Texas Non-Subscriber Workplace Injury Law: Labor Code § 406.033 & Defenses Stripped

Overview of Texas Law & Liability Framework

Texas is the ONLY state in the United States where private employers may legally opt out of the state workers' compensation system (Tex. Lab. Code § 406.002). However, as the quid pro quo for opting out, a Texas 'non-subscriber' employer is stripped of nearly all common-law defenses under Texas Labor Code § 406.033.

Key Texas Statutory Rules & Liability Standards

• No Comparative Fault Reduction (1% Employer Negligence = 100% Liability): Under Tex. Lab. Code § 406.033(a)(1) and the Texas Supreme Court's landmark decision in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), a non-subscribing Texas employer CANNOT assert the employee's contributory negligence or comparative responsibility under CPRC Chapter 33! If the employer's negligence was even 1% a proximate cause of the injury (and the employee was 99% negligent), the employer owes 100% of the damages.
• Assumption of Risk & Fellow-Servant Defenses Abolished: Section 406.033(a)(2)–(3) also strips non-subscribers of the defenses that the employee assumed the risk of injury or that the injury was caused by the negligence of a fellow employee.
• Only Three Narrow Defenses Remain (§ 406.033(c)): A Texas non-subscriber can defend only by proving: (1) the employer was 0% negligent (including the 'sole proximate cause' defense); (2) the injury was caused by an intentional act of the employee to bring about the injury; or (3) the employee was intoxicated at the time of injury.
• Pre-Injury Waivers Are Void (§ 406.033(e)), Though Post-Injury Waivers Have Strict Rules (§ 406.033(f)–(g)): Any pre-injury waiver of the employee's right to sue a non-subscriber is void under § 406.033(e). Even a post-injury waiver is void unless signed at least 10 business days after the medical report and after the employee received a statutory written disclosure in 14-point bold font. Note, however, that non-subscribers frequently include mandatory FAA arbitration provisions inside their ERISA Occupational Injury Benefit Plans.

Texas Court Procedure, Crash Reporting & Evidentiary Deadlines

Verify whether an employer is a subscriber or non-subscriber via the Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) TXCOMP online coverage verification portal and DWC Form-005 filings.

Compensatory & Exemplary Damages Available Under Texas Law

Unlike Texas Workers' Comp (which pays zero pain and suffering), a non-subscriber lawsuit allows 100% recovery of full tort damages: paid/incurred medical bills (§ 41.0105), 100% of net lost wages and future earning capacity (§ 18.091), physical pain, mental anguish, physical impairment, and disfigurement.