Sec. 406.033. COMMON-LAW DEFENSES; BURDEN OF PROOF. (a) In an action against an employer by or on behalf of an employee who is not covered by workers' compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).
(c) The employer may defend the action on the ground that the injury was caused:
(1) by an act of the employee intended to bring about the injury; or
(2) while the employee was in a state of intoxication.
(d) In an action described by Subsection (a), the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.
(e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable.
(f) A cause of action described by Subsection (a) may not be waived by an employee after the employee's injury unless:
(1) the employee voluntarily enters into the waiver with knowledge of the waiver's effect;
(2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;
(3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and
(4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.
(g) The waiver provisions required under Subsection (f) must be conspicuous and appear on the face of the agreement. To be conspicuous, the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1456, Sec. 16.01, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.031, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 1108 (S.B. 1714), Sec. 1, eff. September 1, 2011.
Notes of Decisions
Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000).
· cites it 6× “Because Texas Labor Code § 406.033 precludes a finding of contributory negligence, which is a prerequisite to determining the parties’ comparative responsibility, we hold that a non-subscribing employer is not entitled to a jury question on its employee’s alleged comparative…”
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012).
· cites it 3× “See Tex. Lab.Code § 406.033. West Oaks’ status as a nonsubscriber to workers’ compensation is uncontroverted, and therefore, Williams’ claims against his employer are not barred by the Texas Workers’ Compensation Act.”
In Re Border Steel, Inc., 229 S.W.3d 825 (Tex. App.—El Paso 2007).
· cites it 6× “Tex. Lab.Code Ann. § 406.033(a). 9 . Subsection (e) provides: (e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death.”
In Re H.E. Butt Grocery Co., 17 S.W.3d 360 (Tex. App.—Houston [14th Dist.] 2000).
· cites it 5× “See Tex. Lab.Code Ann. § 406.033 (Vernon 1996).”
In Re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex. 2009).
· cites it 2× “The beneficiaries argued they were not bound by Dancy’s arbitration agreement for two reasons: (1) they were not signatories to the agreement, and (2) the entire agreement was void because the indemnity clause was a pre-injury waiver in violation of Texas Labor Code section 406.”
In Re R & R Pers. Specialists of Tyler, Inc., 146 S.W.3d 699 (Tex. App.—Tyler 2004).
· cites it 5× “Conclusion The FAA preempts the nonwaiver provision of Texas Labor Code section 406.033 and any public policy underlying the Texas workers’ compensation statutes that is contrary to the enforceability of arbitration agreements.”
In Re Poly-Am., L.P., 262 S.W.3d 337 (Tex. 2008).
· cites it 2× “[3] The Society for Human Resource Management Texas State Council submitted an amicus brief supporting Poly-America's arguments, arguing that the court of appeals wrongfully failed to compare Luna's alleged costs with the prospective cost of litigation. The Texas Trial Lawyers…”
The Kroger Co. v. Keng, 976 S.W.2d 882 (Tex. App.—Tyler 1998).
· cites it 9× “Tex.Lab.Code Ann. § 406.033 (Vernon Supp.”
Tex. Lab. Code § 406.033(a): 53 cases
In Re R & R Pers. Specialists of Tyler, Inc., 146 S.W.3d 699 (Tex. App.—Tyler 2004).
“Conclusion The FAA preempts the nonwaiver provision of Texas Labor Code section 406.033 and any public policy underlying the Texas workers’ compensation statutes that is contrary to the enforceability of arbitration agreements.”
Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000).
“Because Texas Labor Code § 406.033 precludes a finding of contributory negligence, which is a prerequisite to determining the parties’ comparative responsibility, we hold that a non-subscribing employer is not entitled to a jury question on its employee’s alleged comparative…”
Tex. Lab. Code § 406.033(a)(1): 4 cases
Tex. Lab. Code § 406.033(a)(3): 1 case
Tex. Lab. Code § 406.033(b): 2 cases
Tex. Lab. Code § 406.033(c): 1 case
Tex. Lab. Code § 406.033(c)(1): 2 cases
Tex. Lab. Code § 406.033(c)(2): 2 cases
Tex. Lab. Code § 406.033(d): 22 cases
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012).
“See Tex. Lab.Code § 406.033. West Oaks’ status as a nonsubscriber to workers’ compensation is uncontroverted, and therefore, Williams’ claims against his employer are not barred by the Texas Workers’ Compensation Act.”
Tex. Lab. Code § 406.033(e): 34 cases
In Re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex. 2009).
“The beneficiaries argued they were not bound by Dancy’s arbitration agreement for two reasons: (1) they were not signatories to the agreement, and (2) the entire agreement was void because the indemnity clause was a pre-injury waiver in violation of Texas Labor Code section 406.”
In Re Border Steel, Inc., 229 S.W.3d 825 (Tex. App.—El Paso 2007).
“Tex. Lab.Code Ann. § 406.033(a). 9 . Subsection (e) provides: (e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death.”
In Re Poly-Am., L.P., 262 S.W.3d 337 (Tex. 2008).
“[3] The Society for Human Resource Management Texas State Council submitted an amicus brief supporting Poly-America's arguments, arguing that the court of appeals wrongfully failed to compare Luna's alleged costs with the prospective cost of litigation. The Texas Trial Lawyers…”
Tex. Lab. Code § 406.033(f): 2 cases
Tex. Lab. Code § 406.033(f)(1): 1 case
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