05-11 (# of pages – 6) (Word, PDF)
646
Certificate of Conversion of a Texas General Partnership Converting to a Texas Filing Entity – Form for converting a Texas general partnership to a Texas filing entity. Rev. 05-11 (# of pages – 5) (Word, PDF)
647
Information on Converting a Foreign Entity to a Texas Filing Entity – Summary of requirements under the Texas Business Organizations Code with checklist. Rev. 05-11 (# of pages – 2) (Word, PDF)
*651
Certificate of Termination of a Domestic Entity – Form for terminating the existence of a domestic filing entity, other than a nonprofit corporation or cooperative association. Rev. 05-11 (# of pages – 5) (Word, PDF)
*652
Certificate of Termination – Nonprofit Corporation or Cooperative Association – Form for terminating the existence of a nonprofit corporation or cooperative association. Rev. 05-11 (# of pages – 6) (Word, PDF)
Domestic Limited Liability Partnerships; Appointment of an Agent by Financial Institutions and Unincorporated Associations:
* Online filing available through SOSDirect
Form Number
Description
*701
Limited Liability Partnership Application – Form for registration of a domestic partnership as a limited liability partnership or limited liability limited partnership. Rev. 09-11 (# of pages – 3) (Word, PDF)
703
Limited Liability Partnership Renewal – Form for renewing the registration of a domestic limited liability partnership. Rev. 09-11 (# of pages – 3) (Word, PDF)
704
Notice of Withdrawal of Registration of a Texas Limited Liability Partnership – Form for withdrawing the registration of a Texas limited liability partnership before the expiration of its term of registration. Rev. 05-11 (# of pages – 4) (Word, PDF)
706
Appointment of Statutory Agent – Form for a Texas financial institution, an unincorporated nonprofit association, or a defense base development authority to appoint an agent for service of process. Rev. 05-11 (# of pages – 4) (Word, PDF)
707
Amendment of Appointment of Statutory Agent – Form for amending the statement appointing a statutory agent. Rev. 05-11 (# of pages – 4) (Word, PDF)
708
Resignation of Appointed Statutory Agent – Form which may be used to resign as the agent for service of process of a Texas financial institution, an unincorporated nonprofit association, or a defense base development authority. Rev. 12-09 (# of pages – 2) (Word, PDF)
709
Cancellation of Appointment of Statutory Agent – Form for canceling the appointment of a statutory agent of a Texas financial institution, an unincorporated nonprofit association, or a defense base development authority. Rev. 05-11 (# of pages – 2) (Word, PDF)
722
Amendment to Registration of a Limited Liability Partnership – Form for amending a domestic limited liability partnership’s registration. Rev. 05-11 (# of pages – 4) (Word, PDF)
Reinstatement; Fee Schedule; Other Filing Aids:
* Online filing available through SOSDirect
Form Number
Description
*801
Application for Reinstatement and Request to Set Aside Tax Forfeiture – Form to be used by an entity when applying to reinstate its existence or registration after its forfeiture under the Tax Code. (Limited to tax forfeiture reinstatements.) Rev. 05-11 (# of pages – 3) (Word, PDF)
805
Statement of Event or Fact – Form for filing the statement required to effect a filing instrument when the effectiveness of the instrument was delayed on the occurrence of a future event or fact. Rev. 06-11 (# of pages – 4) (Word, PDF)
806
Fee Schedule – Listing of all Corporations Section fees. Rev. 09-12 (# of pages – 5) (Word , PDF)
807
Payment Form – Form for use in transmitting credit card, LegalEase, or client account payment information when filing documents by facsimile. Rev. 08-14 (# of pages – 1) (Word, PDF)
811
Reinstatement – Form to be used by an entity in applying for reinstatement of its certificate of formation or its registration after the entity has been terminated or revoked for non-tax reasons. Rev. 05-11 (# of pages – 5) (Word , PDF)
812
Statement of Operation as a Close Corporation – Form for filing statement that corporation is a close corporation that is operating pursuant to a shareholders’ agreement. Rev. 05-11 (# of pages – 2) (Word, PDF)
813
Statement Terminating Close Corporation Status – Form for filing statement that terminates the close corporation status of a Texas for-profit or professional corporation. Rev. 05-11 (# of pages – 3) (Word, PDF)
Form to be Used by a Foreign Corporate Fiduciary to Appoint the Secretary of State as the Agent for Service of Process:
Form Number
Description
908
Foreign Corporate Fiduciary Probate Code Filing – Form to be used by a foreign corporate fiduciary to comply with Section 105A of the Texas Probate Code to appoint the secretary of state as its agent for service of process and file a certificate of designation. Rev. 01-06 (# of pages – 4) (Word, PDF)
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Income Benefit Issues in Texas Workers’ Compensation Cases–Texas Workers’ Compensation Manual
Overview
There are four different types of income benefits; they are TIBs, IIBs, SIBs, and LIBs. Income benefits begin to accrue on the eighth day of disability. TIBs are paid for all periods of disability until disability ends or MMI is reached. Section 408.101; Rule 129.2. A carrier stops TIBs payments when an authorized doctor certifies that the IW has reached MMI, and the IC begins payment of IIBs. Once an IW is placed at MMI and assigned an IR, the IW is entitled to IIBs at a rate of three weeks of benefits for each percentage point of impairment. Section 408.121. Only IWs with an IR of 15% or greater are eligible to qualify for SIBs at the end of the IIBs period. Finally, if the IW’s compensable injury meets one of the requirements listed in Section 408.161, the IW is entitled to LIBs.
Income benefits are calculated based upon the IW‘s AWW. The Division computes the State maximum and minimum income benefit amounts on an annual basis. See Sections 408.061 and 408.062. In general, income benefits have a maximum and minimum weekly amount. See Section 130.102(f) dealing with the calculation of SIBs. Note that it doesn’t mention a minimum SIBs amount. Also see Section 128.7(d)(3) which deals with school district employees. [Cross-reference: Amount of average weekly wage (W01)].
Existence/Duration/Disability Raised by Allegation of Bona Fide Job Offer (I02)
While closely related, the issues of disability and bona fide offer of employment (BFOE) raise two separate and distinct legal questions. APD 012077. Disability deals with an IW‘s inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IW’s pre-injury wage. Section 401.011(16). [Cross-reference: Existence/duration disability raised by other evidence (I03)]. BFOE deals with the IC‘s right to reduce TIBs based upon a properly tendered job offer to the IW. Section 129.6(g).
Whether there has been a BFOE is a separate issue from whether the IW has disability. An IC that is claiming it is entitled to reduce TIBs based upon a BFOE must specifically, and properly, raise the issue if it wants the HO to determine if there has been a BFOE. BFOE is not subsumed in the issue of disability. Even if it is found that a valid BFOE exists, the IW may still have disability but the IC will be allowed to deem the wages offered to be post injury earnings (PIE) and will reduce the IW’s TIBs accordingly. Section 408.103(e); Section 129.6(g). When disability and BFOE are both specifically raised as disputed issues, if it is determined that there has not been a valid BFOE tendered, the job offer may still be considered by the fact finder in determining whether the IW has disability. This is so because disability ends if there is employment at the IW’s preinjury wage, meeting the conditions of any medical release, that is reasonably available to the IW and that the IW has not availed himself or herself of such employment opportunity. APD 020352.
BFOE/Contents. Section 129.6(c) contains the requirements for a valid BFOE. To be valid, all information contained in Section 129.6(c) must be included in the offer. APD 010110-s. To be valid, a BFOE must:
(a) Be in writing;
(b) Include a copy of the Work Status Report upon which the offer is being based;
(c) State the location at which the IW will be working;
(d) State the schedule the IW will be working;
(e) State the wages the IW will be paid;
(f) Give a description of the physical and time requirements that the offered position will entail; and
(g) Provide a statement that the employer will only assign tasks consistent with the IW’s physical abilities, knowledge, and skills and will provide training if necessary.
BFOE/Doctor/Work Status Report. Section 129.6(f) sets out the priority of doctors’ opinions on the IW’s ability to return to work and what the appropriate restrictions are in the event there are Work Status Reports ( DWC-73) from more than one doctor. The following is the order of preference that the IC shall use in evaluating an offer of employment:
(a) The opinion of a doctor selected by the Division to evaluate the IW’s work status;
(b) The opinion of the treating doctor;
(c) The opinion of a doctor who is providing regular treatment as a referral doctor based on the treating doctor’s referral;
(d) The opinion of a doctor who evaluated the IW as a consulting doctor based on the treating doctor’s request; and
(e) The opinion of any other doctor based on an actual physical examination of the IW performed by that doctor.
The opinion of a designated doctor who has specifically been appointed by the Division to determine an IW’s ability to return to work pursuant to Section 408.0041(a)(5) is presumed to be correct unless it is overcome by the preponderance of the other medical evidence to the contrary. Section 408.0041(e).
BFOE/Time to Accept/Reject. The IC may deem the offered wages to be PIE on the earlier of the date the IW rejects the offer or the seventh day after the IW receives the offer unless the IW’s treating doctor notifies the IC that the offer made is not consistent with the IW’s work restrictions. If the offer is made by mail, the IW is deemed to have received the offer five days after it was mailed. Section 129.6(g).
BFOE and Disability Distinguished. The IW’s treating doctor released her to modified duty employment as of June 2, 2004, working a maximum of eight hours a day with certain physical restrictions. On June 2, 2004, the IW obtained a job as a parking attendant earning $6.25 an hour and working 27 hours per week. There was no evidence that the reduced hours were due to the IW’s compensable injury as opposed to limited available work hours. On June 7, 2004, the employer issued a “BFOE” at $7.54 an hour as a people greeter. The HO stated that there was no issue of BFOE before him, and that the IW received the job offer after she was already working her new job. The HO determined that the IW had disability from April 24, 2004, through the date of the hearing. On appeal, the IC argued that the HO erred in failing to consider evidence that the employer had offered the IW a BFOE. The AP reversed and remanded the HO’s disability determination noting that it agreed that there was no issue of BFOE before him, but disability was. The AP noted that the Act does not impose on an IW the requirement to engage in new employment while still suffering from some lingering effects of the injury unless such employment is reasonably available and fully compatible with the IW’s physical condition and generally within the parameters of the IW’s training, experience, and qualifications. Because the HO refused to consider the employer’s offer of employment as evidence that the IW had an ability to obtain and retain employment at the preinjury wage simply because a BFOE issue was not before him, the case was remanded to the HO to consider the job offer in the context of disability. APD 042385.
The disputed issues at the CCH were whether the employer made a BFOE and whether the IW had disability. The employer offered the IW modified duty employment based on a TWCC-73 (Work Status Report) issued by the IW’s treating doctor on October 23, 2001. No evidence was presented regarding the wages being offered for the modified duty employment as compaired with the IW’s preinjury AWW, or the duration of the modified duty employment being offered. The IW signed and accepted the offer on October 24, 2001. The IW testified that he only worked the modified duty employment for three days because his pain did not allow him to continue. The HO determined that the modified duty employment offered by the employer was a BFOE, and that the IW did not have disability based only on the BFOE determination. The AP affirmed the BFOE determination and remanded the case to the HO for additional findings on disability. Disability and BFOE are different yet related issues. The mere fact that a BFOE has been issued does not serve to end disability where the offered wages are not equivalent to the preinjury AWW. The evidence was not clearly developed on either how the offered wages compared to the IW’s preinjury AWW, or the duration of the modified duty employment offered. As such, no determination regarding disability could be made.APD 023020.
Section 129.6(c)/All Requirements Met. When a job offer meets all of the requirements set out in Section 129.6(c), the HO may still determine that the offer does not constitute a BFOE because it is not a reasonable offer. Section 129.6(h); APD 020198. Whether such an offer is reasonable so as to constitute a BFOE is a question of fact for the HO to resolve. APD 001791.
BFOE Found. The IW was released to modified duty employment by her treating doctor. On November 8, 2002, the employer extended a job offer which complied with all of the requirements of Section 129.6(c) and the IW accepted it. The IW testified that she had to leave her modified duty employment on November 13, 2002, because of pain from the compensable injury. The IW’s treating doctor took her completely off work on December 9, 2002. The HO determined that the employer had tendered a BFOE and that the IC was entitled to adjust PIE in accordance with the offer. The HO stated that she did not find the IW’s testimony regarding her ability to perform the modified duty employment to be credible. The HO further stated that the medical records did not explain why the IW could not perform the modified duty employment, or what aspects of the same would aggravate her condition. The fact that an IW is taken completely off work does not automatically void a BFOE. Since the HO was not persuaded that the IW could not perform the work provided under the modified duty restrictions of the BFOE, the HO could conclude that the BFOE remained valid and that the IC was entitled to reduce the IW’s TIBs by the amount deemed to be PIE. APD 031290.
BFOE Not Found. The IW’s preinjury schedule was from 2:00 p.m. to 10:00 p.m. because of childcare considerations. The employer tendered a job offer with scheduled hours of 7:00 a.m. until 3:30 p.m., with an additional provision that she work Saturdays from 6:00 a.m. to 2:00 p.m. The IW testified that she attempted to work out an arrangement with her employer that would more closely accommodate the daycare schedule and that she offered to work at a different facility of the employer which was closer. The employer responded that the IW had to work at the facility where she was injured. The HO determined that the employer had made a BFOE, and noted that there is no requirement that the light duty be “temporally convenient” to the IW. The AP reversed and rendered a decision that the employer had not issued a BFOE in conformity with Section 129.6. Section 129.6 does not require an IW to adapt a significantly different schedule than the one on which she was employed at the time of her injury.APD 001502.
Section 129.6(c)/Not All Requirements Met. If all of the requirements of Section 129.6(c) are not met, there can be no BFOE as a matter of law. The following are examples of employment offers which were determined not to be BFOEs:
The employment offer failed to state the location at which the IW would be working as required by Section 129.6(c)(1). APD 041082.
The employment offer failed to state the IW’s work schedule as required by Section 129.6(c)(2). APD 020198.
The employment offer failed to state the wages which the IW would be paid as required by Section 129.6(c)(3). APD 042864.
The employment offer failed to state a description of the physical and time requirements that the position would entail as required by Section 129.6(c)(4). APD 020198.
The employment offer failed to state that the employer will only assign tasks consistent with the IW’s physical abilities, knowledge, and skills and will provide training if necessary. APD 010110-s.
Section 129.6(g) and (h)/When May IC Unilaterally Adjust TIBs. Before an IC may unilaterally adjust TIBs based upon a BFOE, it must first evaluate the offer taking into consideration the factors listed in Section 129.6(e) and (f).
Adjustment Allowed. The IW was employed to do oil changes and sustained a compensable injury on February 8, 2000. The IW’s treating doctor released him to restricted duty on April 6 and July 10, 2000. Pursuant to the July 10, 2000, Work Status Report, the employer tendered a valid BFOE as a service writer. The IW rejected the offer without attempting to do the job, stating that his restrictions precluded him from looking down to write. There was evidence that the orders were written on an “electronic clipboard” that could be held at any height, sitting or standing. The employer next offered the IW a job as a greeter which he turned down on his “attorney’s instructions.” The HO determined that the employer had offered a valid BFOE entitling the IC to adjust TIBs. The HO stated that he was not persuaded by the IW’s assertion that the offered jobs fell outside of his treating doctor’s restrictions.APD 010577.
Adjustment Not Allowed. The IW’s treating doctor referred her to Dr. D for pain management. On April 29, 2004, Dr. D’s physician’s assistant (PA) signed a Work Status Report releasing the IW to work with restrictions. The employer prepared an offer of employment, attached the Work Status Report, and sent it to the IW. The HO determined that the offer of employment was based on a release to return to work not signed or issued by a doctor and therefore, it was not a BFOE and the IC was not allowed to adjust PIE. Rule 129.6 requires that the offer be based upon a doctor’s assessment of the IW’s work status provided that the assessment is made based upon an actual physical examination. Dr. D’s name appeared nowhere on the Work Status Report and a PA is not a doctor.APD 042765.
Existence/Duration of Disability Raised by Other Evidence (I03)
Disability is defined as an IW‘s inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IW’s pre-injury wage. Section 401.011(16). Before disability can be established, the IW must first prove he or she sustained a compensable injury. APD 023210.
The IW has the burden to prove that disability exists. The existence of disability depends upon whether the IW is earning less money at work as a result of the compensable injury. This means that the IW must show, by a preponderance of the evidence, that the compensable injury is a cause of his or her reduced wages. APD 032579.
There can be many causes for an IW to be unable to earn the pre-injury wage. The IW does not need to prove that the compensable injury is the sole cause of the reduced wages, the IW must only prove that the compensable injury is one of the causes. APD 032851.
After a compensable injury, an IW may have many different periods of disability. Whenever the IW is not working, or is working and earning less than the pre-injury wages because of the compensable injury, disability begins; then, disability will end when the IW begins to earn wages equal to or more than the IW’s pre-injury wage. APD 032725.
Dates of Disability.
When there is a dispute regarding disability, the period in dispute begins the day after the date of the injury and continues through the date of the CCH unless the dates for the periods of disability are included in the statement of the issue. In their decisions, HOs will usually only state the period of disability and not state the periods of no disability. However, any period not stated to be a period of disability in the HO’s decision beginning on the date of injury and continuing through the date of the contested case hearing is presumed to be a period of no disability. Once disability has been litigated through a CCH and an accrual date for income benefits established and finalized, that date cannot be changed through a subsequent CCH. The doctrine of res judicata prevents the relitigation of issues which have been resolved in prior suits. Barr v. Resolution Trust Corp., 837 S.W. 2d 627 (Tex. 1992).
At a CCH held on June 15, 2004, an issue was “Did the [ IW] have disability resulting from an injury sustained on August 20, 2002, and if so, for what periods?” No stipulations were made with regard to the period from August 20, 2002, to January 14, 2004. [At the June 15, 2004 CCH, the IW requested disability from January 14, 2004, through the date of the CCH.] The hearing officer’s decision on June 17, 2004, concluded that the IW had disability from January 14, 2004, through the date of the CCH. The IC appealed the decision, asserting that the IW did not establish disability from January 14, 2004, through the CCH. The IC did not argue that there was prior disability from August 20, 2002, through January 14, 2004. The AP affirmed the HO’s decision. In a subsequent CCH, the primary issue was “What is the date of maximum medical improvement (MMI) pursuant to Section 401.011(30)(B), the expiration of 104 weeks from the date on which income benefits began to accrue?” The IW argued that the issue was res judicata, the beginning date of disability having been established in the prior hearing. The IC claimed that res judicata did not apply, and that the IW had a compensable injury resulting in periods of disability beginning August 21, 2002. The HO determined that the IW had chosen not to litigate the entire period of disability in the prior CCH and that income benefits began to accrue on August 21, 2002, with statutory MMI occurring on August 16, 2004. The AP reversed and rendered a decision that the date that income benefits began to accrue was January 21, 2004, and the date of statutory MMI pursuant to Section 401.011(30)(B) would be January 19, 2006. APD 050120-s.
Evidence That Disability Exists
The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO‘sCCH determination regarding disability. For each of these fact circumstances there are cases where a HO reached the opposite result because the HO did not believe the evidence presented by one of the parties.
Restricted Duty Release/Removal From Work. A doctor’s report that an IW cannot work because of the compensable injury is evidence of disability. A doctor’s report that restricts the IW’s activities and prevents the IW from doing the job that he or she did at the time of the injury so that the IW is earning less money than the AWW is also evidence of disability. APD 030927. If an IW has been returned to work with restrictions, the IW does not have to prove that there is no work available which would fit his or her restrictions in order to establish disability. APD 941249. An IW under a restricted duty release does not have to look for work for purposes of establishing disability.APD 020417.
Standard of Review. Whether an IW has disability is a question of fact for the HO to decide. Disability can be proven by the IW’s CCH testimony alone. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.); APD 032940. However, the testimony of an IW, as an interested party, only raises issues of fact for the HO to resolve and is not binding on the HO. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.); APD 032579.
The HO is the sole judge of the weight and believability to be given to the evidence presented at the CCH. Section 410.165(a) . The HO is the trier of fact and resolves the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.);Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). For example, depending on the evidence presented, a HO may choose to disbelieve that an IW actually has the physical limitations requiring the restrictions placed upon him or her by any given doctor. APD 023176. This is equally true when a doctor asserts that the IW has no restrictions at all. APD 031749.
Medical Considerations.
Medical Care. Evidence that an IW is still undergoing treatment for the compensable injury can support a claim for disability. APD 032661.
Medication. The HO may consider past, present, and recommended future treatment in determining if disability exists and for what time period. The HO may consider the effects of any medications an IW is taking for the treatment of the compensable injury. APD 92299.
Pain. A HO may consider the level of pain an IW is experiencing, and how that may affect the IW’s ability to work.APD 001437.
Alien Status. An IW’s alien status is not a bar to receiving benefits under the 1989 Act. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.-El Paso 1972, writ ref’d n.r.e.); APD 022258-s. However, if an IW returns to work, even at light duty, and is later terminated, laid off, or quits, and the evidence shows that the IW’s medical condition has not changed, the IW may not establish disability if the sole reason other employment cannot be obtained is the IW’s illegal alien status. APD 000529.
Full Duty Release. If an IW is given a full duty release, the HO may consider that in reaching a determination regarding disability. APD 032215.
Incarceration. Because disability is an economic concept, an IW cannot have disability for any period of time that the IW is incarcerated. This is so because the inability to earn the pre-injury wage is attributable to the incarceration, not the compensable injury. APD 023069.
Resignation. When an IW returns to work under a restricted duty release and later resigns, disability ends if the HO determines that the IW is earning less than the AWW because of the resignation. APD 041917. An IW’s voluntary resignation is a factor that the HO may consider, but resignation does not automatically preclude a finding of disability. APD 021818.
Reasonable Availability of Employment. An IW under a restricted duty release is not required to look for work or prove that work is not available within the restrictions for purposes of establishing disability. However, even if the IW is under a doctor’s restricted medical release to work, disability may end if the IW is able to obtain and retain employment at wages equivalent to the preinjury wage. APD 91045. Evidence to establish an end of disability must show that employment at preinjury wages, meeting the conditions of the medical release, is reasonably available to the IW and that the IW has not availed himself or herself of such employment opportunities. APD 020352. [Cross-reference: Existence/Duration/Disability Raised by Allegation of Bona Fide Offer (I02)].
Retirement. An IW’s voluntary retirement from his or her pre-injury employer is evidence that disability has ended.APD 021818. Retirement is a factor for the HO to consider in determining whether the IW has disability. The mere fact that an IW retires after the date of injury does not automatically preclude a finding of disability after the retirement date. If the IW can prove that the compensable injury is still a cause of the inability to earn pre-injury wages after retirement, disability exists. APD 022499.
Sole Cause. Disability ends if the IC can prove that a non-compensable preexisting condition or intervening injury (or some other factor unrelated to the compensable injury) is the sole cause of the IW’s inability to earn the pre-injury wage. APD 032713. Sole cause is an affirmative defense. APD 971727. Because sole cause is an affirmative defense, an IC that raises sole cause as a defense must specifically plead the issue and has the burden of proof.Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977); Texas Workers’ Compensation Fund v. Mandlbauer, 988 S.W.2d 750 (Tex. 1999).
Termination. When an IW returns to work under a restricted duty release after the injury and is later terminated, the question becomes whether it is the termination or the injury that causes the inability to obtain or retain preinjury wages. In such a case, an IW’s termination may end disability. APD 032971. Termination for cause does not necessarily preclude disability, but may be considered by the HO in determining why an IW is unable to earn the preinjury wage. Thus, disability continues after termination if a cause of the inability to earn the preinjury wage after termination was the compensable injury. APD 032767.
Unemployment Benefits Application/Payment. An IW’s application for and receipt of unemployment benefits does not necessarily preclude a finding of disability. Aetna Casualty & Surety Co. v. Moore, 386 S.W.2d 639 (Tex. Civ. App.-Beaumont 1964, writ ref’d n.r.e.); APD 032289. Application for and receipt of unemployment benefits are factors which the HO can consider in reaching a disability determination. APD 032129.
Return to Work Guidelines. ICs, health care providers, and employers shall use the disability duration values in the current edition of the MDA as guidelines for the evaluation of expected or average return to work time frames.Section 137.10(a) . The Division return to work guidelines provide disability duration expectancies, and are presumed to be a reasonable length of disability duration. Section 137.10(c) . However, the disability duration values in the guidelines are not absolute values and do not represent specific lengths or periods of time at which an IW must return to work; rather, the values represent points in time at which additional evaluation may take place if full medical recovery and return to work have not occurred. Section 137.10(e). Section 137.10 is effective on or after May 1, 2007. Section 137.10(g).
Disability Periods Prior to May 1, 2007. In her original decision, the HO determined that (1) the IW reached MMI on November 21, 2003; (2) the IW’s IR was 10%; (3) the first certification of MMI and assigned IR became final pursuant to Section 408.123; and (4) the IW had disability beginning June 11, 2002, and ending November 21, 2003. In APD 070139, the AP reversed the HO’s determination that the IW’s disability ended on November 21, 2003 (the date of MMI) as not being supported by the evidence and remanded the case for an ending date of disability that is supported by the evidence. On remand, the HO in her decision dated May 7, 2007, used the MDA in making her determination that the IW had disability beginning June 11, 2002, and ending November 12, 2003. The AP reversed and rendered a decision that the IW had disability beginning June 11, 2002, and ending on August 18, 2004. The AP noted that Section 137.10 was not in effect during any of the claimed period of disability, and held that the HO erred in applying the MDA because (1) the MDA was not in evidence; (2) no notice was given to the parties at either the original CCH or at the time of the decision after remand that the MDA would be considered; and (3) the entire period of disability at issue was prior to the May 1, 2007 effective date of Section 137.10. APD 071087-s . Disability Period Beginning Prior to and Ending After May 1, 2007. The HO determined that the IW sustained a compensable injury on July 9, 2006 and had disability from August 16, 2006 through October 16, 2006. The IW appealed, arguing that the HO used an arbitrary period of disability set forth in the current edition of the MDA rather than rely on the medical evidence. In her decision the HO referenced both the MDA and the ODG stating that the MDA and ODG indicate it is not appropriate to determine the IW had sustained the full extent of disability alleged. The HO also referenced that the “guidelines contemplate that an injured worker in a physically demanding job, such as claimant described, would be expected to be off work a maximum of approximately two months for a sprain/strain injury to the neck or back.” The IW had previously been examined by a DD to determine (1) the extent of the compensable injury; (2) whether the IW’s disability is a direct result of the work-related injury; and (3) the ability of the IW to return to work. The DD concluded that the IW’s injury is directly caused by her on the job injury and that the IW is able to return to work in a light duty capacity with an FCE to consider what type of duties are appropriate. The AP reversed and remanded the case because the HO failed to make a finding that a preponderance of the evidence was contrary to the DD’s report. The AP noted that although Section 137.10 provides the MDA shall be presumed to be a reasonable length of disability duration, the rule clarifies that the MDA provides disability duration expectancies and is not an absolute value and does not represent specific lengths or periods of time at which an IW must return to work. Regarding the HO’s use of the MDA, the AP stated that although the beginning date of disability was prior to May 1, 2007, the effective date of the Division’s adoption of the MDA, a portion of the claimed disability period extended beyond May 1, 2007, and therefore it was not error for the HO to consider the return to work guidelines in making her disability determination. On remand the HO was to inform the DD that the Division has adopted the MDA as its return to work guidelines, but that factors influencing disability durations as mitigating circumstances may be considered. The AP ruled that disability duration values in the MDA are tied to job classifications and that consideration of the MDA requires knowledge of the specific conditions that are part of the compensable injury in order to determine the duration values listed. Thus, the HO was to inform the DD of the IW’s specific job classification (sedentary, light, medium, heavy, or very heavy) and to ask the DD to answer the extent of injury question with more specificity. APD 071108-s.
Income Benefits Accrual Date (I04)
The accrual date for income benefits is the date the IW is first entitled to receive payment of income benefits. Income benefits do not begin to accrue until the eighth day of disability. Section 124.7(b) ; APD 032435. [Cross-reference: Existence/Duration of Disability Raised by Other Evidence (I03) ]. For dates of injury occurring before September 1, 2005, if the disability continues for four weeks or longer from the date the disability began, the income benefits shall be computed from the date disability began. For dates of injury occurring on or after September 1, 2005, if the disability continues for two weeks or longer after the date the disability begins, the income benefits shall be computed from the date the disability begins. Section 408.082(c) .
The date of MMI is significant for several reasons. Once an IW reaches MMI, he or she is no longer entitled to TIBs. Section 408.101(a). An IW cannot be assigned an IR until he or she reaches MMI. Section 130.1(b)(2).
MMI means the earlier of:
(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;
(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or
(C) the date determined as provided by Section 408.104 (relating to extension of the 104 weeks due to spinal surgery). Section 401.011(30); Section 130.1(b)(1).
An IW may be found to be at the statutory date of MMI (the expiration of 104 weeks from the date on which income benefits begin to accrue) even though he or she requires additional and/or continuing medical care and treatment. An IC may not stop paying for required medical care related to the IW’s work-related injury merely because the IW has reached MMI. Section 408.021.
Certification of MMI. The information in this section only relates to the certification process. The dispute process is contained in the section that follows.
Authorized Doctor. Section 130.1(a) provides in part that only an authorized doctor may certify MMI. The following may be authorized to certify MMI if Section 130.1(a)(1)(B) is complied with:
(i) the IW’s treating doctor (or a doctor to whom the treating doctor has referred the IW for evaluation of MMI and/or IR in the place of the treating doctor, in which case the treating doctor is not authorized);
(ii) a designated doctor; or
(iii) a RME doctor selected by the IC and approved by the Division to evaluate MMI and/or IR after a designated doctor has performed such an evaluation.
Doctor Authorized to Certify MMI. The HO refused to adopt Dr. D’s certification solely because Dr. D was a chiropractor. The AP reversed and remanded the case to the HO for further explanation as to why he refused to adopt Dr. D’s certification. There was no allegation or evidence that Dr. D was not an authorized doctor. APD 042239.
Doctor Not Authorized to Certify MMI. The designated doctor was no longer on the Designated Doctor List; however, a letter of clarification from the Commission (now Division) was sent to the designated doctor asking whether he should change his certified MMI date and assigned IR because the IW had surgery after the designated doctor examined the IW. The designated doctor responded that his opinion had not changed. Relying on the designated doctor’s response to the letter of clarification, the HO adopted the designated doctor’s certification. The HO’s decision was reversed and remanded. At the time the designated doctor responded to the letter of clarification he was no longer authorized to act in that capacity because he was no longer on the Designated Doctor List as required by Section 180.21(a) (now Section 180.21(b)). Because the doctor was not authorized to act as the designated doctor at the time he responded to the letter of clarification, the case was remanded for the appointment of a second designated doctor. APD 040683.
Date Not Prospective. The date of MMI may not be prospective or conditional; however, it may be retrospective to the date of the certifying exam. Section 130.1(b)(4)(C)(i) and (ii).
The treating doctor’s report dated March 16, 1994, certified that the IW would reach MMI on March 21, 1994, with a 19% IR. The HO correctly determined that this report could not be adopted because it contained a prospective MMI date. Ausaf v. Highlands Insurance Company, 2 S.W.3d 363 (Tex. App.-Houston [1st District] 1999, pet. denied).
Physical Examination. A certification of MMI must be based upon a complete medical examination of the IW for the explicit purpose of determining MMI. Section 130.1(b)(4)(B).
The IW’s treating doctor certified that he was at MMI on January 21, 2000, with a 4% IR. The IW disputed the certification and a designated doctor was appointed. The designated doctor examined the IW, and determined that he reached MMI on March 13, 2000, with a 5% IR. The IW underwent a series of injections and physical therapy in July 2000, and testified that his condition improved by 60%. On August 9, 2000, the designated doctor was sent additional medical reports and asked if they changed his opinion regarding MMI and IR. On August 14, 2000, without physically re-examining the IW, the designated doctor responded changing his date of MMI to August 14, 2000, and maintaining the 5% IR. The HO gave the designated doctor’s amended report presumptive weight and adopted it. The case was reversed and remanded back to the HO because the amended certification of MMI was done without a medical examination in violation of Section 130.1(b)(4)(B). APD 010297-s.
Signed. In order to be valid, a certification of MMI and IR must be signed by the certifying doctor. The certifying doctor may use a rubber stamp signature or an electronic facsimile signature of the certifying doctor’s personal signature. Section 130.1(d)(1)(A).
The IW was examined by a referral doctor for the purpose of determining MMI and IR. The examining doctor placed the IW at MMI as of the date of the examination with a 5% IR. The report containing the certification was not signed by the certifying doctor, but instead an unidentified individual signed the report “for” the certifying doctor and initialed the signature. This same individual also signed the treating doctor’s name indicating agreement with the certification. The HO determined the certification was valid and had become final because the individual that signed and initialed the document on the examining doctor’s behalf was an “apparent agent” of the certifying doctor. The AP reversed and rendered a decision that the certification was not valid, and therefore could not become final. Section 130.12(c)(3)provides that in order for a certification to be valid, it must contain the signature of the authorized certifying doctor. Section 130.1(d)(1)(A) defines what constitutes a valid signature. There are no provisions that allow an “agent” to sign the certification for the certifying doctor. APD 042044-s.
Dispute of MMI. A party must dispute the first valid MMI date certified by an authorized doctor within 90 days of written notice through verifiable means. The notice must contain a copy of a valid DWC-69. If a party fails to so dispute the certified MMI date may become final. [Cross-reference: IR finality/90 day disputes (I12)].
Extension of MMI. [Cross reference: (S01), (S02) Spinal Surgery]
An extension of MMI under Section 408.104 applies only to claims based on a compensable injury occurring on or after January 1, 1998, and only where spinal surgery has been approved or actually occurred in the 12-week period prior to the IW’s statutory MMI date. Section 408.104; §126.11(a). The Division looks to the factors listed in §126.11(f) in determining approval or denial of an extension request. See §126.11 for specific requirements in requesting an extension of MMI under Section 408.104.
Invalid Extension. The IW had spinal surgery on 9/13/00, and Commission (now Division) personnel believed the IW would reach statutory MMI on 10/25/00. Commission personnel assisted the IW in timely submitting a request to extend his MMI pursuant to Section 408.104. On 11/29/00, the Commission issued an order extending the IW’s MMI to 2/10/01 and notifying both parties of the right to dispute by requesting a BRC within 10 days; neither party disputed the order. The IW later discovered a mistake had been made in calculating his statutory MMI, and the correct date should have been 4/28/01. The Commission sent a letter dated 4/24/01 correcting the statutory MMI date to 4/28/01. The HO determined the IW reached statutory MMI on 4/27/01 by operation of law. The IC appealed, arguing that the 11/29/00 order established the MMI date because the IW failed to dispute the order. The AP affirmed the HO, stating it would be error to allow an erroneously extended MMI date prior to the actual statutory MMI date. APD 011840-s.
Valid Extension. The parties stipulated at the CCH that the claimant sustained a compensable injury on 11/10/00; that the IW’s statutory MMI was 11/15/02; that the IC approved spinal surgery on 10/23/02; and that the IW had spinal surgery on 11/4/02. The HO extended the IW’s MMI for six months based on medical evidence that recovery time from multilevel spinal fusions vary from six months to one year. The AP affirmed the HO’s determination. APD 032328.
Dispute of Extension Approval. A party wishing to dispute the extension of statutory MMI must file a request for a BRC under§141.1 within ten days after the date the order is received. §126.11(g). Failure to timely file a request for a BRC results in waiver of the right to dispute the extension order. §126.11(h). This is true even if the Division does not issue the extension order within 10 days as required under §126.11(b). APD 042275-s.
MMI Dispute. §126.11(i) discusses the effect of a doctor’s certification of MMI dated between the date the Division extension order was issued and the extended date of MMI specified in the Division order. However, a Division extension order that is not disputed will supercede all certifications of MMI done prior to the issuance of the Division order. APD 020187-s.
Impairment Rating (I07)
IR means the percentage of permanent impairment of the whole body resulting from a compensable injury. Section 401.011(24); Section 130.1(c)(1) . Impairment means any anatomic or functional abnormality or loss existing after MMI that results from a compensable injury and is reasonably presumed to be permanent. Section 401.011(23). The doctor evaluating permanent impairment must consider the entire compensable injury. APD 043168. If the doctor evaluating impairment determines there is no permanent impairment from the compensable injury a zero percent IR or no impairment is assigned. APD 991083; Section 130.1(c)(1). The doctor assigning the IR shall provide a description and explanation of specific clinical findings related to each impairment, including 0% ratings. Section 130.1(c)(3)(D)(i).
IIBs are based on the IW‘s IR. Section 408.121(b) . IIBs begin on the day after the IW reaches MMI and end on the earlier of: a period computed at the rate of three weeks for each percentage point of impairment; or the IW’s death. Section 408.121(a). IIBs are paid at 70% of the IW’s AWW, subject to Sections 408.061 and 408.062 relating to maximum and minimum weekly income benefits. Section 408.126. [Cross reference: Amount of AWW (W01)]. An IW may not recover IIBs unless evidence of impairment based on an objective clinical or laboratory finding exists. Section 408.122.
MMI must be certified before an IR is assigned. Section 408.123(a); 130.1(b)(2). [Cross-reference: Date of MMI (I06)]. Only permanent impairment may be rated. APD 030091-s. The Guides 4th Ed. p. 3/94 describe a permanent impairment as one that is “stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy.” An IR’s assignment shall be based on the IW’s condition as of the MMI date, considering the medical record and the certifying examination. Section 130.1(c)(3); APD 040313-s; APD 040998-s. A doctor who certifies that an IW has reached MMI shall assign an IR for the current compensable injury using the rating criteria contained in the appropriate edition of the Guides. Section 408.124; Section 130.1(c)(2).
Appropriate AMA Guides Edition. Section 130.1(c)(2) discusses the appropriate Guides edition to use in determining the IR for a compensable injury. The appropriate edition to use for certifying examinations conducted on or after October 15, 2001, is the Guides 4th Ed. Section 130.1(c)(2)(B)(i). However, the Guides 3rd Ed. is the appropriate edition to use if at the time of the certifying examination there is a certification of MMI by a doctor made prior to October 15, 2001, which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision. Section 130.1(c)(2)(B)(ii); APD 061227.
The Guides 4th Ed.
Adjustments for Effects of Treatment or Lack of Treatment. The DD assigned 1% impairment for “lack of treatment” referencing page 2/9 of the Guides 4th Ed. based upon his belief that the IW did not receive as much physical therapy as called for by the ODG. The HO adopted the DD’s rating, which included the 1% impairment for “lack of treatment.” The AP reversed the HO’s IR determination and remanded the case back to the HO. The AP determined that the Guides 4th Ed. do not consider whether an IW has undergone the requisite number of physical therapy session in assessing additional impairment under the section the DD relied upon. The AP therefore held that the Guides 4th Ed. do not allow for assessment of additional impairment under the facts of this case. APD 090692-s.
Advisories 2003-10 and 2003-10B. The issue at the CCH was the IW’s IR. The IW sustained a compensable back and neck injury. The IW had a multi-level cervical fusion prior to the date of MMI. The DD certified that the IW reached MMI with a 10% IR, assessing 5% impairment for the neck injury under DRE Cervicothoracic Category II and 5% impairment for the back injury under DRE Lumbosacral Category II. In response to a LOC the DD changed the IR to 25% placing the IW in DRE Cervicothoracic Category IV based on Division Advisory 2003-10. The HO determined that the IW’s IR is 25% and the IC appealed. The AP reversed the HO’s decision and rendered a decision that the IW’s IR is 10%. Division Advisories 2003-10 and 2003-10B were declared invalid and their application an ultra vires act in Texas Dep’t of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.-Austin 2006, pet. denied). The Texas Supreme Court denied the petition for review in the Lumbermens case on June 15, 2007. Therefore, the adoption of an IR that is based on the Advisories is legal error and must be reversed. Prior APDs applying the Advisories to rate impairment for spinal fusion have been overruled by the Lumbermenscase. APD 071023-s.
Commissioner’s Bulletin #B-0033-07 dated July 18, 2007, withdrew Advisories 2003-10 and 2003-10B.
Conflict Between General Directions and Figures. Where a conflict exists between the general directions and the figures in the Guides, the general directions control. In this case the IW had a wrist injury and the DD rated radial and ulnar deviation relying on Figure 29, which rates impairment based on 5 degree increments. However, the general directions for rating radial and ulnar deviation provide that the measurements be rounded to the nearest 10 degrees. Because the general directions control, the measurements for radial and ulnar deviation should be rounded to the nearest 10 degrees, not 5 degrees as provided in Figure 29. APD 022504-s.
General Directions Point Elsewhere for Further Clarification. The HO’s determination of the IW’s IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO’s determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of “Decreased circumference, atrophy.” Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.
Guarding as a Differentiator. Table 71, page 109 of the Guides 4th Ed. states “[p]aravertebral muscle guarding or spasm or nonuniform loss of [ ROM], dysmetria, is present or has been documented by a physician.” [Emphasis added]. Because the word “or” is placed between guarding, spasm, and nonuniform loss of ROM, those terms are read as being separate from each other, and the Guarding portion of Table 71 is interpreted as saying guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm, and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. APD 080966-s.
Hernia. To assess an impairment for a hernia-related injury under Table 7 “Classes of Hernia-related Impairment”, page 10/247 of the Guides 4th Ed., there must be a palpable defect in the supporting structures of the abdominal wall. APD 072253-s.
Lower Extremity Impairment. The IW sustained a compensable supracondylar fracture of the left knee. The DD measured 48 degrees of angulation and used a DRE under Table 64 of the Guides 4th Ed. and assessed a 28% IR for a displaced supracondylar fracture. The DD was advised in a LOC that an angulation over 20 degrees for a supracondylar displaced fracture results in a maximum whole person IR of 20%; however, the DD did not change his IR of 28%. The RME doctor and another doctor measured 3 degrees of angulation and the RME doctor assessed an 8% IR under Table 41 using the ROMM. The HO determined that the IW’s IR was 20%. The AP reversed the HO, finding that the HO erred in determining that the IW’s IR is 20% because no doctor had certified a 20% IR, and rendered a decision that the IW’s IR is 8% as certified by the RME doctor. The AP also held that the DD erred in determining the IW’s 28% IR, because the plain language of the Guides 4th Ed. indicates that between 5 to 9 degrees of angulation results in 5% whole person impairment; between 10 to 19 degrees of angulation results in 10% whole person impairment; and 20 degrees or more of angulation results in 10% whole person impairment plus 1% whole person impairment for each degree of angulation up to 20% maximum whole person impairment.APD 061479-s.
Mental Impairment. Mental and behavioral disorders may be rated for impairment under the Guides 4th Ed. Although Chapter 14 does not provide impairment percentages in the Table entitled “Classifications of Impairments Due to Mental and Behavioral Disorders”, the certifying doctor may consider Chapter 4 relating to the Nervous System to calculate the impairment percentage for mental and behavioral disorders from Chapter 14. Chapter 4 at page 142, first column, provides that the criteria for evaluating the emotional and behavioral impairments in Table 3 of Chapter 4 relate to the criteria for mental and behavioral impairments in Chapter 14. APD 051277. An IR for a mental or behavioral disorder must be supported by objective clinical or laboratory findings. APD 961699. The mental or behavioral disorder must be permanent to be rated for impairment. APD 030622.
Skin Impairment. Impairment for a skin disorder under Chapter 13 may be combined with impairment for loss of ROM under Chapter 3 using the CVC to determine total impairment. APD 031168.
Impairment for a skin disorder under Chapter 13 may be combined with peripheral nerve impairment under Chapter 4 using the CVC to determine total impairment. APD 071599-s.
Spine Impairment. The evaluator assessing the IW’s spine for assigning an IR should use the Injury Model, which is also called the DRE Model. The conditions within the DRE categories are listed in Table 70 on page 108 of the Guides 4th Ed. Under the Guides 4th Ed., if a doctor determines that an IW meets the criteria to be placed in a particular DRE category, the doctor is to assign the IR set out in the Guides for that particular DRE category. APD 032336-s.
In the event the evaluating doctor must choose between two or more DRE categories that may apply, the ROMM may be used in conjunction with the DRE Model as a “differentiator” to make that choice. APD 022509-s. The evaluating doctor may not merely choose a rating between DRE categories. APD 032336-s.
If none of the categories of the DRE Model are applicable the evaluating doctor may use the ROMM for assigning the IR. The doctor’s report must have a specific explanation why the DRE Model could not be used. APD 030288-s. A comment that the evaluator merely prefers “to use the Model that he or she feels is most appropriate” is insufficient justification for using the ROMM rather than the DRE Model.” APD 030288-s.
The HO’s determination of the IW’s IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO’s determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of “Decreased circumference, atrophy.” Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.
The significant clinical signs of radiculopathy may be verified by electrodiagnostic testing; however, electrodiagnostic testing indicating radiculopathy is insufficient by itself to assign impairment for radiculopathy in the absence of significant signs of radiculopathy (loss of relevant reflexes or unilateral atrophy). APD 051456.
In using the DRE Model, the doctor should select the region primarily involved and rate that region. If the injury is primarily to the cervical spine the rating would be for cervicothoracic spine impairment; if the injury was primarily to the thoracic spine the rating would be for thoracolumbar spine impairment; and if the injury is primarily to the lumbar spine the rating would be for lumbosacral spine impairment. If more than one spine region is impaired, the doctor determines the impairment of the other regions and combines the regional impairments using the CVC to express the total spine impairment. Guides 4th Ed. p. 95 and 101; APD 051306-s.
Table 71, Guides 4th Ed., p. 109, lists DRE Impairment Category Differentiators. The Guarding portion of Table 71 states “muscle guarding or spasm or nonuniform loss of ROM.” (Emphasis added) By placing the word “or” between guarding, spasm and nonuniform loss of ROM, those terms are in the disjunctive. The AP held that guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. Further, normal ROM does not preclude awarding a 5% IR for guarding under DRE Cervicothoracic Category II: Minor Impairment under the Guides 4th Ed. APD 080966-s.
Syncope. Syncope is rated for impairment under Table 22 entitled “Impairments Related to Syncope or Transient Loss of Awareness” on page 4/152 of the Guides 4th Ed., and not under Table 5 on page 4/143. APD 042912-s.
Upper Extremity Impairment. Upper extremity impairment for loss of ROM of the shoulder may be combined with upper extremity impairment for a distal clavicle resection arthroplasty under Chapter 3 using the CVC and the combined upper extremity impairment is then converted to whole person impairment. APD 071283-s.
Upper extremity impairments for a limb are combined using the CVC to determine the total upper extremity impairment and then the total upper extremity impairment is converted to a whole person impairment. APD 061569-s. (Please note that if both upper extremities are involved, derive the whole person impairment percent for each and then combine both values using the CVC. See Guides 4th Ed. page 66.)
RSD/CRPS. Impairment secondary to causalgia and RSD is derived as set forth on page 3/56 of the Guides 4th Ed. entitled “Causalgia and RSD”, not from Table 17 “Impairment of Upper Extremity Due to Peripheral Vascular Disease” on page 57 of the Guides 4th Ed. APD 052243-s.
Certifying Doctor. Only an authorized doctor may determine whether an IW has permanent impairment, and assign an IR if there is permanent impairment. Section 130.1(a). Authorized doctors are described in Section 130.1(a). It should be noted that a DD’s report has presumptive weight and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary. If the preponderance of the medical evidence contradicts the IR contained in the report of the DD chosen by the Division, the Division shall adopt the IR of one of the other doctors. Section 408.125(c); APD 071599-s.
Mistakes in Calculating the IR. The AP has held that a HO may apply a mathematical correction to a certification of IR when doing so merely corrects an obvious mathematical error and does not involve the exercise of judgment as to what the proper figures were. APD 040863. A clerical error made by the doctor in using the CVC of the Guides may also be corrected. APD 041424; Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex. App.-El Paso 1998, no pet.). A HO may not piecemeal doctors’ reports to assemble an IR. APD 050729-s.
RME Request/Failure to Attend (I08)
Upon request by the IC, or by order of the Commissioner, an IW may be required to submit to a medical examination ( RME) in order to resolve issues regarding: impairment rating; attainment of MMI; extent of injury; compensability; ability to work; and any other similar issue. Sections 408.004, 408.0041, 408.151; Section 126.5. If the IW is receiving his or her health care through a workers’ compensation health care network established under Chapter 1305, Insurance Code, the IC may not request an RME until after the IW has first been examined by a Division designated doctor. Sections 408.004(f) and 408.0041(f). If the IC is not satisfied with the opinion of the Division’s designated doctor, it may then request to have a doctor selected by the IC examine the IW. Section 408.0041(f).
An IC is required to send a copy of the request for medical examination to the IW and the IW’s representative by fax, electronic transmission, or other verifiable means. The IC is also required to maintain copies of the request and proof of its successful transmission. Section 126.5(h).
Notice to Attend
Once the request for an RME has been granted, The Division shall send a copy of the order to the IW, the IW’s representative, and the carrier. Section 126.6(a). The exam must be scheduled within thirty days from the date the order is received. Additionally, the IW is entitled to 10 days advanced notice of the RME. Section 126.6(b).
10 Day Notice Not Required for Rescheduled RME
The IW appeared for the initial RME, scheduled on August 23, 2001, but could not be seen that day because a translator was not available. The RME was rescheduled for September 12, 2001. The IW failed to attend the RME on that date due to transportation issues. A CCH was held to determine whether the IW had good cause for failing to attend the September 12, 2001, RME and, if not, whether the IC could terminate the payments of TIBs. The HO found that the IW did not have good cause, but that the IC was not entitled to suspend benefits because it had failed to give the IW 10 days notice of the examination. The AP reversed and remanded the case, stating that the 10-day notice requirement did not apply to rescheduled RMEs.APD 020108s.
Notice of RME Need Not Be Sent by Verifiable Means
The IW failed to attend an RME appointment scheduled for April 22, 2004. At the CCH the IW testified that she did not receive notice of the RME appointment. The IC presented evidence that the notice had been sent through a private shipper. The HO ruled in favor of the IW because the IC had not sent the notice through verifiable means. This was clear error. Section 126.5(g) requires that a copy of the request for an RME order be sent through verifiable means. Section 126.5(g) does not apply to the notice of the scheduled RME appointment. APD 051193s.
Failure to Attend
An IW who fails to attend an RME without good cause is not entitled to receive TIBs. An IC may suspend payment of benefits during the period for which there is no good cause for failing to attend an RME. Section 408.004(e); Section 126.6(h). The test for whether good cause exists is whether the IW acted as a reasonable, prudent person. An IW acts as a reasonable, prudent person if they act with the degree of diligence which an ordinary person would exercise in the same or similar circumstances. APD 94244. Good cause is a question of fact for the HO to decide. APD 941656. A HO’s determination as to good cause will not be set aside unless the HO acted without reference to any guiding rules or principles. APD 010828.
Good Cause Found
A CCH was held to determine whether the IW had good cause for failing to attend an RME. During the CCH, the IW credibly testified that he failed to appear for the RME scheduled for July 10, 2001, because he did not receive notice of the appointment and that the mail delivery at his apartment complex was unreliable. The evidence showed the IC sent the notice as required. Based upon the IW’s testimony, the HO determined that the IW had good cause for failing to attend the RME. Good cause is a question of fact for the HO to decide. As the HO could have found good cause based on the IW’s testimony, there was no abuse of discretion and the HO’s decision was affirmed. APD 013039.
No Good Cause
The IW did not drive and did not have a vehicle. The IW testified that he arranged to have a friend take him to his RME appointment. On the way to the appointment, the IW’s friend received a call in which the friend was informed that his father was dying or had died. The IW’s friend could not find the doctor’s office and decided to abort the trip and go to the hospital to be with his father. The HO did not believe the IW’s testimony and determined that he did not have good cause for failing to attend the RME thereby allowing the IC to suspend TIBs. Whether the IW had good cause for failure to attend the RME appointment was a question of fact for the HO to resolve. APD 010828.
Failure to Cooperate
An IW who attends an RME, but fails to participate or cooperate during the examination without good cause is not entitled to TIBs. The term “attend” in Section 126.6(h) has been construed to include and require submission to an RME. The IW must actually submit to the examination as opposed to merely attending the examination. APD 022315.
An RME was scheduled for September 15, 2000. On September 14, 2000, the IW rescheduled the RME because she was experiencing a “flare-up” of a digestive disorder. The second RME was scheduled for September 29, 2000. The IW appeared for the RME on that date, but did not feel she could be examined due to her condition. Because the examining RME doctor believed that the IW was attempting to avoid examination, and that any attempts to exam her on September 29, 2000, would be resisted, the RME doctor rescheduled the IW’s examination to November 20, 2000. The HO found that the IW’s failure to submit to the previous two exams constituted a failure to attend the RME and that the IW did not have good cause for doing do. Good cause is a question of fact for the HO to decide. As the HO did not act without reference to any guiding rules or principles, the AP affirmed. APD 010407.
Only an IC, an IW, an IW’s attorney, or an IW’s representative as defined under §150.3(a) may dispute a first valid certified MMI date. §130.12(b)(1). To dispute an IW’s first valid certified MMI date the disputing party must request a BRC pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a designated doctor has not yet been appointed, request the appointment of a designated doctor to dispute certified MMI date and assigned IR.
Dispute. On January 14, 2004, the IW received written notice of her first certification of MMI and IR assigned by a designated doctor. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IW requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the claimant’s request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under §130.12(b)(1). APD 042163-s.
The treating doctor certified a first valid MMI date and assigned a first valid IR for the IW and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a TWCC-32 requesting an appointment of a designated doctor. The IC completed Sections I and II of the form, and checked the block, “To dispute an assigned date of [MMI] and [IR],” however, the IC did not complete Section III of the form. The AP affirmed the HO‘s decision that the IC filed a TWCC-32 with the Commission on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Rule 130.12(b)(1). APD 043023-s.
Not a Dispute. The Commission-appointed designated doctor examined the IW on January 6, 2004, and issued the IW’s first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 Required Medical Examination Notice or Request for Order to have the IW examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The HO correctly decided that the IC failed to timely dispute the IW’s first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a benefit review conference or by requesting the appointment of a designated doctor, if one has not been appointed. APD 041903-s.
Dispute of Designated Doctor Impairment Rating (I11)
Only an IC, an IW, an IW’s attorney, or an IW’s representative as defined under Section 150.3(a) may dispute a first valid assignedIR. Section 130.12(b)(1). To dispute an IW’s first valid certified MMI date and/or first valid assigned IR the disputing party must request a BRC pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a designated doctor has not yet been appointed, request the appointment of a designated doctor to dispute certified MMI date and assigned IR.
Dispute. On January 14, 2004, the IW received written notice of her first certification of MMI and IR assigned by a designated doctor. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IW requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the claimant’s request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under §130.12(b)(1). APD 042163-s.
The treating doctor certified a first valid MMI date and assigned a first valid IR for the IW and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a TWCC-32 requesting an appointment of a designated doctor. The IC completed Sections I and II of the form, and checked the block, “To dispute an assigned date of [MMI] and [IR],” however, the IC did not complete Section III of the form. The AP affirmed the HO‘s decision that the IC filed a TWCC-32 with the Commission on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Rule 130.12(b)(1). APD 043023-s.
Not a Dispute. The Commission-appointed designated doctor examined the IW on January 6, 2004, and issued the IW’s first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 Required Medical Examination Notice or Request for Order to have the IW examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The HO correctly decided that the IC failed to timely dispute the IW’s first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a benefit review conference or by requesting the appointment of a designated doctor, if one has not been appointed. APD 041903-s.
An IW has only 90 days to dispute a first valid certification of MMI and/or first valid assignment of IR pertaining to the IW after it is delivered to the IW by verifiable means. An IC has only 90 days to dispute a first valid MMI certification and/or first valid IR assignment pertaining to the IW after it is delivered to the IC by verifiable means. If neither the IW nor the IC disputes the first valid certified MMI date and/or first valid assigned IR pertaining to the IW within their respective 90-day period, that first valid certified MMI date and/or first valid assigned IR is final. Section 408.123(e).
The important words and phrases are, “first”, “valid”, “delivered by verifiable means”, “90 days” (90-day period), and “dispute”. All of these are requirements that must be considered to decide whether a certified MMI date and assigned IR have become final under Sections 408.123 and 130.12. In addition, even if all of these requirements were met, there are possible exceptions under Section 408.123(f).
90-Day Period. The 90-day time period for a party begins after written notice of the first valid certification of MMI and/or first valid assignment of IR is delivered to that party by verifiable means. Sections 408.123(e) and 130.12(b). The 90-day period for the IC starts the day after its notice is delivered by verifiable means. The 90-day period for the IW starts the day after the IW’s notice is delivered by verifiable means. The 90-day periods will be the same for the IC and IW only if they each happen to have their notice delivered by verifiable means on the same day.
Delivery by Verifiable Means. Written notice of the IW’s first valid certified MMI date and/or first valid assigned IR must be provided to the IW and IC by verifiable means. Section 408.123(e). The 90-day period begins for the IC on the day after notice is delivered to it by verifiable means. The 90-day period begins for the IW on the day after notice is delivered to the IW by verifiable means. APD 041985-s. Written notice has been provided by verifiable means when it is delivered in a manner that reasonably confirms delivery to a party. This may include a statement of personal delivery, acknowledged receipt by the IW or IC, confirmed delivery by facsimile or email, or by some other confirmed delivery to the home or business address. APD 042749. When the written notice was provided or delivered to the IC or IW is a question of fact for the HO to resolve. APD 042163-s.
Written Notice Delivered by Verifiable Means. The IW testified that he received a letter from the IC in October 2005, but he did not recall the date of receipt. In evidence were the adjuster’s notes dated October 13, 2005, that indicated the DD‘s DWC-69 certification of MMI/IR was mailed to the IW via certified mail. Also, in evidence were a copy of an United States Postal Service certified mail return receipt request form or “green card” with the IW’s name, address, signature, and a date-stamp of October 21, 2005, and a track and confirm document, which correlated with the green card receipt number that showed the certified mail was delivered on October 21, 2005. The HO found that the DD’s MMI/IR certification did not become final because certification was not delivered to the IW by verifiable means. The AP reversed the HO’s determination that the DD’s certification of MMI/IR did not become final because under the facts of this case, the DD’s certification of MMI/IR was delivered to the IW by verifiable means as evidenced by the adjuster’s notes dated October 13, 2005, the green card, and the track and confirm document, which showed delivery on October 21, 2005. APD 070533-s.
The AP reversed the HO’s determination that the first certification of MMI/IR did not become final under Section 408.123 and rendered a decision that the first certification of MMI/IR became final pursuant to Sections 408.123 and 130.12. The PLN-3 and DWC-69 were mailed to the IW’s correct address by certified mail, return receipt requested; delivery of the certified mail was attempted per the notation of the date on the envelope; and the “green card” indicated that the PLN-3 and DWC-69 were included. The AP held that the IW was given verifiable written notice of the first certification of MMI/IR and it was undisputed that the IW did not dispute the certification within 90 days. APD 070913.
The TD issued the first valid certification of MMI/IR on March 12, 2007. In a fax dated March 21, 2007, the IC sent the Division a PLN-3 stating that a “copy of the DWC-69 by the [TD] is included in this fax.” The PLN-3, dated March 21, 2007, and addressed to the IW, stated that the IC was disputing the TD’s IR “(copy attached)” and that the IC made a reasonable assessment of an impairment. The HO determined the IC did not receive the certification through verifiable means. On appeal the AP determined that the IC’s referencing the TD’s report in the PLN-3 and sending a copy of the TD’s DWC-69 to the Division established acknowledged receipt of the first certification of MMI/IR. The AP reversed the HO’s determination and rendered a decision that the IC received the first certification of MMI/IR through verifiable means based on the IC’s acknowledged receipt on March 21, 2007, of the first valid certification of MMI/IR. APD 080301-s.
The HO found that the first certification of MMI and IR did not become final under Sections 408.123 and130.12 because the evidence was insufficient to show acknowledged receipt by the IW on a date certain to begin the 90-day period nor was the evidence sufficient to show that the IC had verifiable proof that the report was delivered to the IW. The AP reversed and rendered a new decision that the first certification of MMI and IR did become final. The evidence established that the first certification of MMI and assigned IR dated May 30, 2007 was delivered by verifiable means solely to the IW’s attorney, but the evidence also established that the IW exchanged it with the IC at a BRC held June 20, 2007, attended by the IW and his attorney. One of the requested BRC issues was “Entitlement to IIBs based on DD report of 05/30/07 with 5% IR.” The requested issue regarding IIBs was not indicative of a dispute of the first certification of MMI/IR, but rather a request for payment of IIBs based on the assessed 5% IR. Although the IW testified that he did not know what documents (nor the date that his attorney received them) were exchanged by his attorney at the BRC, the evidence established that the IW had a copy of the first certification of MMI and IR by the June 20, 2007, BRC. Distinguishing APD 080921-s, under the facts of this case, the AP held that the exchange of the first valid certification constitutes acknowledged receipt by the IW. There was no evidence that the IW disputed the first valid certification of MMI and IR within 90 days of delivery of written notice through verifiable means. APD 081248-s.
Written Notice Not Delivered by Verifiable Means.Other than the IW’s testimony, no evidence was presented at the CCH to indicate that the notification was delivered to the IW by verifiable means. In this circumstance, the HO was free to believe the IW’s testimony to establish the date notice was first delivered to the IW by verifiable means. APD 041241-s.
The IC provided evidence at the CCH that the DWC-28 Notification Regarding [MMI] and/or [IR] of the IW’s certification, along with the DWC-69 Report of Medical Evaluation, was sent to the IW by certified mail with return receipt requested; however, the certified mail was returned to the IC because the IW never picked it up. The IW testified at the CCH that he had not received any notice regarding the certified mail. There was no evidence as to what date the notifications of the certified mail were delivered to the IW, nor was there any indication of the date the certified mail was returned to the IC. The HO found that the IW had received written notice by verifiable means to trigger the 90-day period under Sections 408.123 and 130.12. The AP reversed, stating that the IC had failed to present evidence of a date certain that would be sufficient to begin the 90-day period under Sections 408.123 and 130.12. APD 050031-s.
The HO found that the first certification of MMI and IR became final under Section 408.123 because it was not disputed within 90 days after the certification was provided to the IW’s attorney. The AP reversed and rendered a new decision that the first certification did not become final. The evidence established that the first certification of MMI and assigned IR was delivered by verifiable means solely to the IW’s attorney, but there was no evidence of delivery of the written notification of the first certification of MMI and assigned IR to the IW as required by Section 102.4(b). APD 080921-s.
Disputing the First Valid Certified MMI Date and/or First Valid Assigned IR.If within their respective 90-day periods either the IC or IW disputes the first valid certified MMI date and/or first valid assigned IR, it cannot become final.Section 408.123(e). Only an IC, an IW, an IW’s attorney, or an IW’s representative as defined under Section 150.3(a) may dispute a first valid certified MMI date and/or first valid assigned IR. Section 130.12(b)(1). To dispute an IW’s first valid certified MMI date and/or first valid assigned IR, the disputing party must request a BRC pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a DD has not yet been appointed, request the appointment of a DD to dispute certified MMI date and assigned IR.
The first valid certified MMI date and/or first valid assigned IR must be timely disputed even if the compensability of an injury is also in dispute. If an IC has failed to dispute the first valid certified MMI date and/or first valid assigned IR but has disputed the compensability of an injury and the injury is later determined not compensable, the IC will be relieved of the obligation to pay benefits. The 90-day dispute provision of Sections 408.123(e) and 130.12 will not make a first valid certified MMI date and/or first valid assigned IR final where an injury has been found not compensable. APD 043105-s.
Dispute.On January 14, 2004, the IW received written notice of her first certification of MMI and IR assigned by a DD. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IW requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the IW’s request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under Section 130.12(b)(1). APD 042163-s.
The TD certified a first valid MMI date and assigned a first valid IR for the IW and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a DWC-32 requesting an appointment of a DD. The IC completed Sections I and II of the form, and checked the block, “To dispute an assigned date of [MMI] and [IR],” however, the IC did not complete Section III of the form. The AP affirmed the HO’s decision that the IC filed a DWC-32 with the Division on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Section 130.12(b)(1), and that the first valid certified MMI date and first valid assigned IR did not become final. APD 043023-s.
Not a Dispute. The Division-appointed DD examined the IW on January 6, 2004, and issued the IW’s first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a DWC-22 Required Medical Examination Notice or Request for Order to have the IW examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The HO correctly decided that the IC failed to timely dispute the IW’s first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a BRC or by requesting the appointment of a DD, if one has not been appointed. APD 041903-s.
First Valid Certifications of MMI And First Assignments of IR.There can be only one first valid certified MMI date and/or first valid assigned IR and it is the one that is made first in time. However, if the first valid certification of MMI and/or assignment of IR should be modified, overturned, or withdrawn by final decision of the Division or court or withdrawn by agreement of the parties, that first valid certified MMI date and/or first valid assigned IR is no longer valid as of the date of the modification, overturning, or withdrawal. Then, the first valid certified MMI date and/or first valid assigned IR that is made after the date of the modification, withdrawal, or overturning may become final under Sections 408.123(h) and 130.12(a)(3).
Section 408.123(f) Exceptions to Finality After 90-Day Period. An exception to finality after the 90-day period shall be based on “compelling medical evidence.” Section 408.123(f).
Improper or Inadequate Medical Care.
Not an Exception.On March 23, 2005, the IW received notice of the first valid MMI certification and IR assignment by verifiable means. The IC preauthorized SS on February 1, 2005. The IW initially declined SS but later had the SS on July 19, 2005. The IW disputed the first valid MMI certification and IR assignment on August 9, 2005. The IW testified at the CCH that the surgery improved his condition and relieved his symptoms. The HO determined that the first MMI certification and IR assignment did not become final under Section 130.12 because there was compelling medical evidence of improper or inadequate treatment of the IW’s injury prior to the surgery. The AP reversed the HO’s determination because the improper or inadequate treatment must occur prior to the date of certification. The AP also found that the IW’s initial refusal of SS did not result in inadequate treatment. APD 052666-s.
Mistaken Diagnosis or a Previously Undiagnosed Medical Condition.
An Exception. The first valid certification of MMI and assignment of an IR was based on a diagnosis of a lumbar strain/sprain. During the 90-day period to dispute the first certification of MMI/IR, diagnostic tests revealed a herniated disc. The HO determined that the first certification of MMI/IR became final because the IW was aware that he was misdiagnosed within the 90-day dispute period, but did not dispute the certification. The AP reversed the HO’s decision and rendered a decision that the first certification of MMI/IR did not become final because there was compelling medical evidence of a clearly mistaken diagnosis and held that it was of no legal significance that the IW may have been aware of the misdiagnosis during the 90-day dispute period. The AP noted that the exceptions in Section 408.123(f)(1)(A), (B), and (C) do not provide that the exceptions only apply if knowledge of the facts giving rise to an exception occurs after the 90-day period has expired, and that the AP could not create such an exception to the exceptions. APD 061493-s.
The HO determined the first certification of MMI/IR became final under Section 408.123. The first certification was issued by the TD on August 24, 2005, placing the IW at MMI on that date with a 0% IR. The IW claimed the first certification did not become final because she had a previously undiagnosed condition of CTS. There was no diagnosis of CTS until June 2006. A test performed on June 28, 2005 noted no neurophysiologic evidence of CTS; however, the interpretation of that test specifically warned of a possible false negative and suggested retesting if clinically indicated. A doctor recommended CTS release surgery on August 18, 2006, and another doctor, based on a review of medical records, found that based on failure of non-operative treatment for the CTS the requested procedures were indicated medically. The IW ultimately underwent CTS release surgery on November 13, 2006. The DD placed the IW at statutory MMI with a 7% IR. The AP reversed the HO’s decision and rendered a new decision that the first certification by the TD did not become final under Section 408.123 because there was compelling medical evidence of a previously undiagnosed medical condition of CTS. The AP stated that Section 408.123(f)(1)(B) did not require that the previously undiagnosed condition be present at the time of the first certification and declined to read such a requirement into the statute. APD 080297-s.
Significant Error in Applying the Guides or Calculating IR.
An Exception. The DWC-69, Report of Medical Evaluation, showed the IR as being 19% but the certifying doctor’s narrative report showed the correct IR calculation to be 28%. This is an exception to finality after the 90-day period. APD 050729-s.
The HO correctly determined that the TD’s first valid certified MMI date and first valid assigned IR was not final because the TD used the wrong edition of the Guides in determining the IR.APD 992419.
The AP reversed and remanded for the HO to determine whether radiculopathy was a part of the compensable injury and whether the first certification of MMI/IR became final. If the HO determined that radiculopathy was not part of the compensable injury, an IR given based on radiculopathy would be an exception to the finality rule because compelling medical evidence exists in the record to establish a significant error on the part of the certifying doctor in applying the appropriate Guides or in calculating the IR. APD 060170-s.
The fact that an exception under Section 408.123(f) can be established does not make the first certification of MMI/IR invalid for purposes of initially determining whether it is a valid certification under Section 130.102(c) and subject to Section 408.123(e). In this case, there was compelling medical evidence of a significant error in applying the Guides and in calculating the IR in that the DD improperly converted to whole person impairments prior to combining the upper extremity impairments in assessing the IR. The evidence supported the HO’s finding that the DD’s first assigned IR did not become final under Section 408.123(e) because an exception to finality existed under Section 408.123(f)(1)(A). The RME doctor’s IR did not become final under Section 408.123 because under Section 130.12(a)(3) it was not the first valid subsequent certification of MMI and/or assignment of IR or determination of no impairment received after the date a certification of MMI and/or assignment of an IR or determination of no impairment is overturned, modified, or withdrawn by agreement of the parties or by a final decision of the Division or a court. APD 061569-s.
The DD reported that the IW was not at MMI. Subsequently, a TD MMI/IR referral doctor certified the IW reached MMI on September 12, 2006, with a 12% IR. The referral doctor later amended his report to a 16% IR to include impairment for a distal clavicle resection arthroplasty he had failed to rate in his initial report. There was no appeal of the HO’s determination that the IW reached MMI on September 12, 2006, so that is the IW’s MMI date. The AP affirmed the HO’s determination that the referral doctor’s failure to rate the distal clavicle resection arthroplasty in his original report constituted compelling medical evidence of a significant error in applying the Guides in calculating the IR, and that the 12% IR did not become final because of Section 408.123(f)(1)(A). The AP reversed and remanded the HO’s decision that the IW’s IR was 16% because there was no IR assigned by a DD as required by Section 408.125(a). The case was remanded for the DD to assign an IR based on the IW’s condition on September 12, 2006, the unappealed MMI date. APD 071283-s.
Not an Exception. The AP held that the district court judgment on extent of injury was not compelling medical evidence which established an exception to finality under Section 408.123. The AP determined that the CCH record did not reveal compelling medical evidence to establish that there was a significant error in applying the AMA Guides or in calculating the IR. The HO’s determination that the first certification of MMI/IR did not become final was reversed and a decision was rendered that the first certification of MMI/IR did become final. APD 061599-s.
Valid MMI Certification and IR Assignment. A valid certification of MMI and/or assignment of IR requires the following four elements: (1) the certification must be on a DWC-69, Report of Medical Evaluation; (2) the certification must contain an MMI date that is not prospective; (3) the certification must contain an impairment determination of either no impairment or a percentage IR assigned; and (4) the certification must contain the signature of the certifying doctor who is authorized under Section 130.1(a) to make the assigned impairment determination. Section 130.12(c); APD 050729-s.
Examples of Invalid MMI Certifications and IR Assignments. An individual on behalf of the certifying doctor signed the IW’s DWC-69, Report of Medical Evaluation. The HO determined that the individual signing the DWC-69 was the certifying doctor’s agent, and therefore found the first valid certified MMI date and first valid assigned IR valid. The HO went on to find that the first valid certified MMI date and first valid assigned IR became final under Section 130.12. The AP reversed, stating that a first valid certified MMI date and first valid assigned IR must either contain the certifying doctor’s actual signature on the DWC-69 or have his or her signature affixed with a rubber stamp or an electronic facsimile signature. [See Section 130.1(d)(1)(A).]APD 042044-s.
It was undisputed that the DD’s report dated August 12, 2004, certifying MMI on that date with a 15% IR was the first certification of MMI/IR. The evidence indicated that on August 17, 2004, the IC received by fax the DD’s narrative. Subsequently, on September 13, 2004, the DD faxed a copy of the DWC-69 to the IC. The IC disputed the DD’s certification on December 7, 2004, by filing a request for BRC. The focus in this case was whether the receipt of the narrative report on August 17, 2004, was sufficient to begin the 90-day clock of Sections 408.123 and 130.12. The AP affirmed the HO’s decision that the first certification of MMI/IR assigned by the DD on August 12, 2004, did not become final. The AP stated that where the rule states that the MMI and/or IR assigned must be on a DWC-69, Report of Medical Evaluation, other means of communication of the MMI/IR, such as in this case, by means of a narrative report without a DWC-69, are insufficient to begin the 90-day dispute period of Sections 408.123 and 130.12(b). APD 050747-s.
Reduction/Suspension (IIBs or SIBs) for Contribution from Prior Compensable Injury (I15).
At the request of the IC, the Commissioner may order a reduction in IIBs and SIBs in a proportion equal to the proportion of a documented impairment that resulted from prior compensable injuries. Section 408.084(a). In determining whether to allow a reduction, and in what amount, the Commissioner shall consider the cumulative impact of the compensable injuries on the IW’s overall impairment. Section 408.084(b). At least two compensable injuries must exist for the IC to request contribution.
Burden of Proof. When contribution is sought due to a prior compensable injury, the IC has the burden of proof to establish that it is entitled to, and the amount of, contribution. The IC need not prove an exact percentage; however, there must be sufficient evidence of a contribution percentage that is reasonably supportable. APD 961211.
A determination of contribution must be based on medical evidence, but the existence of medical evidence supporting contribution does not require an award of contribution. APD 941170. Likewise, the mere existence of a prior compensable injury is insufficient to support entitlement to contribution. APD 031237.
Cumulative Impact. To be entitled to contribution, the IC must provide an analysis showing the cumulative impact of the prior compensable injury and the latest compensable injury and how the injuries work together and the extent to which the prior compensable injury contributes to the current impairment. APD 941338. An IC’s request for contribution cannot be denied solely because the cumulative impact analysis does not convert the impairment rating from the earliest compensable injury to a rating under the same version of the AMA Guides under which the latest compensable injury was rated. APD 030864-s.
In assessing cumulative impact, the starting point is to look at the recent impairment followed by looking back to the earliest impairment rather than starting with the earliest impairment and looking forward to events that have not yet happened. APD 960589.
An IC that does not provide an adequate cumulative impact analysis fails to meet its burden of proof and is not entitled to contribution. Entitlement to contribution is a question of fact for the HO to resolve. APD 042339.
Where IIBs and SIBs have been awarded and it is determined that an IC is entitled to contribution based on a prior compensable injury, SIBs and IIBs must be reduced in the same proportion. Ins. Co. of Pa. v. Moore, 43 S.W.3d 77 (Tex. App.-Fort Worth 2001, no pet.).
Effective Date. Contribution does not apply to income benefit payments which accrue prior to the filing of a request for contribution. APD 002211-s.
Recoupment for Contribution. It was undisputed that an overpayment had been made by the IC due to a Division contribution award. An IC may only recoup overpayments on IIBs and SIBs that accrue on or after the date the IC files the request for contribution, which is eventually approved, with the Division. APD 050523-s.
Rate of Recoupment for Contribution.Section 128.1(e)(2)(C) can be looked to for guidance in determining the factors to consider in determining a reasonable rate of recoupment. APD 050523-s.
Generally. Absent a specific statutory or rule provision an IC may not recoup the overpayment of income benefits from an IW‘s future benefits. APD 060318. The exception is when the overpayment is due to a miscalculation of IW’s AWW .
Income benefits and medical benefits are of a different kind and character, and one may not be reached to satisfy an overpayment of the other no matter what the reason for the overpayment. APD 002508-s. Travel reimbursement for medical care is a medical benefit. APD 022547. See Section 134.110 regarding reimbursement for travel expenses for medical treatment. [Cross-reference: Reimbursement for Medical Travel Expenses (M02)] Section 128.1(e)(2) provides that if there has been an overpayment of income benefits due to the fact that the IW’s AWW is different than what the IC had previously determined, the IC may recoup the overpayment as provided in Section 128.1(e)(2)(A),(B), and (C).
Line of Duty Pay. In City of San Antonio v. Vakey the Fourth Court of Appeals noted that line of duty payments made pursuant to Section 143.073 of the Local Government Code are not considered salary supplements or salary continuation, and further noted that while Section 504.051 permits a city self-insured to offset the amounts paid for TIBs by the amounts paid for line of duty pay, it is the amount paid under Section 143.073 that is reduced, not the workers’ compensation benefits. City of San Antonio v. Vakey, 123 S.W.3d 497 (Tex.App.-San Antonio 2003, no pet.).
Rate of Recoupment. The self-insured employer provided its adjusting company the IW’s AWW. Based upon this information, the adjusting company paid the IW TIBs. Subsequently, the adjusting company received new AWW information which revealed that the IW had been overpaid TIBs and IIBs. The adjusting company terminated the payment of IIBs, stating that “IIBs exhausted based on overpayment credit.” The HO determined that the IC was entitled to reduce the IW’s IIBs to zero in order to recoup the overpayment pursuant to Section 128.1(e)(2)(B). Section 128.1(e) provides that when the IC determines or is notified that the IW’s AWW is different than what the IC had previously determined, the IC shall adjust the AWW and begin payment of income benefits based upon the adjusted AWW no later than the first payment due at least seven days following the date on which the IC receives the new information regarding the AWW. If as a result of the change the IC has overpaid income benefits, the IC is allowed to recoup the overpayment in an amount not to exceed 25% of the income benefits the IW is entitled to based upon the new AWW as long as the IW’s income benefits are not concurrently being reduced to pay attorney’s fees or recoup a Division approved advance. Section 128.1(e)(2)(A). If the IW’s income benefits are currently being reduced, the IC may recoup the overpayment in an amount not to exceed 10% of the income benefits the IW is entitled to based upon the new AWW. Section 128.1(e)(2)(B). If the IC wants to recoup the overpayment at a greater rate than that provided for, it can do so by agreement with the IW or approval from the Division. In approving an increased percentage of recoupment, the Division’s primary consideration is the likelihood that the entire overpayment will be recouped. The Division may also consider the cause of the overpayment and the financial hardship it would cause the IW. Section 128.1(e)(2)(C). The AP reversed and rendered a decision that the IC was only allowed to reduce the IW’s IIBs by 10% per Section 128.1(e)(2)(B). The IC admitted that it failed to avail itself of the relief provided for under Section 128.1(e)(2)(C) because it did not try to negotiate a rate of recoupment with the IW, and it did not request that the Division set a rate higher than 10%. Instead, the IC unilaterally suspended the payment of IIBs. APD 033358-s.
Recoupment Allowed. The IC erred in calculating the IW’s AWW, thereby resulting in an overpayment of TIBs. The IW argued that the IC should not be allowed to recoup the overpayment because the overpayment was a result of the IC’s error and would cause an undue hardship on her. The IC is entitled to recoupment pursuant to Section 128.1(e)(2) even when the overpayment was due to the IC’s error in calculating the proper AWW. Section 128.1(e)(2) supercedes prior AP decisions which looked to the equities in determining an IC’s right to recoup an overpayment. APD 040876.
Recoupment Disallowed. By mistake after the 26th week of disability, the IC continued to pay TIBs at a rate of 75% of the IW’s AWW rather than 70%. Section 128.1(e) provides a method for the IC to recoup an overpayment of TIBs when the AWW has been miscalculated. However, Section 128.1(e) is not applicable when the overpayment is due to a misapplication of the rate to be applied to the AWW and not due to a miscalculation of the AWW itself. Where an overpayment of TIBs occurs due to a misapplication of the correct rate to be applied to the AWW, the IC is not entitled to reduce the IW’s income benefits to recoup the overpayment. APD 040425.
Redesignation of Overpaid TIBS as IIBS. TIBs continue until the IW reaches MMI, if the IW has disability, and an IW’s entitlement to IIBs, as well as the IIBs accrual date, begins on the day after the IW reaches MMI. Sections 408.101(a); 408.102(a); 408.121(a);130.8(a). Where an IC has paid TIBs to an IW after what is later determined to be the MMI date, the TIBs payments made after the MMI date are redesignated as IIBs, and the IC can take credit as IIBs those income benefits it paid to the IW as TIBs after the MMI date. APD 94872.
Entitlement to Commutation (I17)
An IW may elect to receive the remainder of IIBs to which he or she is entitled in a lump sum if the IW has returned to work for at least three months, earning at least 80% of the IW’s AWW. An IW who elects to receive the remainder of his or her IIBs in a lump sum is not entitled to any additional income benefits for the compensable injury. See Sections 408.128 and 147.10.
Election to Commute Final. An IW’s election to receive IIBs in a lump sum is final and binding if it is properly made in accordance with the requirements of Sections 408.128 and 147.10. APD 992541. An IW legally qualified to commute IIBs under Sections 408.128 and 147.10 will not be relieved of the effects of his or her election to commute IIBs based on a finding of mutual mistake regarding the extent of the compensable injury because there is no good cause exception to be relieved of the effects of the election to commute IIBs. APD 080469-s.
Election to Commute Not Final. An IW’s election to receive IIBs in a lump sum may not be final and binding if the strict requirements of Sections 408.128 and 147.10 are not complied with.
Even though the IC approved the IW’s election to receive his remaining IIBs in a lump sum based upon the IW’s representations that he had returned to work for at least three months earning at least 80% of his AWW, the election was held to be invalid. The evidence presented at the CCH showed that the IW had not returned to work for at least three months earning at least 80% of his AWW, and therefore, the IW was not legally qualified to commute IIBs pursuant to Sections 408.128 and 147.10. APD 941627.
Abandonment of Medical (I18)
A finding that an IW has abandoned medical treatment, standing alone, is generally not in itself dispositive of anything. APD 950295. Normally, abandonment of medical treatment only serves to trigger an inquiry to the appropriate doctor as to whetherMMI has been reached. APD 001587. Further, there is no provision in the Act or Rules for an IW’s disability period to be automatically terminated based solely on a determination that there has been an abandonment of medical treatment. APD 051731.
Entitlement to LIBs (I22)
In some limited cases, the compensable injury is so severe that the IW is entitled to LIBs. LIBs are income benefits that are paid until the IW’s death. Subject to Section 408.061 regarding maximum weekly benefits, the amount of LIBs is equal to 75% of the IW’s AWW, and benefits are increased at a rate of 3% a year. Section 408.161(c). Section 408.161 provides as follows:
(a) Lifetime income benefits are paid until the death of the employee for:
(1) total and permanent loss of sight in both eyes;
(2) loss of both feet at or above the ankle;
(3) loss of both hands at or above the wrist;
(4) loss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5) an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;
(6) for a compensable injury that occurs on or after September 1, 1997, a physically traumatic injury to the brain resulting in incurable insanity or imbecility (for compensable injuries which occurred prior to September 1, 1997, there has to have been an actual injury to the skull which resulted in incurable insanity or imbecility); or
(7) for a compensable injury that occurs on or after June 17, 2001, third degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and face.
(b) For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of the body part.
Whether or not an IW has presented sufficient credible evidence to establish entitlement to LIBs is a question of fact for the HO to resolve. APD 042178.
Accrual Date. LIBs accrue and become payable on the date that the IW suffers from one of the conditions listed in Section 408.161(a), and not before. Once an IW is adjudicated eligible to receive LIBs, LIBs should be paid retroactively to the date the IW first became eligible. Mid-Century Ins. Co. v. Texas Workers’ Compensation Commission, 187 S.W. 3d 754 (Tex. App.-Austin 2006, no pet.).
Burns. The IW sustained a compensable injury in 2003 resulting in burns to various parts of his body, including his hands. The IW contended that he has third degree burns covering the majority of both hands and is entitled to LIBs under Section 408.161(a)(7). The AP reversed the HO’s determination that the IW is not entitled to LIBs and rendered a decision that the IW is entitled to LIBs because the medical evidence supported the IW’s contention and the HO’s determination was contrary to the great weight and preponderance of the evidence. APD 050314.
Incurable Insanity/Imbecility. For injuries occurring on or after September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there has been a physically traumatic injury to the brain resulting in incurable insanity or imbecility. For injuries occurring prior to September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there was an injury to the skull resulting in incurable insanity or imbecility.
Brain Injury (injuries on or after September 1, 1997). The IW sustained multiple injuries, including a closed head injury, in a MVA in 2000. The IW asserted that the compensable injury included Post-traumatic Alzheimer’s Dementia and that he is entitled to LIBs. The IW’s court appointed guardian testified that the IW requires constant around the clock care. The AP affirmed the HO’s determination that the compensable injury included Post-traumatic Alzheimer’s Dementia and that the IW was entitled to LIBs due to a physically traumatic injury to the brain resulting in incurable imbecility. APD 041416.
Depression. The IW sustained her compensable injury in 1990 when she fell from a ladder and sustained a closed head injury. In the months following the injury, the IW began complaining of multiple symptoms including headaches, depression, memory defects, inattentiveness, and suicidal thoughts. No doctor documented any external trauma to the head. The trial court found that the IW was entitled to LIBs because she had sustained a head injury resulting in depression and because her depression qualifies as incurable insanity. The court of appeals determined that the IW was not entitled to LIBs. The appeals court noted that, according to dictionary references, the term “psychosis” is now used in lieu of what was formerly termed “insanity.” There was no evidence that the IW suffered from any psychotic disorder symptoms, and psychosis is distinguishable from depression by its symptoms. Because the court of appeals determined that depression does not equate to incurable insanity, it did not discuss injury to the skull. National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, (Tex. App.-Texarkana 1998, no pet.). (Due to the DOI this case was decided under law predating the 1989 Act; however, the proposition of law remains valid under the current Act.)
Skull Injury (Injuries Prior to September 1, 1997). The IW sustained his compensable injury in 1991, when the truck he was sitting in was struck by lightning. Following the injury, the IW was adjudicated to be incompetent, and the court appointed a guardian. The IW presented evidence that the lightning strike caused part of his brain to die, and that he now suffered from incurable imbecility. No evidence was presented to show that the IW sustained a blow to his skull or any injury to his skull. The HO properly determined that the IW was not entitled to LIBs because he did not sustain an injury to his skull. APD 951336.
The IW sustained a compensable injury in 1995 when he fell and struck his head. The trial court found that the IW sustained an injury to the skull structures resulting in incurable insanity or imbecility, but denied the IW LIBs because he did not fracture his skull. The court of appeals reversed the judgment of the trial court and rendered judgment that the IW is entitled to LIBs. The appeals court held that an “injury to the skull” does not require a fracture of the skull to meet the “injury to the skull” requirement in Section 408.161(a)(6).Barchus v. State Farm Fire & Cas. Co., 167 S.W. 3d 575 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).
Injury to the Spine. Section 408.161(a)(5) provides that an IW that sustains a compensable injury to the spine which results in permanent and complete paralysis of both arms, both legs, or one arm and one leg is entitled to LIBs. Claimed entitlement to LIBs pursuant to subsection (a)(5) is frequently argued and evaluated in connection with entitlement to LIBs pursuant to subsections (a)(2) and (a)(3) (see TOTAL LOSS OF USE, infra). While there are similarities between entitlement to LIBs based upon an injury to the spine and total loss of use, what needs to be proven is different. APD 011861. Whether or not the IW has presented sufficient credible evidence to establish a spinal injury resulting in permanent and complete paralysis is a question of fact for the HO to resolve. APD 031510.
The IW sustained a compensable injury while picking up a machinery part. Initially, the IW thought he had just pulled a muscle, but several days later he began to experience weakness in his leg along with a limp. The IW sought medical care, was diagnosed with a lumbar strain, and was given conservative care. The IW returned to work after receiving treatment, but a few weeks later his symptoms returned. The IW was diagnosed as having a compression of the spinal cord in the cervical spine, he received surgery, and again returned to work. After several months the IW began to experience weakness in his legs. The IW returned to his doctor who felt the IW’s spinal cord had been damaged. The doctor further believed that part of the problem was the development of scar tissue at the spinal cord which would eventually get worse and cause loss of voluntary motor control of the IW’s legs. Both of the IW’s legs are now paralyzed. The HO accepted the IW’s medical evidence which showed that the IW’s paralysis was caused by the compensable injury and the resulting treatment, despite contrary medical evidence submitted by the IC. The HO determined that the IW was entitled to LIBs. The cause of the IW’s paralysis in both legs, and his entitlement to LIBs presented factual questions for the HO to resolve. APD 002197.
The IW had lumbar spine surgery for his compensable back injury. The AP affirmed the HO’s determination that due to the compensable injury, the IW had totally and permanently lost the functional use of his legs. The AP construed that determination to be the equivalent of a finding that the IW’s legs no longer possessed any substantial utility as members of his body. The AP reversed the HO’s determination that the IW is not entitled to LIBs because the IW’s legs were not completely paralyzed and rendered a decision that the IW is entitled to LIBs based on the total and permanent loss of use of both feet at or above the ankle. The AP cited prior APDs and court decisions in rejecting the argument that because the IW had a spinal injury, the only way the IW could prove entitlement to LIBs was to show permanent and complete paralysis of his legs under Section 408.161(a)(5). The AP noted that the court in Hartford Underwriters Insurance Co. v. Burdine, 34 S.W.3d 700 (Tex. App.-Fort Worth 2000, no pet.), a pre-1989 Act case, had approved entitlement to LIBs based on the total and permanent loss of use of the legs and/or feet, as total loss of use is defined in Travelers Insurance Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962), where the injury was to the spine, and that the court in Pacific Employers Insurance Co. v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, pet. denied) had rejected the argument that the standards applied to loss of use under the prior law should not apply to cases decided under the 1989 Act. APD 070063-s.
Revisiting Entitlement to LIBs. In an unappealed 1999 CCH decision, the IW was found to have no substantial use of his legs as a result of a compensable spinal injury as of the date of the CCH, that the loss of leg function was permanent, and, therefore, the IW was entitled to LIBs. However, by August 2001 the IC discovered the IW could walk very well. The IC initiated the dispute resolution process to terminate entitlement to LIBs. At the subsequent CCH the HO found that as of the date of the CCH the IW had substantial use of his legs; that his condition had materially changed after the prior CCH; that the IC using due diligence could not have discovered the IW had use of his legs before the prior CCH; and that there is no jurisdiction to terminate LIBs. The AP reversed and rendered that there was jurisdiction to terminate LIBs and that the IW’s LIBs are terminated as of the date of the subsequent CCH. In so finding the AP noted that an IW is entitled to certain medical benefits during his or her lifetime, and that the Division retains jurisdiction to resolve disputes regarding medical treatment; as LIBs may be paid for an IW’s lifetime, the AP perceived no rational basis for holding that the Division has no continuing jurisdiction to resolve disputes over entitlement to these benefits. APD 020432-s.
Subsequent Injury Fund (SIF). [Cross-reference:Liability of Subsequent Injury Fund Carrier Reimbursement (C21)]. Sections 408.162 and 131.3 provide that if a subsequent compensable injury, along with the effects of a prior compensable injury, result in a condition which entitles an IW to LIBs, the second IC is liable for benefits only to the extent that the subsequent injury would have entitled the IW to benefits had there been no prior injury. The SIF pays the IW the difference between the LIBs amount and theTIBs, IIBs, and SIBs amounts paid by the second IC. APD 990321.
Total Loss of Use. An IW who, as a result of the compensable injury, has suffered a total and permanent loss of use of both feet at or above the ankles; both hands at or above the wrists; or one foot at or above the ankle and one hand at or above the wrist, is entitled to LIBs pursuant to Section 408.161(a)(2), (3), or (4) and (b).
Standard for Loss of Use. In determining whether an IW is entitled to LIBs based upon a total loss of use resulting from injury, the test, is (1) whether the member no longer possesses any substantial utility as a member of the body or (2) whether the condition of the injured member is such that it keeps the IW from getting and keeping employment requiring the use of the member. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962); APD 94689. The IW need not prove both prongs of the test to establish entitlement to LIBs. The IW need only prove one of the two prongs to establish entitlement to LIBs. APD 941065. In addition, to qualify for LIBs, the total loss of use must be permanent.Pacific Employers Ins. Co. v. Dayton, 958 S.W. 2d 452 (Tex. App. -Fort Worth 1997, pet. denied).
Loss of Use Established. The IW sustained a compensable injury which included diabetes and motor sensory polyneuropathy, affecting his lower extremities. The IW’s doctor testified that the IW’s feet, at or above the ankles, no longer possessed any substantial utility as members of his body and that, due to the condition of his feet, the IW was not able to get and keep employment requiring the use of the feet. The doctor further stated that the IW’s condition was expected to be permanent. The IW testified that he was confined to a wheelchair. The IC presented evidence to contradict the IW’s doctor. The AP affirmed the HO’s determination that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet. APD 012441.
Loss of Use Not Established. The IW sought entitlement to LIBs based upon a total loss of use of her hands. The IW testified regarding the activities she could not perform, and presented medical evidence regarding her upper extremity condition and her ability to work. The IC presented conflicting evidence to establish that the IW’s condition was not as severe as she claimed it to be. The HO determined that the IW was not credible, partially because a video depicted her doing activities which she testified she could not do. The AP affirmed the HO’s determination that the IW was not entitled to LIBs based upon a total and permanent loss of use of her hands. APD 040368.
Loss of Use – Evidence of Condition at Time of Trial Considered. The IW began working for the employer as a food service worker. Two years later she was transferred to a full-time custodian position. In the summer of 2000 the IW began to experience numbness, pain, and a lack of grip strength in her hands. The IW was diagnosed with CTS and ulnar entrapment to the left elbow and received surgery on both wrists and left arm. Following the surgeries the IW underwent a FCE and was determined to have the ability to perform only sedentary to light work. The IW attempted working a job in a hotel laundry and later as a custodian at an airport but quit because she was unable to perform the two jobs due to her limitations. A CCH was held on December 19, 2002. The HO determined the IW was not entitled to LIBs, and the AP affirmed the HO’s determination. On January 20, 2003, the IW returned to her orthopedic specialist and told him she could no longer perform housework due to the condition of her hands. The orthopedic surgeon noted in his report that the IW’s difficulty would prevent her from performing work activities and that the IW was “unable to work.” In the summer of 2004 the IW returned to the orthopedic surgeon, who released the IW to work with the limitations of the previous FCE. At the time of the trial the IW could not grasp objects and had constant pain in her hands, elbows, and shoulders. She was able to perform only a little housework, could drive a car, could hold a telephone for a limited time, and could write although not a lot. The IW was also able to brush her hair and teeth as well as dress herself, although these activities required much time to complete. The trial court reversed the Division’s determination and ordered the IW was entitled to recover LIBs based on the jury’s finding that the work injury resulted in the total loss of use of both hands at or above the wrists. The appellate court held the evidence, including the evidence of the IW’s condition at the time of trial, sufficiently supported the jury’s verdict and affirmed the IW’s entitlement to LIBs. El Paso Independent School District v. Pabon, 214 S.W.3d 37 (Tex. App.-El Paso 2006, no pet.). [Note: It does not appear that the LIBs issue at the CCH was limited to entitlement to LIBs “as of the date of the CCH” as in the Jackson case, summarized below.]
Loss of Use – Evidence of Deterioration After CCH not Allowed at Trial. The IW injured his leg and left knee while in the course and scope of his employment. The disputed issue at the CCH was whether the IW was entitled to LIBs based on the total and permanent loss of use of both feet “as of the date of the hearing.” The HO determined that the IW was not entitled to LIBs as of the date of the CCH, and the AP affirmed the HO’s determination. The IW sought judicial review of the AP decision. Prior to the trial the parties exchanged motions in limine. The Division’s motion included a request that no party argue or present any evidence on any issue other than the IW’s entitlement to LIBs as of the date of the CCH; however, the trial court denied the Division’s request, allowed the IW to file a trial amendment, and announced that it would allow evidence of the IW’s disability as of the date of the trial. The Division then appealed the trial court’s denial of its plea to the jurisdiction, contending that the trial court’s jurisdiction was limited to the issues decided by the AP, and, therefore, the trial court could only consider whether the IW was entitled to LIBs as of the date of the CCH. The court of appeals agreed with the Division and ruled that the trial court lacked jurisdiction to consider the IW’s eligibility for LIBs beyond the date of the CCH. In so ruling, the court noted that the HO determined the IW’s eligibility for LIBs “as of the date of the hearing,” and whether the IW is entitled to LIBs as of the date of the trial is a related but separate question. The court reasoned that to allow consideration of later facts would convert the trial from an appeal to a trial de novo. The court further noted that the HO is the only individual with authority to excuse exhaustion of administrative remedies upon a showing of good cause (good cause for not raising an issue at the BRC), and that the legislature made clear that the HO is to make the initial determination in workers’ compensation disputes and all subsequent proceedings are limited to a review of the HO’s determination. The court also stated that because the legislature did not afford trial courts the authority to excuse exhaustion of administrative remedies, the court assumes that the legislature determined that the benefits of having HOs make all initial determinations outweigh any potential efficiencies that may be gained with a complete trial de novo. The appeals court held that the trial court lacked jurisdiction to consider the IW’s eligibility for LIBs beyond the date of the CCH and remanded the case to the trial court. Texas Department of Insurance, Division of Workers’ Compensation v. Jackson, 225 S.W.3d 734, (Tex. App.-Eastland 2007, no pet.).
Prosthesis. The HO determined that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle and the AP affirmed. The IC argued that because the IW wore a prosthesis on his right leg, he was able to undertake certain tasks and therefore the member had substantial utility. The argument was rejected analogizing it to an argument that a blind man that has a seeing eye dog is not really blind. APD 952100.
Failure to Attend Designated Doctor Appointment (I24)
An IW who, without good cause, fails or refuses to attend a scheduled designated doctor examination has committed an administrative violation and is not entitled to TIBs for the time during which he or she fails to submit to the examination. Section 408.0041(i),(j). Good cause is a question of fact for the HO to resolve. APD 941656.
In the absence of a Division finding of good cause, an IC may presume an IW did not have good cause for failure to attend a scheduled designated doctor examination under the circumstances listed in Section 126.7(g)(1) and suspend TIBs as described in Section 408.0041(j) and Section 126.7(g). An IC who has suspended TIBs under Section 408.0041 and Section 126.7 is to reinitiate TIBs as of the date the IW submits to the examination unless the DD finds the IW has reached MMI or is otherwise not eligible for income benefits. Section 126.7(g)(2).
Please note that the two cases cited below were decided under former Section 130.6(c). As of this time the AP has not decided a case under Section 126.7(g).
Good Cause. The IW failed to submit to a scheduled designated doctor examination. The HO determined the IW had good cause for failing to attend the appointment because the IW did not receive notice of the appointment. The AP affirmed, noting that the credible evidence did not show the notice was sent to the IW or to his representative. APD 032927.
No Good Cause. The IW failed to submit to a scheduled designated doctor examination. The IW claimed a Commission (now Division) employee told him he did not have to attend the appointment because he had been approved to have surgery on a date after the scheduled appointment. The IW contacted the Commission after the IC suspended TIBs to request that the designated doctor examination be rescheduled. The DRIS notes did not reference a conversation with a Commission employee wherein the IW was advised he did not have to attend the examination. The HO was not persuaded that a Commission employee told the IW he did not have to attend the appointment, and therefore determined that the IW did not have good cause for failing to attend the appointment. The AP affirmed. APD 030524.
Entitlement to Multi-Employer Benefits (I25) [Cross-references:Amount of AWW (W01);Multiple Employment Employee (W06)]When an IW is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IW using the wages from all of the employers. For this purpose, the IW is required to submit a Multiple Employment Wage Statement to the IC. Section 128.1(h).
Claim Employers. The claim employer is the employer with whom the IW filed a claim for workers’ compensation benefits, and for whom the IW was working at the time of the injury. Section 122.5(a)(1). The portion of the AWW based on employment with the claim employer shall be calculated according to how the IW’s AWW would be determined if the IW did not have multiple employment. Section 128.1(h)(1).
Non-Claim Employers. A non-claim employer is any employer, other than the claim employer, who the IW was employed by on the DOI. Section 122.5(a)(2). An IW who was employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.
The portion of the IW’s AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IW during the 13 weeks immediately preceding the injury and dividing that result by 13. If the IW has not worked for 13 weeks or more prior to the DOI, the wages used to determine AWW are those paid by the employer to a similar employee who performs similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer’s business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. Section 128.1(h)(2). Wages used to determine AWW from a non-claim employer shall include only those wages reported for federal income tax purposes. Section 408.042(e); Section 128.1(h)(2). The IW must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment. APD 030164-s.
Volunteer Firefighters. The IW was a volunteer firefighter who sustained a compensable injury in July of 2002. The IW sought to have the wages from his other employment in the calculation of his AWW. The HO calculated a wage for the IW as a volunteer firefighter and then combined that amount with the wages from the IW’s other employment to determine his AWW. The AP reversed and rendered, holding that because the IW earned no wages as a volunteer firefighter, his AWW could only be based on his wages from the other employment. APD 050140.
In some cases an IW will be entitled to SIBs upon the expiration of IIBs. SIBs accrue on the latter of (1) the first day of the applicable quarter, or (2) the date the DWC-52 is received by the IC subject to Section 130.105. Section 130.104(f). SIBs are calculated quarterly and paid monthly in the amount calculated under Section 130.102(g). Sections 408.144; 130.102(g). An IW who has met the following requirements upon the expiration of IIBs is entitled to SIBs:
1. an IR of 15% or more;
2. has demonstrated an active effort to obtain employment in accordance with Section 408.1415;
3. has not elected to commute a portion of the IIBs under Section 408.128;
4. has not returned to work or has returned to work earning less than 80% of the IW’s AWW as a direct result of the IW’s impairment;
5. has completed and filed a DWC-52; and
6. has not permanently lost entitlement to SIBs.
Determination of SIBs entitlement shall be made in accordance with the rules in effect on the date a qualifying period begins. APD 100296. This segment discusses the Act and Rules in effect as of July 1, 2009.
Good Faith. Please note that the good faith requirement in previous Section 130.102(b)(2) only applied to those cases in which the qualifying period begins prior to July 1, 2009. As this segment focuses on the Act and Rules effective July 1, 2009, any cases cited within this section that refer to good faith are not cited to discuss that concept but to illustrate the proposition of the heading the case falls under.
Active Effort to Obtain Employment in Accordance with Section 408.1415. To be eligible for SIBs an IW must provide evidence satisfactory to the Division of the following:
1. active participation in a VRP conducted by DARS or a private vocational rehabilitation provider;
2. active participation in work search efforts conducted through the TWC; or
3. active work search efforts documented by job applications submitted by the recipient.
Section 408.1415.
Work Search Requirements. An IW demonstrates an active effort to obtain employment by meeting at least one or any combination of the following during each week of the entire qualifying period:
1. has returned to work in a position which is commensurate with the IW’s ability to work;
2. has actively participated in a VRP as defined in Section 130.101;
3. has actively participated in work search efforts conducted through TWC;
4. has performed active work search efforts documented by job applications; or
5. has been unable to perform any type of work in any capacity. In this case the IW must provide a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and there must not be any other records showing that the IW is able to return to work.
If the IW has not met at least one of the above-listed requirements in any week during his or her qualifying period, the IW is not entitled to SIBs unless the IW can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements. Section 130.102(d)(2).
Combining Any One or More of the Work Search Requirements in Section 130.102(d)(1)(A)-(E).The IW argued entitlement to SIBs based on (1) returning to work in a position which is commensurate with her ability to work; (2) active participation in a VRP as defined in Section 130.101; and (3) performing active work search efforts documented by job applications every week of the qualifying period in dispute. The HO found the IW demonstrated an active effort to obtain employment each week during the entire qualifying period by (1) returning to work in a position commensurate with her ability to work; (2) by performing active work search efforts documented by job applications; and (3) by actively participating in a VRP as defined by Section 130.101. The AP noted that Section 130.102(d)(1) provides that an IW may combine the work search requirements listed in (d)(1)(A)-(E) of that section for each week of the qualifying period, and examined each theory of entitlement argued by the IW to determine whether the IW met the work search requirements for each week of the qualifying period. APD 100429-s.
Participation in a VRP.
Not Actively Participating in a VRP.
The IW argued entitlement to SIBs based on active participation in a VRP as defined in Section 130.101, among other theories. The HO found the IW demonstrated an active effort to obtain employment each week during the entire qualifying period by actively participating in a VRP as defined by Section 130.101, among other things. The AP found the evidence did not establish the IW complied with Section 130.102(d)(1)(B), active participation in a VRP, because her DARS letter did not indicate that she was making a reasonable effort to fulfill her obligations in accordance with the terms of a vocational rehabilitation plan or IPE; there was no vocational rehabilitation plan or IPE in evidence; and no other evidence the IW was actively participating in a VRP during the qualifying period in dispute. Because the AP held the evidence did not establish that the IW met any of the work search requirements in week 12 of the qualifying period, the AP reversed the HO’s determination that the IW is entitled to SIBs for the disputed quarter. APD 100429-s.
The IW argued entitlement to SIBs based on active participation in a VRP. The employment goal in the IW’s IPE was identified as a social service worker, and the IW’s responsibilities in achieving this goal included, among other things, that the IW maintain 12 credit hours each semester. The IPE encompassed the entire qualifying period in question. During the qualifying period the IW was taking 12 credit hours; however, one of the classes ended three days after the start of the qualifying period. Although the IW listed job searches in excess of the minimum job search requirements in some of the weeks during the qualifying period, the IW failed to document any job searches for week 12 of the qualifying period. The HO found that the IW made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the disputed quarter and therefore determined the IW was entitled to SIBs for the disputed quarter. The AP reversed the HO’s determination and rendered a new decision that the IW was not entitled to SIBs for the disputed quarter. No other evidence was offered that the IW performed any other activity in connection with her IPE in week 12, and no evidence of any other active efforts during week 12 to meet the work search requirements of Section 130.102(d)(1) was offered. Section 130.102(d)(2) provides that an IW who has failed to meet at least one of the work search requirements in any week of the qualifying period is not entitled to SIBs unless the IW can demonstrate reasonable grounds for failing to comply with the work search requirements. The AP noted that although the HO did not make a specific written finding on reasonable grounds, the HO discussed the issue on the record and stated that in his opinion the IW did not present evidence of reasonable grounds for failing to search for work in week 12 if it is determined the IW had to perform an activity in week 12 since she was not attending classes or performing any other activity under the provisions of the IPE. There was sufficient evidence to support the HO’s stated finding of no reasonable grounds for the IW’s failure to comply with the work search requirements in week 12 of the qualifying period. APD 100615-s.
Return to Work in a Position Commensurate with the IW’s Ability to Work.
IW Did Not Return to Work in a Position Commensurate with the IW’s Ability to Work During Each Week of the Qualifying Period. The IW argued entitlement to SIBs based on returning to work in a position which is commensurate with her ability to work, among other theories. The HO found the IW demonstrated an active effort to obtain employment each week during the entire qualifying period by returning to work in a position commensurate with her ability to work, among other things. The AP found the evidence supported the HO’s finding that the IW complied with Section 130.102(d)(1)(A), return to work in a position commensurate with her ability to work, during the 3rd, 7th, and 10th weeks of the qualifying period. However, because the AP held the evidence did not establish that the IW met any of the work search requirements in week 12 of the qualifying period, the AP reversed the HO’s determination that the IW is entitled to SIBs for the disputed quarter. APD 100429-s.
Total Inability to Work.
IW Did Not Have a Total Inability to Work. The IW argued entitlement to SIBs based on a total inability work. The HO found that the IW provided a narrative report from a doctor specifically explaining how the injury caused a total inability to work during the qualifying period in question, and that no other records show that the IW was able to return to work during the qualifying period. The AP noted the report relied upon by the IW stated “[a]t the time of this letter, [the IW] only qualifies for sedentary work therefore re-training thru [DARS] is recommended.” The AP found this report does not constitute a narrative report that explains how the compensable injury caused a total inability to work in any capacity given that the doctor opined that the IW can work sedentary duty, and therefore the report did not constitute a narrative that specifically explains how the injury causes a total inability to work pursuant to Section 130.102(d)(1)(E). There were no other records in evidence constituting the narrative report under Section 130.102(d)(1)(E). The AP reversed the HO’s determination and held the IW is not entitled to SIBs for the disputed quarter.APD 100267.
Work Search Efforts. An IW shall provide documentation sufficient to establish that the IW has, during each week of the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC required for unemployment compensation in the IW’s county of residence pursuant to the TWC Local Workforce Development Board requirements. If the IW’s required number of contacts changes during a qualifying period the lesser number of contacts is required for that period. If the IW resides outside of Texas the minimum number of required contacts will be the number required by the public employment service in accordance with applicable unemployment compensation laws for the IW’s place of residence. Section 130.102(f).
IW Did Meet Work Search Efforts Requirement.
The IW’s DWC-52 listed that the IW made five work searches for each week of the qualifying period in dispute, totaling 65 work searches, and attached was a detailed job search listing showing each employer’s name and telephone number. Out of these 65 work searches the IW made about 4 to 5 job applications with potential employers. The IW conducted his search for employment through newspaper and in-store employment listings. The HO noted in the background information section of her decision that the IW’s search for work was limited to talking with 65 potential employers, five each week, and leaving an application for work with only 5 employers. The HO found the IW failed to demonstrate an active effort to obtain employment during the qualifying period for the disputed quarter. The AP noted that although Section 130.102(d)(1)(D) provides an IW has performed active work search efforts documented by job applications, Section 130.102(f) provides in part that an IW shall provide documentation sufficient to establish that the IW has, each week during the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC. The AP further noted the preamble to Section 130.102 discusses subsection (f) of that rule to clarify that work search efforts would be consistent with job applications or the work search contacts established by the TWC, and that work search efforts encompasses both job applications and work search contacts as described by the TWC rules. The AP reversed the HO and held the IW met the work search efforts requirement by making job applications and work search contacts for each week during the entire qualifying period in dispute. APD 100229-s.
IW Moved to Another State During the Qualifying Period in Dispute. The IW’s county of residence on the first day of the qualifying period in dispute was in Texas; however, during the qualifying period the IW moved to Missouri. Both the IW’s Texas and Missouri counties of residence required three minimum work searches per week. The IW’s DWC-52 for the claimed SIBs quarter listed that the IW made a minimum of three work searches each week for the qualifying period in dispute, and attached to the DWC-52 was a detailed job search list that showed the employer’s name and contact information for each of the work searches. The HO found that the IW did not submit any job applications to document an active job search during each week of the qualifying period in dispute. The AP noted that APD 100229-s cited the preamble to Section 130.102(d)(1)(D), which clarifies that “work search efforts” encompasses both job applications and work search contacts as described by TWC rules, and that the DWC-52 for the SIBs quarter in question reflected that the IW met the work search efforts requirement by making at least three job applications and work search contacts for each week during the entire qualifying period in dispute. The preamble for Section 130.102 also provides that the IW will be required to make job contacts based on the lesser of the number required on the first day of the qualifying period or the newly established number, and if the number of work search contacts provided on the SIBs application differs from the actual number of work search contacts required on the first day of the qualifying period, the lesser number of work search contacts will apply. The AP reversed the HO’s determination that the IW is not entitled to SIBs for the disputed quarter and rendered a new decision that the IW is entitled to SIBs for the disputed quarter. APD 100467-s.
IW Did Not Meet Work Search Efforts Requirement.
The IW argued entitlement to SIBs based on performing active work search efforts documented by job applications every week of the qualifying period in dispute, among other theories. The minimum number of work searches for the IW’s county of residence was 3 per week. The IW’s DWC-52 listed that the IW made a minimum of 3 work searches for the 1st through the 11th and the 13th weeks of the qualifying period. However, for the 12th week the IW documented only 2 work searches. Attached to the DWC-52 was a detailed job search listing that documented each of the IW’s searches, although there was no documentation for a third work search in week 12. The AP stated that the IW did not provide documentation sufficient to establish she had during each week of the qualifying period made the minimum number of job applications and or work search contacts consistent with the work search contacts established by TWC which are required for unemployment compensation in the IW’s county of residence. There was no evidence the minimum number of work searches during the qualifying period changed from the required minimum of three. The AP held that portion of the HO’s finding that the IW demonstrated an active effort to obtain employment each week during the qualifying period by performing active work search efforts documented by job applications is against the great weight and preponderance of the evidence. Because the AP found the evidence did not establish that the IW met any of the work search requirements in week 12 of the qualifying period, the AP reversed the HO’s determination that the IW was entitled to SIBs and rendered a new decision that the IW was not entitled to SIBs for the disputed quarter. APD 100429-s.
Commutation of IIBs. Although an IW may elect to commute the remainder of his or her IIBs (dependent upon the IW returning to work for at least three months and earning at least 80% of his or her AWW), an IW who elects to do this is not entitled to any additional benefits for the compensable injury. Section 408.128; APD 042062.
Determination of Entitlement or Non-entitlement.
First Quarter. The Division will make the determination of entitlement or non-entitlement for an eligible IW’s first quarter of SIBs. Section 130.103. If the Division determines that the IW is entitled to SIBs for the first quarter, the Division will send a notice of determination to the IW which includes all of the information listed in Section 130.103(b). If the Division determines that the IW is not entitled to SIBs for the first quarter, the Division will send a notice to the IW which includes all of the information listed in Section 130.103(c).
Subsequent Quarters. After the Division has made the determination of entitlement or non-entitlement for SIBs for the first quarter, the IC shall make determinations for subsequent quarters consistent with the provisions contained in Section 130.102. The IC shall issue a determination of entitlement or non-entitlement within 10 days after receipt of the DWC-52. Section 130.104.
IC’s Duty to Send DWC-52 to IW. Under Section 130.104(b), the IC is required to send the IW a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW a DWC-52 arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. APD 050280.
Direct Result. An IW has earned less than 80% of his or her AWW as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. Section 130.102(c). A finding of direct result is sufficiently supported by evidence that the IW sustained a serious injury with lasting effects and that the IW could not reasonably perform the type of work that he or she was doing at the time of the injury. Determination of direct result is normally a question for fact for the HO to resolve. APD 061132.
However, if an IW is not entitled to SIBs at the time of payment of final IIBs because the IW is earning at least 80% of his or her AWW, the IW may become entitled to SIBs at any time within one year after the date the IIBs period ends if:
1. the IW earns wages for at least 90 days and the wages are less than 80% of the IW’s AWW;
2. the IW has an IR of 15% or greater, has not elected to commute a portion of the IIBs benefit under Section 408.128; and has demonstrated an active effort to obtain employment in accordance with Section 408.1415; and
3. the decrease in the IW’s earnings is a direct result of the IW’s impairment from the compensable injury.
Filing the DWC-52.Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52.Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.
Untimely Filing DWC-52. An IW who fails to timely file a DWC-52 with the IC shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the IC, unless one of the following applies:
1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.
IW Failed to Timely File DWC-52. On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW’s failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280.
IC Contesting IW’s Entitlement or Amount of SIBs.
First Quarter. An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b).
Subsequent Quarter with Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC waives the right to contest the entitlement to SIBs for the subsequent quarter if the request is not received by the Division within 10 days after the date the IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW’s DWC-52 pursuant to Section 130.104(c).
Subsequent Quarter without Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC’s finding of non-entitlement and instructions about the procedures for contesting the IC’s determination as provided by Section 130.108(a). Section 130.108(d).
IC Liability. An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:
1. All accrued, unpaid SIBs, and interest on that amount, and;
2. Reasonable and necessary attorney’s fees incurred by the IW as a result of the IC’s dispute which have been ordered by the Division or court.
Immediately Preceding Quarter is Actively Under Dispute. Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b). APD 032868-s (please note this case refers to a previous version of Section 130.108).
Immediately Preceding Quarter is Not Actively Under Dispute. Where an IW’s determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).
Permanent Loss of Entitlement to SIBs. An IW who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. Sections 408.146(c); 130.106(a); APD 041231-s. However, an IW who has lost entitlement to SIBs under Sections 408.146(c) and 130.106(a) will become re-entitled to SIBs if the IW Is discharged from employment within 12 months of losing entitlement and the employer discharged the IW with intent to deprive the IW of SIBs.Section 130.109. An IW permanently loses entitlement to SIBs upon the expiration of the 401-week period calculated pursuant toSection 408.083. Section 130.106(b).
SIBs/Timely Filing of SIBs Application (I41) [Cross reference:SIBs (I31)]
Filing the DWC-52.Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52 .Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.
Untimely Filing DWC-52. An IW who fails to timely file a DWC-52 with the IC shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the IC, unless one of the following applies:
1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.
IW Failed to Timely File DWC-52. On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW’s failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280 .
First Quarter. An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b) .
Subsequent Quarter with Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC waives the right to contest the entitlement to SIBs for the subsequent quarter if the request is not received by the Division within 10 days after the date the IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW’s DWC-52 pursuant to Section 130.104(c).
Subsequent Quarter without Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC’s finding of non-entitlement and instructions about the procedures for contesting the IC’s determination as provided by Section 130.108(a). Section 130.108(d).
IC Liability. An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:
1. All accrued, unpaid SIBs, and interest on that amount, and;
2. Reasonable and necessary attorney’s fees incurred by the IW as a result of the IC’s dispute which have been ordered by the Division or court.
Immediately Preceding Quarter is Actively Under Dispute. Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b) . APD 032868-s (please note this case refers to a previous version of Section 130.108).
Immediately Preceding Quarter is Not Actively Under Dispute. Where an IW’s determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).
Other Income Benefits (I00)
Abuse of Discretion/Subsequent DD. An abuse of discretion occurs when an action is taken without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The AP has applied an abuse of discretion standard to the appointment of a second DD. APD 030467. Section 126.7(h) provides as follows:
(h) If at the time the request [for a DD] is made, the Division has previously assigned a [DD] to the claim, the Division shall use that doctor again, if the doctor is still qualified and available. Otherwise, the Division shall select the next available doctor on the Division’s [DD] List (DDL) who:
(1) has not previously treated or examined the employee within the past 12 months and has not examined or treated the employee with regard to a medical condition being evaluated in the [DD] examination;
(2) does not have any disqualifying associations as described in [Section] 180.21 of this title (relating to Division [DDL]); and
(3) has credentials appropriate to the issue in question and the employee’s medical condition.
Burden of Proof on the Party Challenging the Order. The HO found that a second DD was improperly appointed. The HO correctly placed the burden of proof on the IC, which was the party challenging the Division’s order appointing the second DD; however, the HO found that the Division abused its discretion in the appointment of the second DD. The AP reversed the HO’s determination that the second DD was improperly appointed and rendered a decision that based on the evidence, the second DD was properly appointed. In this case, the only evidence regarding why a second DD was appointed is a DRIS note reflecting that the IW would have to be sent to a different DD because the initial DD could not meet the time frame for setting up a DD appointment. Therefore, there was no showing by the IC that the Division abused its discretion in appointing the second DD. The AP stated that an order of an administrative body is presumed to be valid and that the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action, citing Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d). APD 042669-s.
The HO found that the second DD was improperly appointed. The HO incorrectly placed the burden of proof on the IC and found that it was not established by the IC that the first DD was unable or unwilling to continue as DD. However, the IW was the party challenging the appointment of the second DD, therefore the IW had the burden to establish that the second DD was not properly appointed. Because the HO incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the HO in order to apply the correct burden of proof in considering the evidence presented at the hearing. APD 042979.
Disqualifying Association Preventing a Doctor from Serving as a DD. Section 126.7(h)(2) references Section 180.21 with regard to disqualifying associations. Section 180.21(a)(2) defines a disqualifying association as any association that may reasonably be perceived as having potential to influence the conduct or decision of a doctor, which may include the situations listed in Section 180.21(a)(2)(A)-(G). The AP has determined the following to be disqualifying associations that would prevent the doctor from serving as the DD:
A doctor serving as either an IC peer review doctor or IC RME doctor and also serving as a referral doctor of the DD for the IW in the same claim. APD 100842.
Performing a DD exam in a facility of the IW’s employer. APD 101194.
The sharing of common office facilities and phone and fax numbers with a doctor with a disqualifying association. APD 101194.
The sharing of the same address, the same suite number, and the same telephone and fax numbers by the DD and the IC’s RME doctor. APD 091660.
The sharing of the same address, the same suite number, and same telephone and fax numbers by the DD and the peer review doctor. APD 091210.
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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 9, 2014, and November 18, 2014, in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease with a date of injury of [Date of Injury], and (2) because there is no compensable injury, there can be no disability “from August 28, 2013, and continuing through January 2, 2014, and at no other times.” The claimant appealed the hearing officer’s determinations stating that the hearing officer improperly placed the burden of proof on the claimant and applied the wrong legal standard. Also, the claimant contends that the hearing officer’s decision is clearly wrong, manifestly unjust and goes against the great weight of the evidence. The respondent (self-insured) responded, urging affirmance of the disputed determinations. DECISION Reversed and remanded. It is undisputed that the claimant has been employed as a firefighter with the selfinsured since August 1994, and that the claimant was diagnosed with a cancer, multiple myeloma1, in April 2013. We note that this case involves an amendment to Chapter 607 of the Government Code, by adding Subchapter B, Disease or Illnesses Suffered by Firefighters and Emergency Medical Technicians, effective September 1, 2005. See Senate Bill (S.B.) 310 of the 79th Leg., R.S. (2005). Under the facts of this case, the relevant statutes under the Government Code are as follows:
Government Code § 607.052. APPLICABILITY. (a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who: (1) on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter; 1 The evidence describes multiple myeloma as a cancer formed by malignant plasma cells. 150098-s.doc (2) is employed for 5 or more years as a firefighter or emergency medical technician; and (3) seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician. Government Code § 607.055. CANCER. (a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if: (1) the firefighter or emergency medical technician: (A) regularly responded on the scene to calls involving fires or fire fighting; or (B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and (2) the cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b). (b) This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer. Government Code § 607.057. EFFECT OF PRESUMPTION. Except as provided by Section 607.052(b), a presumption established under this subchapter applies to a determination of whether a firefighter’s or emergency medical technician’s disability or death resulted from a disease or illness contracted in the course and scope of employment for purposes of benefits or compensation provided under another employee benefit, law, or plan, including a pension plan. Sec. 3, eff. September 1, 2005. Government Code § 607.058. PRESUMPTION REBUTTABLE. A presumption under Section 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the individual’s disease or illness.
At the CCH, the claimant testified that she developed multiple myeloma during the course and scope of her employment as a firefighter. The claimant testified she 150098-s.doc 2 regularly responded to calls involving fire and firefighting and because of the nature of her work as a firefighter she developed a cancer known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen. The claimant testified that as a firefighter she responded to a particular huge explosive fire known as the “Market Street Fire” on June 24, 1995, where she was exposed to numerous chemicals and carcinogens. Also, the claimant contends that even though a statutory presumption has been established in her favor, she additionally introduced expert medical evidence to corroborate that statutory presumption. In evidence is a medical report dated April 18, 2013, that lists the claimant’s diagnosis as multiple myeloma and subsequent reports that show the claimant has undergone treatment for her cancer. A medical report from (Dr. C) dated September 23, 2013, states the claimant’s occupational exposure and years of service as a firefighter to be the major factor in the claimant acquiring multiple myeloma. In evidence is an affidavit dated March 14, 2014, from a fellow firefighter stating that he was a firefighter for 25 years with the Houston Fire Department and has also been diagnosed with multiple myeloma.
The claimant’s exhibits include evidencebased medicine regarding multiple myeloma. The claimant testified that she has met the requirements of Government Code § 607.052 (Applicability), and a causation presumption has been established in her favor under Government Code § 607.055 (Cancer). See also Government Code § 607.057 (Effect of Presumption). The claimant contends the burden of proof shifted to the selfinsured to rebut the presumption. See Government Code § 607.058 (Presumption Rebuttable). In this case there is no dispute that the claimant has met the requirements of Government Code § 607.052 which is the applicability of Subchapter B. The claimant testified that she passed a physical exam prior to being hired as a firefighter, she has been employed as a firefighter for more than 5 years, and she is seeking workers’ compensation benefits for a disease she developed during her employment as a firefighter. At issue in this case is the interpretation of Government Code § 607.055 (Cancer), regarding firefighters that develop cancer during the course and scope of their employment. A plain reading of Government Code § 607.055 indicates that both portions of Government Code § 607.055(a)(1) and (2) must be satisfied in order for a presumption to be established that the firefighter developed cancer during the course and scope of employment. In this case, there is no dispute that the claimant met the first portion of Government Code § 607.055(a)(1)(A). The claimant testified that she regularly responded on the scene to calls involving fires or firefighting. 150098-s.doc 3 The key dispute in this case is whether the claimant met the second requirement under Government Code § 607.055(a)(2) which provides that “the cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b).” Subsection (b) states that “this section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer.” Both parties dispute as to how the presumption is established and which party has the burden of proof as provided in Government Code § 607.055. The claimant argued that the presumption under Government Code § 607.055(a)(2) is established by showing that she was diagnosed with multiple myeloma during the course and scope of her employment as a firefighter, and therefore the burden of proof is then shifted to the self-insured to rebut that presumption. The selfinsured argued that the presumption under Government Code § 607.055(a)(2) is established if the claimant presents evidence of causation that multiple myeloma is shown to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer. In effect, the self-insured argued that the claimant has the burden of proof to establish that the International Agency for Research on Cancer has determined that multiple myeloma may be caused by heat, smoke, radiation, or a known or suspected carcinogen. The hearing officer states that the claimant met the threshold presumption, however the hearing officer also states that “there is no known factor that directly and unequivocally finds that multiple myeloma is directly caused by heat, smoke, radiation or a known or suspected carcinogen of which [the] [c]laimant was exposed during the course and scope of her employment.” The claimant states that the hearing officer improperly placed the burden of proof on the claimant and applied the wrong legal standard. In this case we look to the legislative intent regarding S.B. 310 that added the firefighter cancer presumption to the Government Code. As previously mentioned, S.B. 310 amended Chapter 607 of the Government Code by adding Subchapter B, Disease or Illnesses Suffered by Firefighters and Emergency Medical Technicians, which includes cancer as a disease or illness suffered by firefighters during the course and scope of employment. The House Research Organization (HRO) Bill Analysis for S.B. 310 states that the subject of the bill was to create a presumption about certain illnesses among emergency workers and that the medical conditions covered by the bill would include cancer and “presumption could be rebutted by showing through a preponderance of the evidence that the medical condition resulted from some factor not 150098-s.doc 4 related to an individual’s service as a firefighter or emergency medical technician.” HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005).
Furthermore, the HRO Bill Analysis states that supporters of S.B. 310 emphasize that: [S.B. 310] would improve firefighter and emergency personnel benefit security and shift the burden of proof away from the employee to the local government or risk pool in determining whether an employee’s illness was caused by the performance of duties. Firefighters and emergency personnel often face hazardous situations and sustain injuries, illness, and death in their efforts to save lives and property. To receive medical coverage and workers’ compensation, they must document when and where they sustained injury and illness. Because of the nature of their work, determining the origin of disease exposure or injury can be impossible to prove, yet the burden of proof currently lies with the employee. This bill appropriately would create a presumption in favor of the employee for diseases, such as certain cancers and respiratory illnesses, which typically are associated with the performance of emergency personnel duties. . . . By allowing for the rebuttal of presumption in specific situations, it would not create barriers to receiving benefits in unrelated situations. HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). Additionally, the Senate Research Center (SRC) Bill Analysis for S.B. 310 states the author’s/sponsor’s statement of intent was to explain that: Current Texas law provides that public safety personnel who contract certain occupational diseases may receive benefits if the person can prove that the disease was caused by an exposure in the line of duty, and if a specific exposure is documented in a timely manner. There is a lack of available benefits to those who do not show the effects of a disease that they contracted in the line of duty until later. S.B. 310 provides a rebuttal presumption for firefighters and emergency medical technicians for certain diseases, including . . . cancer. State Affairs, SRC Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). It is clear that the legislative intent was to shift the burden of proof from the claimant to the employer by creating a presumption of causation in favor of the firefighter or emergency medical technician. We note that the Texas Supreme Court has explained that a presumption’s “effect is to shift the burden of producing evidence to the party against whom it operates.” See Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993).
The claimant states that she has met the criteria under Subchapter B, Government Code § 607.055 and that the hearing officer also agreed that she met the threshold presumption as stated in her discussion. Based on the plain language of the statute, the legislative intent, and the hearing officer’s discussion, the evidence supports 150098-s.doc 5 that the claimant met the threshold presumption as provided in Government Code § 607.055(a)(1) and (2); that is, the claimant is presumed to have developed multiple myeloma during the course and scope of her employment as a firefighter. See also Government Code § 607.057 (Effect of Presumption). However, the claimant argues that the hearing officer misplaced the burden of proof on the claimant to show causation of a “known factor that directly and unequivocally shows that multiple myeloma is directly caused by heat, smoke, radiation or a known or suspected carcinogen of which [the] [c]laimant was exposed during the course and scope of her employment,” even though the hearing officer correctly states that she met the threshold presumption. The claimant contends that once the presumption was established, the self-insured had the burden to rebut that presumption. We agree. The hearing officer has failed to properly apply the statutory presumption to facts of this case by requiring direct and unequivocal evidence that multiple myeloma is caused by heat, smoke, radiation or a known or suspected carcinogen of which the claimant was exposed during the course and scope of her employment as a firefighter. As discussed above, the legislative intent was to create a presumption in favor of the employee and to allow for the employer to rebut that presumption by a preponderance of the evidence. Government Code § 607.058 provides that a presumption under Section 607.055 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the individual’s disease or illness. Once the presumption is established, the burden of proof is shifted to the self-insured to rebut that presumption. The hearing officer misplaced the burden of proof on the claimant to show causation once the statutory presumption was established, and by doing so applied the wrong legal standard to determine whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of [Date of Injury].
Accordingly, we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of [Date of Injury], and we remand the compensable injury issue to the hearing officer to apply the correct legal standard. Since we have reversed and remanded the compensable injury determination for the hearing officer to apply the correct legal standard, we also reverse the hearing officer’s determination that because there is no compensable injury, there can be no disability from August 28, 2013, and continuing through January 2, 2014, and at no other times, and we remand the disability issue to the hearing officer for a decision consistent with the hearing officer’s determination of compensable injury on remand. 150098-s.doc 6 REMAND INSTRUCTIONS On remand, the hearing officer is to apply the correct legal standard as provided in Government Code §§§ 607.055, 607.057, and 607.058 as it pertains to the issue of compensable injury. The hearing officer is to make a finding of facts, conclusion of laws, and a decision that is consistent with this decision. The hearing officer shall make a determination on the compensable injury and disability issues, consistent with this decision. The hearing officer is not to consider additional evidence on remand.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.
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Sec. 16.001. EFFECT OF DISABILITY. (a) For the purposes of this subchapter, a person is under a legal disability if the person is:
(1) younger than 18 years of age, regardless of whether the person is married; or
(2) of unsound mind.
(b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.
(c) A person may not tack one legal disability to another to extend a limitations period.
(d) A disability that arises after a limitations period starts does not suspend the running of the period.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 56, eff. Sept. 1, 1987.
Sec. 16.002. ONE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues.
(b) A person must bring suit to set aside a sale of property seized under Subchapter E, Chapter 33, Tax Code, not later than one year after the date the property is sold.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 1017, Sec. 3, eff. Aug. 28, 1995.
Sec. 16.003. TWO-YEAR LIMITATIONS PERIOD. (a) Except as provided by Sections 16.010, 16.0031, and 16.0045, a person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.
(b) A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 739, Sec. 2, eff. June 15, 1995; Acts 1997, 75th Leg., ch. 26, Sec. 2, eff. May 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 3, eff. September 1, 2005.
Sec. 16.0031. ASBESTOS-RELATED OR SILICA-RELATED INJURIES. (a) In an action for personal injury or death resulting from an asbestos-related injury, as defined by Section 90.001, the cause of action accrues for purposes of Section 16.003 on the earlier of the following dates:
(1) the date of the exposed person’s death; or
(2) the date that the claimant serves on a defendant a report complying with Section 90.003 or 90.010(f).
(b) In an action for personal injury or death resulting from a silica-related injury, as defined by Section 90.001, the cause of action accrues for purposes of Section 16.003 on the earlier of the following dates:
(1) the date of the exposed person’s death; or
(2) the date that the claimant serves on a defendant a report complying with Section 90.004 or 90.010(f).
Added by Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 4, eff. September 1, 2005.
Sec. 16.004. FOUR-YEAR LIMITATIONS PERIOD. (a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues:
(1) specific performance of a contract for the conveyance of real property;
(2) penalty or damages on the penal clause of a bond to convey real property;
(3) debt;
(4) fraud; or
(5) breach of fiduciary duty.
(b) A person must bring suit on the bond of an executor, administrator, or guardian not later than four years after the day of the death, resignation, removal, or discharge of the executor, administrator, or guardian.
(c) A person must bring suit against his partner for a settlement of partnership accounts, and must bring an action on an open or stated account, or on a mutual and current account concerning the trade of merchandise between merchants or their agents or factors, not later than four years after the day that the cause of action accrues. For purposes of this subsection, the cause of action accrues on the day that the dealings in which the parties were interested together cease.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1999, 76th Leg., ch. 950, Sec. 1, eff. Aug. 30, 1999.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 189, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 16.0045. FIVE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates:
(1) Section 22.011, Penal Code (sexual assault);
(2) Section 22.021, Penal Code (aggravated sexual assault);
(3) Section 21.02, Penal Code (continuous sexual abuse of young child or children);
(4) Section 20A.02, Penal Code (trafficking of persons); or
(b) In an action for injury resulting in death arising as a result of conduct described by Subsection (a), the cause of action accrues on the death of the injured person.
(c) The limitations period under this section is tolled for a suit on the filing of a petition by any person in an appropriate court alleging that the identity of the defendant in the suit is unknown and designating the unknown defendant as “John or Jane Doe.” The person filing the petition shall proceed with due diligence to discover the identity of the defendant and amend the petition by substituting the real name of the defendant for “John or Jane Doe” not later than the 30th day after the date that the defendant is identified to the plaintiff. The limitations period begins running again on the date that the petition is amended.
Added by Acts 1995, 74th Leg., ch. 739, Sec. 1, eff. June 15, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.01, eff. September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 3.01, eff. September 1, 2011.
Sec. 16.005. ACTION FOR CLOSING STREET OR ROAD. (a) A person must bring suit for any relief from the following acts not later than two years after the day the cause of action accrues:
(1) the passage by a governing body of an incorporated city or town of an ordinance closing and abandoning, or attempting to close and abandon, all or any part of a public street or alley in the city or town, other than a state highway; or
(2) the adoption by a commissioners court of an order closing and abandoning, or attempting to close and abandon, all or any part of a public road or thoroughfare in the county, other than a state highway.
(b) The cause of action accrues when the order or ordinance is passed or adopted.
(c) If suit is not brought within the period provided by this section, the person in possession of the real property receives complete title to the property by limitations and the right of the city or county to revoke or rescind the order or ordinance is barred.
Sec. 16.006. CARRIERS OF PROPERTY. (a) A carrier of property for compensation or hire must bring suit for the recovery of charges not later than three years after the day on which the cause of action accrues.
(b) Except as provided by Subsections (c) and (d), a person must bring suit for overcharges against a carrier of property for compensation or hire not later than three years after the cause of action accrues.
(c) If the person has presented a written claim for the overcharges within the three-year period, the limitations period is extended for six months from the date written notice is given by the carrier to the claimant of disallowance of the claim in whole or in part, as specified in the carrier’s notice.
(d) If on or before the expiration of the three-year period, the carrier brings an action under Subsection (a) to recover charges relating to the service or, without beginning an action, collects charges relating to that service, the limitations period is extended for 90 days from the day on which the action is begun or the charges are collected.
(e) A cause of action regarding a shipment of property accrues on the delivery or tender of the property by the carrier.
(f) In this section, “overcharge” means a charge for transportation services in excess of the lawfully applicable amount.
Sec. 16.007. RETURN OF EXECUTION. A person must bring suit against a sheriff or other officer or the surety of the sheriff or officer for failure to return an execution issued in the person’s favor, not later than five years after the date on which the execution was returnable.
Sec. 16.008. ARCHITECTS, ENGINEERS, INTERIOR DESIGNERS, AND LANDSCAPE ARCHITECTS FURNISHING DESIGN, PLANNING, OR INSPECTION OF CONSTRUCTION OF IMPROVEMENTS. (a) A person must bring suit for damages for a claim listed in Subsection (b) against a registered or licensed architect, engineer, interior designer, or landscape architect in this state, who designs, plans, or inspects the construction of an improvement to real property or equipment attached to real property, not later than 10 years after the substantial completion of the improvement or the beginning of operation of the equipment in an action arising out of a defective or unsafe condition of the real property, the improvement, or the equipment.
(b) This section applies to suit for:
(1) injury, damage, or loss to real or personal property;
(2) personal injury;
(3) wrongful death;
(4) contribution; or
(5) indemnity.
(c) If the claimant presents a written claim for damages, contribution, or indemnity to the architect, engineer, interior designer, or landscape architect within the 10-year limitations period, the period is extended for two years from the day the claim is presented.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 860, Sec. 1, eff. Sept. 1, 1997.
Sec. 16.009. PERSONS FURNISHING CONSTRUCTION OR REPAIR OF IMPROVEMENTS. (a) A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.
(b) This section applies to suit for:
(1) injury, damage, or loss to real or personal property;
(2) personal injury;
(3) wrongful death;
(4) contribution; or
(5) indemnity.
(c) If the claimant presents a written claim for damages, contribution, or indemnity to the person performing or furnishing the construction or repair work during the 10-year limitations period, the period is extended for two years from the date the claim is presented.
(d) If the damage, injury, or death occurs during the 10th year of the limitations period, the claimant may bring suit not later than two years after the day the cause of action accrues.
(e) This section does not bar an action:
(1) on a written warranty, guaranty, or other contract that expressly provides for a longer effective period;
(2) against a person in actual possession or control of the real property at the time that the damage, injury, or death occurs; or
(3) based on wilful misconduct or fraudulent concealment in connection with the performance of the construction or repair.
(f) This section does not extend or affect a period prescribed for bringing an action under any other law of this state.
Sec. 16.010. MISAPPROPRIATION OF TRADE SECRETS. (a) A person must bring suit for misappropriation of trade secrets not later than three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.
(b) A misappropriation of trade secrets that continues over time is a single cause of action and the limitations period described by Subsection (a) begins running without regard to whether the misappropriation is a single or continuing act.
Added by Acts 1997, 75th Leg., ch. 26, Sec. 1, eff. May 1, 1997.
Sec. 16.011. SURVEYORS. (a) A person must bring suit for damages arising from an injury or loss caused by an error in a survey conducted by a registered public surveyor or a licensed state land surveyor:
(1) not later than 10 years after the date the survey is completed if the survey is completed on or after September 1, 1989; or
(2) not later than September 1, 1991, or 10 years after the date the survey was completed, whichever is later, if the survey was completed before September 1, 1989.
(b) If the claimant presents a written claim for damages to the surveyor during the 10-year limitations period, the period is extended for two years from the date the claim is presented.
(c) This section is a statute of repose and is independent of any other limitations period.
Added by Acts 1989, 71st Leg., ch. 1233, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 1173, Sec. 1, eff. Sept. 1, 2001.
Sec. 16.012. PRODUCTS LIABILITY. (a) In this section:
(1) “Claimant,” “seller,” and “manufacturer” have the meanings assigned by Section 82.001.
(2) “Products liability action” means any action against a manufacturer or seller for recovery of damages or other relief for harm allegedly caused by a defective product, whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories, and whether the relief sought is recovery of damages or any other legal or equitable relief, including a suit for:
(A) injury or damage to or loss of real or personal property;
(B) personal injury;
(C) wrongful death;
(D) economic loss; or
(E) declaratory, injunctive, or other equitable relief.
(b) Except as provided by Subsections (c), (d), and (d-1), a claimant must commence a products liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by the defendant.
(c) If a manufacturer or seller expressly warrants in writing that the product has a useful safe life of longer than 15 years, a claimant must commence a products liability action against that manufacturer or seller of the product before the end of the number of years warranted after the date of the sale of the product by that seller.
(d) This section does not apply to a products liability action seeking damages for personal injury or wrongful death in which the claimant alleges:
(1) the claimant was exposed to the product that is the subject of the action before the end of 15 years after the date the product was first sold;
(2) the claimant’s exposure to the product caused the claimant’s disease that is the basis of the action; and
(3) the symptoms of the claimant’s disease did not, before the end of 15 years after the date of the first sale of the product by the defendant, manifest themselves to a degree and for a duration that would put a reasonable person on notice that the person suffered some injury.
(d-1) This section does not reduce a limitations period for a cause of action described by Subsection (d) that accrues before the end of the limitations period under this section.
(e) This section does not extend the limitations period within which a products liability action involving the product may be commenced under any other law.
(f) This section applies only to the sale and not to the lease of a product.
(g) This section does not apply to any claim to which the General Aviation Revitalization Act of 1994 (Pub. L. No. 103-298, 108 Stat. 1552 (1994), reprinted in note, 49 U.S.C. Section 40101) or its exceptions are applicable.
Added by Acts 1993, 73rd Leg., ch. 5, Sec. 2, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 5.01, eff. Sept. 1, 2003.
SUBCHAPTER B. LIMITATIONS OF REAL PROPERTY ACTIONS
Sec. 16.021. DEFINITIONS. In this subchapter:
(1) “Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.
(2) “Color of title” means a consecutive chain of transfers to the person in possession that:
(A) is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty; or
(B) is based on a certificate of headright, land warrant, or land scrip.
(3) “Peaceable possession” means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.
(4) “Title” means a regular chain of transfers of real property from or under the sovereignty of the soil.
Sec. 16.022. EFFECT OF DISABILITY. (a) For the purposes of this subchapter, a person is under a legal disability if the person is:
(1) younger than 18 years of age, regardless of whether the person is married;
(2) of unsound mind; or
(3) serving in the United States Armed Forces during time of war.
(b) If a person entitled to sue for the recovery of real property or entitled to make a defense based on the title to real property is under a legal disability at the time title to the property vests or adverse possession commences, the time of the disability is not included in a limitations period.
(c) Except as provided by Sections 16.027 and 16.028, after the termination of the legal disability, a person has the same time to present a claim that is allowed to others under this chapter.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 57, eff. Sept. 1, 1987.
Sec. 16.023. TACKING OF SUCCESSIVE INTERESTS. To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.
Sec. 16.024. ADVERSE POSSESSION: THREE-YEAR LIMITATIONS PERIOD. A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.
Sec. 16.025. ADVERSE POSSESSION: FIVE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:
(1) cultivates, uses, or enjoys the property;
(2) pays applicable taxes on the property; and
(3) claims the property under a duly registered deed.
(b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.
Sec. 16.026. ADVERSE POSSESSION: 10-YEAR LIMITATIONS PERIOD. (a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
(b) Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.
(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor’s claim extends to the boundaries specified in the instrument.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 764, Sec. 1, eff. Sept. 1, 1989.
Sec. 16.027. ADVERSE POSSESSION: 25-YEAR LIMITATIONS PERIOD NOTWITHSTANDING DISABILITY. A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
Sec. 16.028. ADVERSE POSSESSION WITH RECORDED INSTRUMENT: 25-YEAR LIMITATIONS PERIOD. (a) A person, regardless of whether the person is or has been under a legal disability, may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another who holds the property in good faith and under a deed or other instrument purporting to convey the property that is recorded in the deed records of the county where any part of the real property is located.
(b) Adverse possession of any part of the real property held under a recorded deed or other recorded instrument that purports to convey the property extends to and includes all of the property described in the instrument, even though the instrument is void on its face or in fact.
(c) A person who holds real property and claims title under this section has a good and marketable title to the property regardless of a disability arising at any time in the adverse claimant or a person claiming under the adverse claimant.
Sec. 16.029. EVIDENCE OF TITLE TO LAND BY LIMITATIONS. (a) In a suit involving title to real property that is not claimed by this state, it is prima facie evidence that the title to the property has passed from the person holding apparent record title to an opposing party if it is shown that:
(1) for one or more years during the 25 years preceding the filing of the suit the person holding apparent record title to the property did not exercise dominion over or pay taxes on the property; and
(2) during that period the opposing parties and those whose estate they own have openly exercised dominion over and have asserted a claim to the land and have paid taxes on it annually before becoming delinquent for as long as 25 years.
(b) This section does not affect a statute of limitations, a right to prove title by circumstantial evidence under the case law of this state, or a suit between a trustee and a beneficiary of the trust.
Sec. 16.030. TITLE THROUGH ADVERSE POSSESSION. (a) If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.
(b) A person may not acquire through adverse possession any right or title to real property dedicated to public use.
Sec. 16.031. ENCLOSED LAND. (a) A tract of land that is owned by one person and that is entirely surrounded by land owned, claimed, or fenced by another is not considered enclosed by a fence that encloses any part of the surrounding land.
(b) Possession of the interior tract by the owner or claimant of the surrounding land is not peaceable and adverse possession as described by Section 16.026 unless:
(1) the interior tract is separated from the surrounding land by a fence; or
(2) at least one-tenth of the interior tract is cultivated and used for agricultural purposes or is used for manufacturing purposes.
Sec. 16.032. ADJACENT LAND. Possession of land that belongs to another by a person owning or claiming 5,000 or more fenced acres that adjoin the land is not peaceable and adverse as described by Section 16.026 unless:
(1) the land is separated from the adjacent enclosed tract by a substantial fence;
(2) at least one-tenth of the land is cultivated and used for agricultural purposes or used for manufacturing purposes; or
Sec. 16.033. TECHNICAL DEFECTS IN INSTRUMENT. (a) A person with a right of action for the recovery of real property or an interest in real property conveyed by an instrument with one of the following defects must bring suit not later than two years after the day the instrument was filed for record with the county clerk of the county where the real property is located:
(1) lack of the signature of a proper corporate officer, partner, or company officer, manager, or member;
(2) lack of a corporate seal;
(3) failure of the record to show the corporate seal used;
(4) failure of the record to show authority of the board of directors or stockholders of a corporation, partners of a partnership, or officers, managers, or members of a company;
(5) execution and delivery of the instrument by a corporation, partnership, or other company that had been dissolved, whose charter had expired, or whose franchise had been canceled, withdrawn, or forfeited;
(6) acknowledgment of the instrument in an individual, rather than a representative or official, capacity;
(7) execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument;
(8) failure of the record or instrument to show an acknowledgment or jurat that complies with applicable law; or
(9) wording of the stated consideration that may or might create an implied lien in favor of the grantor.
(b) This section does not apply to a forged instrument.
(c) For the purposes of this section, an instrument affecting real property containing a ministerial defect, omission, or informality in the certificate of acknowledgment that has been filed for record for longer than two years in the office of the county recorder of the county in which the property is located is considered to have been lawfully recorded and to be notice of the existence of the instrument on and after the date the instrument is filed.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 291, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 819 (S.B. 1781), Sec. 1, eff. June 15, 2007.
Sec. 16.034. ATTORNEY’S FEES. (a) In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court:
(1) shall award costs and reasonable attorney’s fees to the prevailing party if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith; and
(2) may award costs and reasonable attorney’s fees to the prevailing party in the absence of a finding described by Subdivision (1).
(b) To recover attorney’s fees, the person seeking possession must give the person unlawfully in possession a written demand for that person to vacate the premises. The demand must be given by registered or certified mail at least 10 days before filing the claim for recovery of possession.
(c) The demand must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney’s fees in an amount determined by the court to be reasonable.
Acts 2009, 81st Leg., R.S., Ch. 901 (H.B. 556), Sec. 1, eff. September 1, 2009.
Sec. 16.035. LIEN ON REAL PROPERTY. (a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.
(b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.
(c) The running of the statute of limitations is not suspended against a bona fide purchaser for value, a lienholder, or a lessee who has no notice or knowledge of the suspension of the limitations period and who acquires an interest in the property when a cause of action on an outstanding real property lien has accrued for more than four years, except as provided by:
(1) Section 16.062, providing for suspension in the event of death; or
(2) Section 16.036, providing for recorded extensions of real property liens.
(d) On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.
(e) If a series of notes or obligations or a note or obligation payable in installments is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment.
(f) The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.
(g) In this section, “real property lien” means:
(1) a superior title retained by a vendor in a deed of conveyance or a purchase money note; or
(2) a vendor’s lien, a mortgage, a deed of trust, a voluntary mechanic’s lien, or a voluntary materialman’s lien on real estate, securing a note or other written obligation.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 1, eff. May 23, 1997.
Sec. 16.036. EXTENSION OF REAL PROPERTY LIEN. (a) The party or parties primarily liable for a debt or obligation secured by a real property lien, as that term is defined in Section 16.035, may suspend the running of the four-year limitations period for real property liens through a written extension agreement as provided by this section.
(b) The limitations period is suspended and the lien remains in effect for four years after the extended maturity date of the debt or obligation if the extension agreement is:
(1) signed and acknowledged as provided by law for a deed conveying real property; and
(2) filed for record in the county clerk’s office of the county where the real property is located.
(c) The parties may continue to extend the lien by entering, acknowledging, and recording additional extension agreements.
(d) The maturity date stated in the original instrument or in the date of the recorded renewal and extension is conclusive evidence of the maturity date of the debt or obligation.
(e) The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 2, eff. May 23, 1997.
Sec. 16.037. EFFECT OF EXTENSION OF REAL PROPERTY LIEN ON THIRD PARTIES. An extension agreement is void as to a bona fide purchaser for value, a lienholder, or a lessee who deals with real property affected by a real property lien without actual notice of the agreement and before the agreement is acknowledged, filed, and recorded.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 3, eff. May 23, 1997.
SUBCHAPTER C. RESIDUAL LIMITATIONS PERIOD
Sec. 16.051. RESIDUAL LIMITATIONS PERIOD. Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.
Sec. 16.061. RIGHTS NOT BARRED. (a) A right of action of this state or a political subdivision of the state, including a county, an incorporated city or town, a navigation district, a municipal utility district, a port authority, an entity acting under Chapter 54, Transportation Code, a school district, or an entity created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, is not barred by any of the following sections: 16.001-16.004, 16.006, 16.007, 16.021-16.028, 16.030-16.032, 16.035-16.037, 16.051, 16.062, 16.063, 16.065-16.067, 16.070, 16.071, 31.006, or 71.021.
(b) In this section:
(1) “Navigation district” means a navigation district organized under Section 52, Article III, or Section 59, Article XVI, Texas Constitution.
(2) “Port authority” has the meaning assigned by Section 60.402, Water Code.
(3) “Municipal utility district” means a municipal utility district created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 2, Sec. 4.02, eff. Aug. 28, 1989; Acts 1993, 73rd Leg., ch. 782, Sec. 1, eff. Aug. 30, 1993; Acts 1997, 75th Leg., ch. 1070, Sec. 47, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 8.204, eff. Sept. 1, 2001.
Sec. 16.062. EFFECT OF DEATH. (a) The death of a person against whom or in whose favor there may be a cause of action suspends the running of an applicable statute of limitations for 12 months after the death.
(b) If an executor or administrator of a decedent’s estate qualifies before the expiration of the period provided by this section, the statute of limitations begins to run at the time of the qualification.
Sec. 16.063. TEMPORARY ABSENCE FROM STATE. The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.
Sec. 16.064. EFFECT OF LACK OF JURISDICTION. (a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:
(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and
(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.
(b) This section does not apply if the adverse party has shown in abatement that the first filing was made with intentional disregard of proper jurisdiction.
Sec. 16.065. ACKNOWLEDGMENT OF CLAIM. An acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible in evidence to defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and is signed by the party to be charged.
Sec. 16.066. ACTION ON FOREIGN JUDGMENT. (a) An action on a foreign judgment is barred in this state if the action is barred under the laws of the jurisdiction where rendered.
(b) An action against a person who has resided in this state for 10 years prior to the action may not be brought on a foreign judgment rendered more than 10 years before the commencement of the action in this state.
(c) In this section “foreign judgment” means a judgment or decree rendered in another state or a foreign country.
Sec. 16.067. CLAIM INCURRED PRIOR TO ARRIVAL IN THIS STATE. (a) A person may not bring an action to recover a claim against a person who has moved to this state if the claim is barred by the law of limitations of the state or country from which the person came.
(b) A person may not bring an action to recover money from a person who has moved to this state and who was released from its payment by the bankruptcy or insolvency laws of the state or country from which the person came.
(c) A demand that is against a person who has moved to this state and was incurred prior to his arrival in this state is not barred by the law of limitations until the person has lived in this state for 12 months. This subsection does not affect the application of Subsections (a) and (b).
Sec. 16.068. AMENDED AND SUPPLEMENTAL PLEADINGS. If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.
Sec. 16.069. COUNTERCLAIM OR CROSS CLAIM. (a) If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitation on the date the party’s answer is required.
(b) The counterclaim or cross claim must be filed not later than the 30th day after the date on which the party’s answer is required.
Sec. 16.070. CONTRACTUAL LIMITATIONS PERIOD. (a) Except as provided by Subsection (b), a person may not enter a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the stipulation, contract, or agreement to a period shorter than two years. A stipulation, contract, or agreement that establishes a limitations period that is shorter than two years is void in this state.
(b) This section does not apply to a stipulation, contract, or agreement relating to the sale or purchase of a business entity if a party to the stipulation, contract, or agreement pays or receives or is obligated to pay or entitled to receive consideration under the stipulation, contract, or agreement having an aggregate value of not less than $500,000.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1991, 72nd Leg., ch. 840, Sec. 2, eff. Aug. 26, 1991.
Sec. 16.071. NOTICE REQUIREMENTS. (a) A contract stipulation that requires a claimant to give notice of a claim for damages as a condition precedent to the right to sue on the contract is not valid unless the stipulation is reasonable. A stipulation that requires notification within less than 90 days is void.
(b) If notice is required, the claimant may notify any convenient agent of the company that requires the notice.
(c) A contract stipulation between the operator of a railroad, street railway, or interurban railroad and an employee or servant of the operator is void if it requires as a condition precedent to liability:
(1) the employee or servant to notify the system of a claim for damages for personal injury caused by negligence; or
(2) the spouse, parent, or child of a deceased employee or servant to notify the system of a claim of death caused by negligence.
(d) This section applies to a contract between a federal prime contractor and a subcontractor, except that the notice period stipulated in the subcontract may be for a period not less than the period stipulated in the prime contract, minus seven days.
(e) In a suit covered by this section or Section 16.070, it is presumed that any required notice has been given unless lack of notice is specifically pleaded under oath.
(f) This section does not apply to a contract relating to the sale or purchase of a business entity if a party to the contract pays or receives or is obligated to pay or receive consideration under the contract having an aggregate value of not less than $500,000.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1991, 72nd Leg., ch. 840, Sec. 3, eff. Aug. 26, 1991.
Sec. 16.072. SATURDAY, SUNDAY, OR HOLIDAY. If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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