Texas Division of Workers’ Compensation–Recent Enforcement Actions in Texas Workers’ Compensation Law

AUSTIN, TX — Commissioner of Workers’ Compensation, Ryan Brannan, recently announced final disciplinary actions taken by the Division of Workers’ Compensation (DWC).

The final actions include administrative penalties ordered against insurance carriers and health care providers in the workers’ compensation system. Beginning January 1, 2015, through May 31, 2015, the Commissioner of Workers’ Compensation has ordered administrative penalties totaling $803,500 for system participants. The penalties include $588,300 in fines ordered for insurance carriers, $169,700 in fines ordered for health care providers, and $45,500 in fines ordered for other entities.

Violations of the Texas Labor Code by insurance carriers cited in recent orders include failure to accurately and timely pay benefits ordered to an injured employee, failure to accurately and timely notify DWC of termination of benefits, and failure to pay benefits in accordance with a designated doctor examination. Violations cited in orders naming health care providers include improper billing of medical services to an injured employee; issuing improper, unreasonable, or medically unnecessary treatment or medical services to an injured employee; and failure to timely file and/or accurately complete DWC forms, reports, or records. Violations cited in orders naming other entities include failure to timely respond to DWC when ordered to produce requested documents.

Summaries of disciplinary actions are available on the Texas Department of Insurance (TDI) website at:https://wwwapps.tdi.state.tx.us/inter/asproot/commish/da/dwcclips2015.asp.

Specific order summaries also can be viewed by searching by the subject of the order here:
http://www.tdi.texas.gov/commish/actions.html.

Copies of Commissioner of Workers’ Compensation orders also may be obtained by calling Maria Jimenez, DWC Enforcement, at (512) 804-4703 or via e-mail to Maria.Jimenez@tdi.texas.gov.

For more information contact: MediaRelations@tdi.texas.gov

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.

Jul 20th, 2015 Workers' Compensation Defense

The Silence of the Voice of Justice When it Mattered Most Has Made it Possible for Evil to Triumph

QUOTES ON LIBERTY AND JUSTICE, TRUTH AND DUTY:

“I believe that every individual is naturally entitled to do as he pleases with himself and the fruits of his labor, so far as it in no way interferes with any other men’s rights.”

-Abraham Lincoln

“My principles are freedom for all people… I‘m trying to wake up Hollywood. It‘s been a bastion of freedom but they‘re being deceived, suckered into this indoctrination of the federal government which is leading toward a totalitarian country. They‘ve lost sight of individual liberty.” Daily Variety

-Aaron Russo, Hollywood producer

“The most flagrant acts of injustice were perpetrated for the purpose of forcing a particular dogma upon the Democratic organization, and the gentleman who is the representative of that dogma is the representative also of principles which I will be able to show repugnant alike to reason and the Constitution.”

-John Breckinridge

“The Turkish denial [of the Armenian Christian Genocide] is probably the foremost example of historical perversion. With a mix of academic sophistication and diplomatic thuggery — of which we at Macquarie University have been targets — the Turks have put both memory and history into reverse gear.”

-Stanley Cohen, Professor of Criminology, Hebrew University, Jerusalem

“Conscious of my own weakness, I can only seek fervently the guidance of the Ruler of the Universe, and, relying on His all-powerful aid, do my best to restore Union and peace to a suffering people, and to establish and guard their liberties and rights.”

-George B. McClellan

“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”

-Haile Selassie, Emperor of Egypt

“We will not be a party to the monstrous doctrine of coercion.”

-John W. Ellis

“The problem is big government. If whoever controls government can impose his way upon you, you have to fight constantly to prevent the control from being harmful. With small, limited government, it doesn’t much matter who controls it, because it can’t do you much harm.”

-Harry Browne

“The strongest cause in bringing the Texas Revolution against the Mexican government was… they could not understand our methods of government and we could not endure their idea of a republic.”

-A Texas Revolutionary

“Whenever is found what is called a paternal government, there is found state education. It has been discovered that the best way to ensure implicit obedience is to commence tyranny in the nursery.” 1874

-Benjamin Disraeli

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism …” Ex Parte Milligan, 1866

-U.S. Supreme Court Justice David Davis

“A soldier’s life is not a pleasant one. It is always, at best, one of privations and hardships. The emotions of patriotism and pleasure hardly counterbalance the toil and suffering that he has to undergo in order to enjoy his patriotism and pleasure. Dying on the field of battle and glory is about the easiest duty a soldier has to undergo. It is the living, marching, fighting, shooting soldier that has the hardships of war to carry. When a brave soldier is killed he is at rest. The living soldier knows not at what moment he, too, may be called on to lay down his life on the altar of his country. The dead are heroes, the living are but men compelled to do the drudgery and suffer the privations incident to the thing called “glorious war.”

-Samuel Watkins

“To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”

-Thomas Jefferson

“It is dangerous to be right when the government is wrong.”

-Voltaire

“No one can read our Constitution without concluding that the people who wrote it wanted their government severely limited; the words “no” and “not” employed in restraint of government power occur 24 times in the first seven articles of the Constitution and 22 more times in the Bill of Rights.”

-Edmund A. Opitz

Jul 20th, 2015 Interesting Quotes in History

Travis County Court Approves $84.4 Million Settlement in Farmers Insurance Case–Texas Insurance Defense Law

AUSTIN – A Travis County district court has granted preliminary approval of a settlement with Farmers Insurance Group that will return $84.4 million to policyholders stemming from a 2002 rate case.

“I’m pleased with the court’s decision,” said Texas Insurance Commissioner David Mattax. “It’s time to return this money to policyholders, who have been waiting for more than a decade. These refunds, combined with the rate reductions Farmers agreed to in 2002, are excellent news for consumers.”

Mattax noted that the court’s original approval of the settlement in 2003 described the agreement as “an extraordinarily high percentage of recovery on the claims that were asserted.” The amended version adds an additional $10 million for consumers to account for the delays while the settlement was challenged in court.

Notices about the settlement will be mailed within 60 days to people who may be eligible for a refund.

Mattax also thanked the Texas Attorney General’s Office for its work representing the state in the long, complex case.

For more information contact: MediaRelations@tdi.texas.gov

Jul 20th, 2015 Insurance Defense Litigation

Regional Workplace Safety Summit August 12 in Austin, Texas–for Texas Employers

July 14, 2015

AUSTIN, TX — The Division of Workers’ Compensation is hosting a regional workplace safety workshop August 12 in Austin to help employers learn how to avoid common workplace injuries and comply with federal safety requirements.

The workshop will be 8 a.m. to 4 p.m. at the Holiday Inn Austin-Town Lake, 20 North IH-35. The cost is $50 per person, which includes coffee and snacks. Presentations will cover:

Components of an effective accident prevention program.
Guidance on complying with Occupational Safety and Health Administration (OSHA) programs and training.
The latest information on safe work areas, construction requirements for exit routes, and how to develop effective emergency action plans and fire prevention plans.

Participants can find full course descriptions and register online on the Texas Department of Insurance website at www.tdi.texas.gov/wc/safety/regional.html. For more information, call (512) 804-4610 or emailsafetytraining@tdi.texas.gov.

For more information contact: MediaRelations@tdi.texas.gov

Jul 19th, 2015 Construction Law, Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Our Most Cherished Tradition Is a Free Society

QUOTES ON LIBERTY AND JUSTICE, TRUTH AND DUTY:

“American Jeffersonian Democracy was born of a Rebellion against a Tyrannical Government.”

-David Bridges

“If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; and may posterity forget that ye were our countrymen.”

-Samuel Adams

“No word appeared more grand, more expressive or significant than this. Under God as the asserter of our rights, the defender of our liberties, our protector against danger, our mediator, our ruler and guardian, and, as the avenger of our wrongs and the punisher of our crimes, we endeavor to equal or even excel our ancestors. What word can be suggested of more power, and so replete with sentiments and thoughts consonant with our idea of the omnipotence and justice of God?”

-Rapahel Semmes

“Benevolence comes from within as a reflection of our personal, individual sense of well-being. To force it, externally – through moral intimidation (altruism), social intimidation (duty), or at the point of a gun (legislation) – debilitates our personal sense of well-being and negates the source of benevolence.” (4/7/04)

– Richard Rieben

“Bad men cannot make good citizens. A vitiated state of morals, a corrupted public conscience are incompatible with freedom.”

-Patrick Henry

“Sanctify yourselves against tomorrow.”

-S.R. Gist

“A nation can only be free, happy, and great in proportion to the virtue and intelligence of the people.”

-Stephen F. Austin

“Here I stand. I cannot do otherwise. God help me. Amen.” Hier Stehe ich. Ich Kann nicht anders. Gott helf mir. Amen

-Martin Luther

“Economic history is a long record of government policies that failed because they were designed with a bold disregard for the laws of economics.”

-Ludwig von Mises

“I would fight for my liberty so long as my strength lasted, and if the time came for me to go, the Lord would let them take me.”

-Harriet Tubman

“There is nothing stable but Heaven and the Constitution.”

-James Buchanan

“Our most cherished tradition is a free society where man can learn, can work, can go as far as his own capacity carries him and seek the goals of his own choosing. In a free society, knowledge can- not be decreed; it must be sought. Opportunity cannot be assured; it must be cultivated. Security cannot be given; it must be earned. In this climate of freedom we have built a system of government necessary to the growth of the nation and the progress of the people. Civilized men create government to meet their needs, and its very role demands responsiveness to change. But when that government becomes so unwieldly, so inflexible that it fails to serve those who created it for their com-mon good, it becomes a burdensome and negative force.” Texas Governor’s Inaugural Address, 1965

-John Connally

“The budget should be balanced, the Treasury should be refilled. Public debt should be reduced. The arrogance of officialdom should be tempered and controlled. The assistance to foreign lands should be curtailed lest Rome become bankrupt. People must again learn to work, instead of living on public assistance.”

-Marcus Tullius Cicero

“You may all go to Hell, and I will go to Texas.”

-David Crockett

“Wherever politics intrudes upon economic life, political success is readily attained by saying what people like to hear rather than what is demonstrably true. Instead of safeguarding truth and honesty, the state then tends to become a major source of insincerity and mendacity.”

– Hans F. Sennholz

“Those who make peaceful change impossible will make violent revolution inevitable.”

– John F. Kennedy

Jul 19th, 2015 Interesting Quotes in History

Unnecessary Laws Are Not Good Laws

QUOTES ON LIBERTY AND JUSTICE, TRUTH AND DUTY:

“A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.” Letters of John Adams, Addressed to His Wife

-John Adams

“A right delayed is a right denied.”

-Martin Luther King Jr.

“While credit has brought riches to some it has impoverished many. Credit is always exercised by the capable business man with great care and with such reasonable sinking fund or equity under reasonable safeguards as to meet emergencies. The businessman who uses his credit and weathers all storms is indeed well ballasted. Credit when exercised by municipalities or other political subdivisions should be exercised with the same care. Safeguards and limitations against the making of such obligations is essential. The future should never be mortgaged except when an adequate necessity exists and then under reasonable limitations. One of the dangers of any community is in improving too fast, and incurring too many obligations. We should advance and progress wisely, carefully and surely, so that there should be no reaction. We feel now the burden of the hand of the tax gatherer, but if we examine into details we find that a great part of these taxes are gathered every year to provide a sinking fund for municipal indebtedness. Oft’ times this indebtedness has been created under the feverish spirit for development. State of the State, January 15, 1915

-Governor Robert Lee Williams of Oklahoma

“Like the genocide of the Armenians before it, and the genocide of the Cambodians which followed it, . . . the lessons of the Holocaust must never be forgotten.” April 22, 1981, proclamation

-George H.W. Bush

“As the men of the victorious British 14th Army advanced through Burma on the road to Mandalay in January 1945 they encountered Japanese savagery towards prisoners.

After a battle, the Berkshires found dead British soldiers beaten, stripped of their boots and suspended by electric flex upside down from trees. This sharpened the battalion’s sentiment against their enemy. Back in Britain it was beginning to emerge that such inhumanity was not confined to the battlefield.

Men who had escaped from Japanese captivity brought tales of brutality so extreme that politicians and officials censored them for fear of the Japanese imposing even more terrible sufferings upon tens of thousands of POWs who remained in their hands. The US government suppressed for months the first eyewitness accounts of the 1942 Bataan death march in the Philippines on which so many captured American GIs perished, and news of the beheadings of shot-down aircrews….

More than a quarter of Western POWs lost their lives in Japanese captivity. This represented deprivation and brutality of a kind familiar to Russian and Jewish prisoners of the Nazis in Europe, yet shocking to the American, British and Australian public.

It seemed incomprehensible that a nation with pretensions to civilisation could have defied every principle of humanity and the supposed rules of war…

Most modern Japanese do not accept the ill-treatment of subject peoples and prisoners by their forebears, even where supported by overwhelming evidence, and those who do acknowledge it incur the disdain or outright hostility of their fellow-countrymen for doing so. It is repugnant the way they still seek to excuse, and even to ennoble, the actions of their parents and grandparents, so many of whom forsook humanity in favour of a perversion of honour and an aggressive nationalism which should properly be recalled with shame. The Japanese nation is guilty of a collective rejection of historical fact. As long as such denial persists, it will remain impossible for the world to believe that Japan has come to terms with the horrors it inflicted.” Nemesis: The Battle For Japan 1944-45

-Max Hastings

“I will sacrifice upon the alter [sic] of my country.”

-A Sergeant from Georgia

“Popular suffrage is in itself no guarantee of freedom. People can vote themselves into slavery.”

-Frank Chodorov

“I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic….”

-Congressional Oath of Office

“Governments harangue about deficits to get more revenue so they can spend more.” 1993

-Allan H. Meltzer

“You have not converted a man because you have silenced him.”

-John Viscount Morley

“Cultivated mind is the guardian genius of democracy, and while guided and controlled by virtue the noblest attribute of man. It is the only dictator that freemen acknowledge, and the only security which freemen desire.”

-Mirabeau B. Lamar

“There are a few simple principles to be preserved. Bear in mind the dividing line between State rights and Federal authority; let us maintain the great principles of popular sovereignty, of State rights, and of the Federal Union as the Constitution has made it, and this Republic will endure forever.” Speech in Bloomington, Illinois, July 16, 1858

-Stephen Douglas

“Any man that tries to rob me of my dignity will lose.”

-Nelson Mandela

“The advancement and diffusion of knowledge is the only guardian of true liberty.”

-James Madison

“Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”

-Thomas Paine

“In the transition from Texas Rangers to citizens we should strive to render ourselves as useful in the one sphere as, I hope, we have been bold and efficient in the other. Ours has been a wild life. We have had the utmost latitude of conduct that could be allowed within the pale of law and propriety. Let us remember that we are about to return to the place of abode, where we shall mingle with relatives and friends, who have a right to circumscribe our actions within the bounds of civil life. We must not forget our responsibility to the laws and usages of society. A brave man generally makes a good, peaceable citizen. When the test is applied to us it is to be hoped that we will not be found wanting.” Farewell Address

-John Salmon Ford

“Liberty is not collective, it is personal. All liberty is individual liberty.”

-Calvin Coolidge, 30th US President

“Historically, statistics is no more than ‘State Arithmetic,’ a system by which differences between individuals are eliminated by the taking of an average. It has been used – indeed, still is used – to enable rulers to know just how far they may safely go in picking the pockets of their subjects.”

-M.J. Moroney

“The apathy of our people is most alarming. If they do not rouse themselves to a sense of our condition and put down this wretched government, the country is irretrievably ruined.”

-John Randolph

“So, as we set out this year to defeat the divisive forces that would take freedom away, I want to say those fighting words for everyone within the sound of my voice to hear and to heed, and especially for you, Mr. Professional Politician: ‘From my cold, dead hands!”

-Charlton Heston

“Damn you, if you will not follow me, I’ll die alone!”

-A. Powell Hill

“A patriot must always be prepared to protect his country from his government.”

-Edward Abbey

“The Federal Government has twisted almost every word in the Constitution for the purpose of increasing their power, limiting the voice of the people, and stomping on State’s Rights. They do it in the name of the Commerce Clause, or the General Welfare Clause, or misinterpretations of what the words in the Constitution really mean. All the while we sit around like a bunch of sheep with a big, stupid smile on our face, waiting in line to be sheered.”

-Curtis Patranella

“Give the American people a good cause, and there’s nothing they can’t lick.”

-Duke Morrison

“They fight not for the lust of conquest. They fight to end conquest. They fight to liberate.” D-Day radio broadcast, June 6, 1944

– President Franklin D. Roosevelt

“Unnecessary laws are not good laws, but traps for money.” Leviathan, 1651

-Thomas Hobbes

Jul 19th, 2015 Interesting Quotes in History

Texas Payday Law–Texas Labor Code Chapter 61

LABOR CODE

TITLE 2. PROTECTION OF LABORERS

SUBTITLE C. WAGES

CHAPTER 61. PAYMENT OF WAGES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 61.001. DEFINITIONS. In this chapter:

(1) “Commission” means the Texas Workforce Commission.

(2) “Day” means a calendar day.

(3) “Employee” means an individual who is employed by an employer for compensation. The term does not include:

(A) a person related to the employer or the employer’s spouse within the first or second degree by consanguinity or affinity, as determined under Chapter 573, Government Code; or

(B) an independent contractor.

(4) “Employer” means a person who:

(A) employs one or more employees; or

(B) acts directly or indirectly in the interests of an employer in relation to an employee.

(5) “Employment” means any service, including service in interstate commerce, that is performed for wages or under a contract of hire, whether written or oral or express or implied. The term does not include any service performed by an individual for wages if it is shown that the individual is free from control or direction in the performance of the service, both under any contract of service and in fact.

(6) “Mail” means to deposit for mailing with the United States Postal Service.

(7) “Wages” means compensation owed by an employer for:

(A) labor or services rendered by an employee, whether computed on a time, task, piece, commission, or other basis; and

(B) vacation pay, holiday pay, sick leave pay, parental leave pay, or severance pay owed to an employee under a written agreement with the employer or under a written policy of the employer.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(27), 9.12(a), eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 1, eff. September 1, 2005.

Sec. 61.002. COMMISSION DUTIES. (a) The commission shall:

(1) administer this chapter; and

(2) adopt rules as necessary to implement this chapter.

(b) The commission may require reports, conduct investigations, and take other action as it considers necessary to implement this chapter.

(c) In the discharge of the duties imposed by this chapter, any authorized representative or member of the commission may:

(1) administer an oath or affirmation;

(2) take a deposition;

(3) certify to an official act; and

(4) issue a subpoena to compel the attendance of a witness and the production of books, papers, correspondence, memoranda, and other records considered necessary as evidence in the administration of this chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.13(a), eff. Sept. 1, 1995.

Sec. 61.003. GOVERNMENTAL ENTITIES EXCLUDED. This chapter does not apply to the United States, this state, or a political subdivision of this state.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.004. PAYMENT OF CERTAIN FEES FOR SERVICE OF PROCESS. Notwithstanding Chapter 152 or 154, Local Government Code, or any other law of this state, the fees assessed by a sheriff or constable for service of a subpoena under Section 61.002 shall be paid by the commission out of the administrative funds of the commission, and the comptroller shall issue warrants for those fees as directed by the commission.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.13(b), eff. Sept. 1, 1995.

Sec. 61.005. EFFECT OF REFUSAL TO OBEY COMMISSION SUBPOENA; CRIMINAL PENALTY. (a) In the case of contumacy or other refusal by a person to obey a subpoena issued by the commission or an authorized representative of the commission to that person, any county or district court of this state in the jurisdiction of which the inquiry is carried on or in the jurisdiction of which the person guilty of contumacy or refusal to obey is found, resides, or transacts business has jurisdiction, on application by the commission or its representative, to issue to the person an order requiring the person to appear before the commission or its authorized representative to:

(1) produce evidence if so ordered; or

(2) testify regarding the matter under investigation or in question.

(b) The court may punish as contempt a failure to obey a court order issued under Subsection (a).

(1) attend and testify;

(2) answer any lawful inquiry; or

(3) produce books, papers, correspondence, memoranda, or other records.

(d) An offense under Subsection (c) is punishable by a fine of not less than $200, by confinement for not more than 60 days, or by both fine and confinement. Each day of violation constitutes a separate offense.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.13(b), eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 817, Sec. 10.11, eff. Sept. 1, 2003.

SUBCHAPTER B. PAYMENT OF WAGES

Sec. 61.011. PAYDAYS. (a) An employer shall pay wages to each employee who is exempt from the overtime pay provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) at least once a month.

(b) An employer shall pay wages to an employee other than an employee covered by Subsection (a) at least twice a month.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.012. DESIGNATION OF PAYDAYS; NOTICE. (a) An employer shall designate paydays in accordance with Section 61.011.

(b) If an employer fails to designate paydays, the employer’s paydays are the first and 15th day of each month.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.013. PAYMENT OTHER THAN ON PAYDAY. An employer shall pay an employee who is not paid on a payday for any reason, including the employee’s absence on a payday, on another regular business day on the employee’s request.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.014. PAYMENT AFTER TERMINATION OF EMPLOYMENT. (a) An employer shall pay in full an employee who is discharged from employment not later than the sixth day after the date the employee is discharged.

(b) An employer shall pay in full an employee who leaves employment other than by discharge not later than the next regularly scheduled payday.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.015. PAYMENT OF COMMISSIONS AND BONUSES. (a) Wages paid on commission and bonuses are due according to the terms of:

(1) an agreement between the employee and employer; or

(2) an applicable collective bargaining agreement.

(b) An employer shall pay wages paid on commission and bonuses to an employee in a timely manner as required for the payment of other wages under this chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.016. FORM OF PAYMENT. (a) An employer shall pay wages to an employee:

(1) in United States currency;

(2) by a written instrument issued by the employer that is negotiable on demand at full face value for United States currency; or

(3) by the electronic transfer of funds.

(b) An employee may agree in writing to receive part or all of the wages in kind or in another form.

(c) Payment by a written instrument that is not negotiable or for which payment is refused for any reason attributable to the employer does not constitute payment of wages for the purposes of this chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.017. DELIVERY OF PAYMENT. (a) An employer shall pay wages through a means authorized by this section.

(b) An employer may pay wages by:

(1) delivering them to the employee at the employee’s regular place of employment during regular employment hours;

(2) delivering them to the employee at a time and place agreed on by the employer and employee;

(3) sending them to the employee by registered mail, to be received by the employee not later than payday;

(4) delivering them in a manner similar to a manner specified by Subdivision (1), (2), or (3) to a person designated by the employee in writing; or

(5) delivering them to the employee by any reasonable means authorized by the employee in writing.

(c) An employer may elect to pay wages to an employee who maintains at a financial institution an account that qualifies for electronic funds transfer through a direct deposit plan that uses electronic funds transfer to deposit the wages in the employee’s account. An employer who desires to pay wages through a direct deposit plan shall:

(1) notify each affected employee in writing, at least 60 days before the date on which the direct deposit payroll system is scheduled to begin, that the employer is adopting a direct deposit payroll system; and

(2) obtain from the employee any information required by the financial institution in which the employee maintains the account that is necessary to implement the electronic funds transfer.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 316, Sec. 1, eff. June 18, 2003.

Sec. 61.018. DEDUCTION FROM WAGES. An employer may not withhold or divert any part of an employee’s wages unless the employer:

(1) is ordered to do so by a court of competent jurisdiction;

(2) is authorized to do so by state or federal law; or

(3) has written authorization from the employee to deduct part of the wages for a lawful purpose.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.019. FAILURE TO PAY WAGES; CRIMINAL PENALTY. (a) An employer commits an offense if:

(1) at the time of hiring an employee, the employer intends to avoid payment of wages owed to the employee; and

(2) the employer fails after demand to pay those wages.

(b) An employer commits an offense if the employer:

(1) intends to avoid payment of wages owed to an employee;

(2) intends to continue to employ the employee; and

(3) fails after demand to pay those wages.

(c) An employer commits a separate offense under Subsection (b) for each pay period during which the employee earns wages that the employer fails to pay.

(d) An offense under this section is a felony of the third degree.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1158, Sec. 1, eff. Sept. 1, 1997.

Sec. 61.020. FAILURE TO PAY WAGES; ATTORNEY GENERAL ACTION. The attorney general may seek injunctive relief in district court against an employer who repeatedly fails to pay wages as required by this chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

SUBCHAPTER C. SECURITY FOR WAGE PAYMENTS

Sec. 61.031. BOND. (a) The commission may require an employer to deposit a bond if:

(1) the employer is convicted of two violations of this chapter; or

(2) a final order of the commission against an employer for nonpayment of wages remains unsatisfied after the 10th day after the date on which the time to appeal from that final order has expired and an appeal is not pending.

(b) The bond must be:

(1) in an amount approved and considered by the commission as adequate under the circumstances;

(2) payable to the state;

(3) conditioned that the employer, for a period not to exceed 36 months, pay the employees in accordance with this chapter; and

(4) conditioned that the employer pay any sum recovered against the employer under this chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.032. SUIT TO ENFORCE BOND REQUIREMENT. (a) If an employer fails to deposit a bond required under Section 61.031 before the 11th day after the date on which demand is made for the bond, the attorney general may bring a suit in the name of the state against the employer to furnish the bond or to cease doing business until the employer furnishes the bond.

(b) If the court finds just cause for requiring the bond and that the bond is reasonably necessary and proper to secure prompt payment of the wages of the employees of the employer and the employer’s compliance with this chapter, the court may enjoin the employer from doing business until the requirement is met. The injunction may also apply to any other person concerned with or in any way participating in the failure to pay wages resulting in the conviction or in a final order of the commission. The court may make any other order appropriate and necessary to compel compliance with the requirement.

(c) In an action under this section, the employer has the burden of proving that the bond is unnecessary or that the amount demanded by the commission is excessive.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.033. FAILURE OF SURETY COMPANY TO PAY VERIFIED CLAIM FOR WAGES; CIVIL PENALTY. (a) A surety company that issues a bond to secure the payment of wages under this chapter and that wilfully fails to pay a verified claim for wages found to be due and payable is subject to a civil penalty in the amount of $1,000 for each failure to pay each employee.

(b) A subsequent violation is subject to a civil penalty in the amount of $1,000 for each failure to pay each employee plus 25 percent of the amount unlawfully withheld.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

SUBCHAPTER D. WAGE CLAIMS

This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 208, 84th Legislature, Regular Session, for amendments affecting this section.

Sec. 61.051. FILING WAGE CLAIM. (a) An employee who is not paid wages as prescribed by this chapter may file a wage claim with the commission in accordance with this subchapter.

(b) A wage claim must be filed in a manner and on a form prescribed by the commission and must be verified by the employee.

(c) A wage claim must be filed not later than the 180th day after the date the wages claimed became due for payment. The 180-day deadline is a matter of jurisdiction.

(d) The employee may file the wage claim:

(1) in person at an office of the commission;

(2) by mailing the claim to an address designated by the commission;

(3) by faxing the claim to a fax number designated by the commission; or

(4) by any other means adopted by the commission by rule.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 21 (S.B. 741), Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 97 (H.B. 762), Sec. 1, eff. September 1, 2009.

Sec. 61.052. PRELIMINARY WAGE DETERMINATION ORDER. (a) An examiner employed by the commission shall analyze each wage claim filed under Section 61.051 and, if the claim alleges facts actionable under this chapter, shall investigate the claim and issue a preliminary wage determination order:

(1) dismissing the wage claim; or

(2) ordering payment of wages determined to be due and unpaid.

(b) If a commission examiner imposes an administrative penalty under Section 61.053, the preliminary wage determination order must include an order for payment of the penalty.

(b-1) If a wage claim is filed later than the date described by Section 61.051(c), the examiner shall dismiss the wage claim for lack of jurisdiction.

(c) The commission examiner shall mail notice of the preliminary wage determination order to each party at that party’s last known address, as reflected by commission records.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 2, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 21 (S.B. 741), Sec. 2, eff. September 1, 2009.

Sec. 61.0525. ESTABLISHMENT OF WAGE CLAIM APPEAL TRIBUNALS. (a) The commission shall establish one or more impartial wage claim appeal tribunals to hear and decide disputed wage claims if the commission determines that establishment of those tribunals is necessary to ensure prompt disposal of wage claims cases on appeal.

(b) Each wage claim appeal tribunal shall be composed of a salaried examiner appointed by the commission.

Added by Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 3, eff. September 1, 2005.

Sec. 61.053. BAD FAITH; ADMINISTRATIVE PENALTY. (a) If the commission examiner, a wage claim appeal tribunal, or the commission determines that an employer acted in bad faith in not paying wages as required by this chapter, the examiner, tribunal, or commission, in addition to ordering the payment of the wages, may assess an administrative penalty against the employer.

(b) If the commission examiner, a wage claim appeal tribunal, or the commission determines an employee acted in bad faith in bringing a wage claim, the examiner, tribunal, or commission may assess an administrative penalty against the employee.

(1) the amount of the wages in question or claimed; or

(2) $1,000.

(d) In determining the amount of an administrative penalty assessed under this section, the commission examiner, a wage claim appeal tribunal, or the commission shall consider:

(1) the seriousness of the violation;

(2) the history of previous violations;

(3) the amount necessary to deter a future violation; and

(4) any other appropriate matter, including mitigating circumstances.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 4, eff. September 1, 2005.

Sec. 61.054. REQUEST FOR HEARING ON PRELIMINARY ORDER. (a) Either party may request a hearing before a wage claim appeal tribunal to appeal a preliminary wage determination order made under Section 61.052.

(b) The request for hearing must be made in writing not later than the 21st day after the date the commission examiner mails the notice of the preliminary wage determination order.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 5, eff. September 1, 2005.

Sec. 61.055. PRELIMINARY ORDER FINAL IF HEARING NOT REQUESTED. If neither party requests a hearing to appeal a preliminary wage determination order within the period prescribed by Section 61.054, the order becomes the final order of the commission for all purposes, and neither party is entitled to judicial review of the order under this subchapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 6, eff. September 1, 2005.

Sec. 61.056. PAYMENT REQUIRED IF HEARING NOT REQUESTED. (a) An employer that does not request a hearing within the period prescribed by Section 61.054 to appeal a preliminary wage determination order shall pay the amount ordered to the commission not later than the 21st day after the date the commission mails notice of the order. The payment must equal the net amount of outstanding wages after any valid deductions and must include an itemized list of those deductions.

(b) Payment to the commission constitutes payment to the employee for all purposes.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.14(a), eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 7, eff. September 1, 2005.

Sec. 61.057. NOTICE; TIME FOR HEARING. (a) A notice regarding an administrative hearing conducted under this subchapter must be mailed by the wage claim appeal tribunal not later than the 21st day after the date a request for the hearing is received by the commission.

(b) As soon as practicable, but not later than the 45th day after the date a notice is mailed under Subsection (a), the tribunal shall conduct the hearing.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 8, eff. September 1, 2005.

Sec. 61.058. HEARING PROCEDURES. (a) A hearing conducted under this subchapter is subject to the rules and hearings procedures used by the commission in the determination of a claim for unemployment compensation benefits.

(b) The hearing is not subject to Chapter 2001, Government Code.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995.

Sec. 61.059. CONSIDERATION OF PRELIMINARY WAGE DETERMINATION ORDER. The wage claim appeal tribunal may modify, affirm, or rescind a preliminary wage determination order.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 9, eff. September 1, 2005.

Sec. 61.060. ORDER AFTER HEARING. After a hearing, the wage claim appeal tribunal shall enter a written order for the payment of wages that the tribunal determines to be due or for the payment of any penalty the tribunal assesses.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 10, eff. September 1, 2005.

Sec. 61.061. NOTICE AND FINALITY OF ORDER. (a) The wage claim appeal tribunal shall mail to each party to the appeal notice of:

(1) the decision;

(2) the amount of wages subject to the order; and

(3) the amount of any penalty assessed.

(4) Expired.

(b) The notice shall be mailed to a party’s last known address, as shown by commission records.

(c) The order of the wage claim appeal tribunal becomes final 14 days after the date on which it is mailed unless a further appeal to the commission is initiated as provided by this subchapter.

(1) Expired.

(2) Expired.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 11, eff. September 1, 2005.

Sec. 61.0611. REMOVAL OR TRANSFER OF CLAIM PENDING BEFORE WAGE CLAIM APPEAL TRIBUNAL. (a) The commission by order may remove to itself or transfer to another wage claim appeal tribunal the proceedings on a wage claim pending before a wage claim appeal tribunal.

(b) The commission promptly shall mail to the parties to the affected wage claim a notice of the order under Subsection (a).

Added by Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 12, eff. September 1, 2005.

Sec. 61.0612. COMMISSION REVIEW OF WAGE CLAIM APPEAL TRIBUNAL ORDER. The commission may:

(1) on its own motion:

(A) affirm, modify, or set aside an order issued under Section 61.061 on the basis of the evidence previously submitted in the case; or

(B) direct the taking of additional evidence; or

(2) permit any of the parties affected by the order to initiate a further appeal before the commission.

Added by Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 12, eff. September 1, 2005.

Sec. 61.0613. NOTICE OF COMMISSION ACTION. (a) The commission shall mail to each party to the appeal under Section 61.0612 notice of:

(1) the commission’s decision;

(2) the amount of wages subject to the order;

(3) the amount of any penalty assessed; and

(4) the parties’ right to judicial review of the order.

(b) The notice shall be mailed to a party’s last known address, as shown by commission records.

Added by Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 12, eff. September 1, 2005.

Sec. 61.0614. FINALITY OF COMMISSION ORDER. An order of the commission becomes final 14 days after the date the order is mailed unless before that date:

(1) the commission by order reopens the appeal; or

(2) a party to the appeal files a written motion for rehearing.

Added by Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 12, eff. September 1, 2005.

Sec. 61.062. JUDICIAL REVIEW. (a) A party who has exhausted the party’s administrative remedies under this chapter, other than a motion for rehearing, may bring a suit to appeal the order.

(b) The suit must be filed not later than the 30th day after the date the final order is mailed.

(d) The suit must be brought in the county of the claimant’s residence. If the claimant is not a resident of this state, the suit must be brought in the county in this state in which the employer has its principal place of business.

(e) An appeal under this subchapter is by trial de novo with the substantial evidence rule being the standard of review in the manner as applied to an appeal from a final decision under Subtitle A, Title 4.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.14(b), eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 378 (S.B. 1408), Sec. 13, eff. September 1, 2005.

Sec. 61.063. PAYMENT TO COMMISSION; ESCROW PENDING REVIEW; WAIVER. (a) Not later than the 30th day after the date a commission order becomes final, the party required to pay wages or a penalty shall:

(1) pay the amount to the commission; or

(2) if the party files a petition for judicial review in a court of competent jurisdiction contesting the final order, send the amount to the commission for deposit in an interest-bearing escrow account.

(b) Unless the party files an affidavit of inability to pay with the clerk of the court within the period specified in Subsection (a), failure to send the amount within that period constitutes a waiver of the right to judicial review.

(c) If after judicial review it is determined that some or all of the wages are not owed or the penalty is reduced or is not assessed, the commission shall remit the appropriate amount to the party assessed the wage payment or penalty, plus the interest accrued on the escrowed amount. Interest under this section shall be paid for the period beginning on the date the assessed amount is paid to the commission and ending on the date the amount is remitted to the party.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.14(c), eff. Sept. 1, 1995.

Sec. 61.064. PAYMENT TO EMPLOYEE. Not later than the 30th day after the date on which a claim is finally adjudicated or otherwise resolved, the commission shall pay to the claimant wages collected under this subchapter and any interest earned on those wages.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.065. DEPOSIT OF PENALTY. The commission shall deposit a penalty collected under this subchapter in the unemployment compensation special administration fund established under Subchapter E, Chapter 203.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.066. COMMISSION ACTION; ENFORCEMENT OF ORDER. (a) The commission, in the name of the state and the attorney general, may:

(1) bring a suit in a district court in Travis County to enforce a final order from which an appeal under this chapter has not been taken; or

(2) serve on the defaulting party a notice of assessment stating the amount due.

(b) A notice of assessment served under this section is prima facie evidence of the contents of the notice. However, the defaulting party may show the incorrectness of the notice of assessment.

(c) The notice shall be served in the manner provided by law for service of process on a defendant in a civil action in district court.

(d) A person aggrieved by the determination of the commission as stated in the notice of assessment may seek judicial review of the assessment by filing a petition for judicial review in a Travis County district court not later than the 30th day after the date on which the notice of assessment is served. A copy of the petition shall be served in the manner prescribed by law for service of process on a defendant in a civil action in district court on:

(1) a member of the commission; or

(2) a person designated by the commission for service of process.

(e) If the party on whom a notice of assessment is served does not seek judicial review as provided by this section, the assessment is final for all purposes. An assessment that is not contested or that is upheld after judicial review shall be recorded, enforced, renewed, and otherwise treated as the final judgment of a district court.

(f) Unless the adverse party prevails in the civil action or the notice of assessment is reversed by a reviewing court, the adverse party shall pay all costs of either action, including attorney’s fees, investigation costs, service costs, court costs, and other applicable costs.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.14(d), eff. Sept. 1, 1995.

Sec. 61.067. RECIPROCAL COLLECTION ARRANGEMENTS. The commission may enter into reciprocal arrangements with appropriate authorized agencies of the United States or other states for the collection of wage claims that are final under the laws of the jurisdictions in which they were filed.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.15(a), eff. Sept. 1, 1995.

SUBCHAPTER E. ADMINISTRATIVE LIEN

Sec. 61.081. CREATION AND ATTACHMENT OF LIEN. (a) A final order of the commission against an employer indebted to the state for penalties or wages, unless timely appealed to a court, is a lien on all the property belonging to the employer.

(b) The lien for an unpaid debt attaches at the time the order of the commission becomes final.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.082. ENFORCEMENT OF LIEN. (a) Subchapters A and B, Chapter 113, Tax Code, govern the enforcement of a lien established under this subchapter.

(b) In administering and enforcing the lien, the commission has the duties imposed and the powers conferred on the comptroller for the enforcement of other liens under Subchapters A and B, Chapter 113, Tax Code.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.0825. PRIORITY OF LIEN. A lien established under this subchapter is superior to any other lien on the same property, with the exception of a lien for ad valorem taxes.

Added by Acts 2001, 77th Leg., ch. 641, Sec. 1, eff. Sept. 1, 2001.

Sec. 61.083. FILING; FEE. (a) A lien under this subchapter may be recorded in the book entitled “State Tax Liens” kept by the county clerk as provided by Section 113.004, Tax Code.

(b) The commission shall pay the county clerk of the county in which a notice of the lien has been filed the usual fee for filing and recording similar instruments. The fee shall be paid by warrant drawn by the comptroller. The fee is an amount due to the commission from the employer.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.084. RELEASE OF LIEN. (a) A lien under this subchapter may be released in the manner provided by Subchapter A, Chapter 113, Tax Code, for a state tax lien.

(b) If the liability secured by the lien is fully paid, the commission shall mail a release of lien to the employer.

(c) The employer is responsible for filing a release of lien with the appropriate county clerk and paying the county clerk’s fee for recording the release.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 61.085. ASSIGNMENT OF LIEN. A lien securing wages due under this chapter may be assigned to the claimant, at the claimant’s request.

Added by Acts 1995, 74th Leg., ch. 761, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER F. DELINQUENCY; LEVY

Sec. 61.091. NOTICE OF DELINQUENCY. (a) If, under a final order, a person is determined to be delinquent in the payment of wages, penalties, interest, or other amounts due under this chapter, the commission may notify personally or by mail any person who:

(1) possesses or controls any of the delinquent person’s assets, including a credit, bank, or savings account or deposit, or other intangible or personal property; or

(2) owes a debt to the delinquent person.

(b) A notice under this subchapter to a state officer, department, or agency must be provided before the officer, department, or agency presents to the comptroller the claim of the delinquent person.

(c) A notice under this subchapter may be given at any time after the wages, penalties, interest, or other amounts due under this chapter become delinquent. The notice must state the amount of wages, penalties, interest, or other amounts due and owing and any additional amount that will accrue by operation of law in a period not to exceed 30 days and, in the case of a credit, bank, or savings account or deposit, is effective only up to that amount.

Added by Acts 1995, 74th Leg., ch. 761, Sec. 2, eff. Sept. 1, 1995.

Sec. 61.092. DUTIES OF NOTICE RECIPIENT. (a) On receipt of a notice under this subchapter, the person receiving the notice:

(1) shall advise the commission not later than the 20th day after the date on which the notice is received of each asset belonging to the delinquent person that is possessed or controlled by the person receiving the notice and of each debt owed by the person receiving the notice to the delinquent person; and

(2) unless the commission consents to an earlier disposition, may not transfer or dispose of the asset or debt possessed, controlled, or owed by the person on the date the person received the notice within the 60-day period after the date of receipt of the notice.

(b) A notice under this subchapter that attempts to prohibit the transfer or disposition of an asset possessed or controlled by a bank is effective if it is delivered or mailed to the principal office or any branch office of the bank, including any office of the bank at which the deposit is carried or the credit or property is held.

(c) A person who receives a notice under this subchapter and who violates Subsection (a)(2) is liable to the commission for the amount of the indebtedness of the delinquent person with respect to whose obligation the notice was given, to the extent of the value of the affected asset or debt.

Added by Acts 1995, 74th Leg., ch. 761, Sec. 2, eff. Sept. 1, 1995.

Sec. 61.093. LEVY. (a) At any time during the 60-day period provided by Section 61.092(a)(2), the commission may levy on the asset or debt by delivery of a notice of levy.

(b) On receipt of the levy notice, the person possessing the asset or debt shall transfer the asset to the commission or pay to the commission the amount owed to the delinquent person.

Added by Acts 1995, 74th Leg., ch. 761, Sec. 2, eff. Sept. 1, 1995.

Sec. 61.094. NOTICE EFFECT. A notice delivered under this subchapter is effective:

(1) at the time of delivery against all property, rights to property, credits, or debts involving the delinquent person that are not on the date of the notice subject to a preexisting lien, attachment, garnishment, or execution issued through a judicial process; and

(2) against all property, rights to property, credits, or debts involving the delinquent person that come into the possession or control of the person served with a notice of levy during the 60-day period provided by Section 61.092(a)(2).

Added by Acts 1995, 74th Leg., ch. 761, Sec. 2, eff. Sept. 1, 1995.

Sec. 61.095. DISCHARGE OF LIABILITY. A person acting in accordance with the terms of the notice issued by the commission under this subchapter is discharged from any obligation or liability to the delinquent person with respect to the affected property, rights to property, credits, and debts of the person affected by compliance with the notice of freeze or levy.

Jul 19th, 2015 Employment Law Defense

Small Employer Health Insurance Under Texas Law–Texas Department of Insurance

(January 2015)

Small employers don’t have to offer health insurance to their employees, but employers that do must make it equally available to all employees working 30 hours or more per week (not on a temporary or seasonal basis) and their dependents.

Texas insurance law definefs a small employer as a business with two to 50 employees, regardless of how much they work.

In general, insurance companies require at least 75 percent of a small employer’s eligible employees to participate in the health plan. (An eligible employee is a full-time employee who usually works at least 30 hours a week.) Companies must always round down to the nearest whole number when calculating the number of participating eligible employees. For example, a business with five employees would achieve 75 percent participation if three eligible employees participate. Seventy-five percent of five is 3.75, and 3.75 rounded down is three.

Insurance companies that offer small-employer coverage must make it available to any employer who applies year round. However, if the employer doesn’t meet the minimum participation requirements, availability may be limited to the federal open enrollment period running from November 15 through December 15 of each year.

Types of Plans

The Affordable Care Act requires all individual and small-employer group plans to cover a standardized package of services. These services are known as essential health benefits.
The essential health benefits include the following items and services:
ambulatory patient services (outpatient care you get without being admitted to a hospital)

emergency services
hospitalization (including surgery)
maternity and newborn care
mental health and substance use disorder services, including behavioral health treatment (including counseling and psychotherapy)
prescription drugs
rehabilitative and habilitative services and devices (services and devices to help people with injuries, disabilities, or chronic conditions gain or recover mental and physical skills)
laboratory services
preventive and wellness services and chronic disease management pediatric services, including oral and vision care.

The essential health benefits are based on a typical plan bought by small employers in Texas. This means that all of the benefits requirements for small-employer plans under Texas law were adopted as part of the federal essential health benefits standard. Learn more about what Texas law requires atwww.tdi.texas.gov/hmo/hmmanben.html.

Grandfathered plans (those that an employer bought before March 23, 2010) aren’t required to contain the essential health benefits, but they do need to comply with Texas laws. Also, some types of insurance, such as indemnity policies, aren’t subject to the ACA and don’t count as minimum essential coverage for tax purposes.

Providing Coverage

Employers must give new employees at least 31 days from their start date to enroll in a health plan. After this time, employees may be required to wait up to one year for the next open enrollment period to join. Insurance companies must offer a 31-day open enrollment period annually.

Employers may require newly eligible employees to wait up to 90 days before being eligible for benefits. However, the insurance company may not charge a premium during this period.

Beginning in January 2014, insurance companies won’t be able to impose coverage limits, exclusions, or waiting periods for employees with preexisting conditions who had a gap in coverage.

Continuing Coverage

State regulations and a federal law called COBRA (Consolidated Omnibus Budget Reconciliation Act) allow employees to maintain benefits for a time after leaving a job. COBRA doesn’t apply to all small employers, but state continuation requirements do. Employers are required to tell employees about their rights to continue coverage. Former employees who choose to continue their coverage through COBRA or state continuation must pay the full cost of the plan. Employers aren’t required to contribute toward their premiums for former employees, even if they previously paid a share. Ask your carrier about your responsibilities regarding continuation notices.

Paying for Coverage

The law doesn’t require employers to contribute toward health benefit plan premiums. Many insurance companies, however, require employers to pay at least 50 percent of their employees’ plan premiums. Employers may choose to pay a higher percentage than the company requires.

Employers are usually not required to contribute toward the cost of dependent coverage.
Premiums may increase at each renewal term because of rising health care costs. However, Texas law caps small-employer rate increases due to health factors – such as the amount of employee claims experience – at 15 percent per year. State law also protects businesses who buy small-employer health insurance by prohibiting insurance companies from discontinuing coverage without a reason.

Businesses with 25 or fewer full-time equivalent employees that pay at least 50 percent of premiums and pay average annual wages below $50,000 may be eligible for a tax credit of up to 50 percent (35 percent for nonprofits) of the premiums the business pays if it buys coverage through the federal small-business health options program, called the Small Business Health Options Program (SHOP). For more information, visit www.healthcare.gov/small-businesses/provide-shop-coverage/.

How Insurers Calculate Small-Employer Plan Premiums

Insurance companies base the amount employers pay for insurance on the specific benefits package and cost-sharing levels chosen by the employer. The health status of employees won’t impact rates. Insurance companies will consider the following factors:

Age of employees. Older people usually have more expensive and more frequent health-related claims. Generally, the older your workforce, the more your plan will cost. However, federal law prevents insurers from charging more than three times more for older employees than they charge for younger employees.
Tobacco use. Federal law allows health plans to charge tobacco users up to 50 percent more. Texas law requires that rating factors related to health status be spread across the employer group. A group with more tobacco users will pay higher rates than a group with fewer tobacco users.
Geographic area. Health care costs vary by region because of differences in the cost of living and the number of providers in the area. Most plans use either the county or ZIP code of the employer’s business address to base rates.

Affordable Care Act Requirements

Small businesses with fewer than 50 full-time plus full-time equivalent employees won’t face a penalty if they don’t provide health insurance to their employees.

Federal law defines a full-time employee as one who works at least 30 hours during a typical week. The law counts each 120 hours worked by part-time employees in a month as one full-time equivalent employee.

Consider a company that employs 30 full-time employees who work at least 120 hours each per month and 24 part-time workers who average 80 hours each per month.

To convert the part-time employees’ hours to full-time equivalent employees, multiply the number of part-time workers by the average number of hours they work each month: 24 x 80 = 1,920. Then divide the total number of hours worked by 120: 1,920/120 = 16. To get the total number of full-time equivalent employees, add this number to the number of full-time employees: 30 + 16 = 46. Thus, the employer in this example has 46 full-time equivalent employees and qualifies as a small employer under the law.

For more information, visit HealthCare.gov or call 1-800-318-2596.

Buying Coverage Through the Insurance Marketplace

The federal government will operate the insurance marketplace in Texas.

Businesses with 50 or fewer full-time plus full-time equivalent employees may buy coverage through the SHOP. In 2016, employers with up to 100 full-time and full-time equivalent employees will be able to buy SHOP coverage. An employer that has SHOP coverage and hires more employees than the threshold will be able to continue coverage through SHOP.

For more information about the insurance marketplace, visit HealthCare.gov or call 1-800-706-7893

Shopping for Coverage

Because premiums, deductibles, copayments, and coinsurance levels can vary from plan to plan, it pays to shop around. The following tips can help you find the best value for your money:

Understand coverages when comparing plans and rates. Plans with higher deductibles, copayments, and employee share of coinsurance generally will have lower premiums. Keep in mind that your employees will also have to pay more out of pocket when they access services or benefits.
Consider factors other than cost, such as a company’s financial strength and complaint record. You can learn a company’s financial rating, as determined by an independent rating organization, and complaint record by calling the Texas Department of Insurance Consumer Help Line at 1-800-252-3439 or by visiting our website at www.tdi.texas.gov.
Buy only from licensed insurance companies and HMOs. Selling unlicensed coverage is illegal in Texas. If you buy from an unlicensed company, your employees’ claims could go unpaid and you could be held liable for the full amount of your employees’ claims and losses. You can learn whether a company is licensed by calling the Consumer Help Line or by viewing the company profiles on our website.
Understand that employee health coverage is different from workers’ compensation insurance, which covers only job-related injuries and illnesses. Although workers’ compensation insurance is not required in Texas, it protects an employer from high damage awards in the case of workplace accidents. Providing regular health coverage to employees isn’t a legal alternative to providing workers’ compensation insurance. Read TDI’s Workers’ Compensation Insurance publication for more information.

For More Information or Assistance

For answers to general insurance questions, for information about filing an insurance-related complaint, or to report suspected insurance fraud, call the Consumer Help Line at 1-800-252-3439 between 8 a.m. and 5 p.m., Central time, Monday-Friday, or visit our website at www.tdi.texas.gov.

You can also visit HelpInsure.com to help you shop for automobile, homeowners, condo, and renters insurance, and TexasHealthOptions.com to learn more about health care coverage and your options.

For printed copies of consumer publications, call the Consumer Help Line.

To report suspected arson or suspicious activity involving fires, call the State Fire Marshal’s 24-hourArson Hotline at 1-877-4FIRE45 (434-7345).

The information in this publication is current as of the revision date. Changes in laws and agency administrative rules made after the revision date may affect the content. View current information on our website. TDI distributes this publication for educational purposes only. This publication is not an endorsement by TDI of any service, product, or company.

For more information contact: ConsumerProtection@tdi.texas.gov or 1-800-252-3439

Jul 19th, 2015 Contracts and Commercial Litigation, Insurance Defense Litigation

Colleyville, Texas Insurance Fraud and Murder Case Update

A housekeeper who was found dead in September of last year was killed as part of a seven-figure life insurance scam. Anita Fox, 72, was found murdered in the entryway of a home she was cleaning in Colleyville, Texas. Colleyville police said that Gerard Gorman, 48, and his son Bernard, 27, were named suspects in the “complex” scam. Police believe someone took out a fraudulent seven-figure life insurance policy on her, which she was not aware of. They believe the Gormans killed her because of it, trying to cash in on the money. Gerard Gorman was found dead of natural causes near Houston last month. Bernard Gorman was arrested by police in Florida and has been charged with Fox’s murder. It is unknown whether the insurance agent who sold the policy will be implicated. The FBI and the Fraud Unit are investigating whether more people are involved and if there is a larger insurance fraud scheme. Read the Star-Telegram story about the fraud scheme.

Jul 19th, 2015 Contracts and Commercial Litigation, Insurance Defense Litigation

Owner of Fictitious Title Company Gets 55 Years in Texas Insurance Fraud Case

The Texas Department of Insurance (TDI) Fraud Unit, along with the Harris County District Attorney’s office, investigated Telly J. Smith and his fictitious online title company named “Exodus Title Company,” which was not associated in any way with the legitimate, TDI licensed title company Exodus Title, LLC of Houston. Smith forged property deeds to steal the ownership of four properties and then stole money from lending institutions by securing over $3 million in mortgages on the stolen properties.

The 14-month investigation required the review of detailed financial records, real property and title records. The thoroughness of the investigation resulted in the suspect pleading guilty in the 230th District Court of Harris County. After pleading guilty, the suspect, Telly J. Smith, requested a hearing before the judge for sentencing. After reviewing the evidence of the investigation, the Honorable Judge Brad Hart sentenced Smith to 55 years confinement in the Institutional Division of the Texas Department of Criminal Justice, assessed a fine of $10,000, and ordered Smith to pay $1.7 million in restitution.

Jul 19th, 2015 Contracts and Commercial Litigation, Insurance Defense Litigation