Tex. Codes » Labor Code · TITLE 5. WORKERS' COMPENSATION · SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT · CHAPTER 406. WORKERS' COMPENSATION INSURANCE COVERAGE
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Tex. Lab. Code § 406.034 (2026)

Employee Election

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Sec. 406.034. EMPLOYEE ELECTION. (a) Except as otherwise provided by law, unless the employee gives notice as provided by Subsection (b), an employee of an employer waives the employee's right of action at common law or under a statute of this state to recover damages for personal injuries or death sustained in the course and scope of the employment.

(b) An employee who desires to retain the common-law right of action to recover damages for personal injuries or death shall notify the employer in writing that the employee waives coverage under this subtitle and retains all rights of action under common law. The employee must notify the employer not later than the fifth day after the date on which the employee:

(1) begins the employment; or

(2) receives written notice from the employer that the employer has obtained workers' compensation insurance coverage if the employer is not a covered employer at the time of the employment but later obtains the coverage.

(c) An employer may not require an employee to retain common-law rights under this section as a condition of employment.

(d) An employee who elects to retain the right of action or a legal beneficiary of that employee may bring a cause of action for damages for injuries sustained in the course and scope of the employment under common law or under a statute of this state. Notwithstanding Section 406.033, the cause of action is subject to all defenses available under common law and the statutes of this state unless the employee has waived coverage in connection with an agreement with the employer.

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

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1108 (S.B. 1714), Sec. 2, eff. September 1, 2011.

Notes of Decisions
Cited in 43 cases (7 in the last 5 years), 1995–2025 · leading case: Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009).
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Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009). · cites it 4× “TEX. LAB.CODE § 406.034. It also overlooks the quid pro quo, being the relinquishment of uncertain common law recovery in exchange for the prompt receipt of defined benefits, that has insulated the Act from constitutional challenge under the Open Courts provision of the Texas…”
Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190 (Tex. 2007). · cites it 4× “See TEX. LAB. CODE § 406.034; Tex. Workers' Comp.”
Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010). · cites it 2× “[65] TEX. LAB.CODE §§ 406.034(a), 408.001(a). [66] See Cash Am.”
Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995). · cites it 2× “Tex.Lab.Code § 406.034. To do so, the employee must notify the employer within five days after beginning employment that the employee desires to retain his or her common law rights.”
Vasquez v. Dillard's, Inc., 2016 OK 89, 381 P.3d 768. · cites it 2× “(citing Tex. Lab. Code § 406.034(b)). 9 Id. (citing Tex.”
Willoughby v. United States ex rel. United States Dep't of the Army, 730 F.3d 476 (5th Cir. 2013). · cites it 2× “Employees are permitted to opt out of workers’ compensation coverage and to retain their common-law rights of action to recover damages for personal injuries against the employer, albeit on a fault basis.”
Frias v. Atl. Richfield Co., 999 S.W.2d 97 (Tex. App.—Houston [14th Dist.] 1999). · cites it 3× “See Tex. Labor Code Ann. § 406.034 (a) (Vernon 1996).”
Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238 (Tex. 2012). “Tex. Lab.Code § 406.034; Lawrence, 44 S.W.”
Aguirre v. Vasquez, 225 S.W.3d 744 (Tex. App.—Houston [14th Dist.] 2007). “Tex. Lab.Code § 406.034(a). An employee who desires to retain the common-law right of action to recover damages shall notify the employer in writing that the employee waives coverage no later than the fifth day after the employee begins employment, or after the employee receives…”
Urdiales v. Concord Tech. Delaware, Inc., 120 S.W.3d 400 (Tex. App.—Houston [14th Dist.] 2003). “See Tex. Lab.Code Ann. § 406.034 (an employee who desires to retain common-law right of action against employer must notify employer within five days of employment or within five days of receiving notice that employer has obtained workers’ compensation *406 coverage); id.”
Univ. of Houston-Clear Lake v. Marsh, 981 S.W.2d 912 (Tex. App.—Houston [1st Dist.] 1998). “Tex. Lab.Code § 406.034 (emphasis added).”
Nichols v. Pabtex, Inc., 151 F. Supp. 2d 772 (E.D. Tex. 2001). “See Tex.Lab. Code Ann. § 406.034 (Vernon 1995).”
Show all 43 citing cases →
Tex. Lab. Code § 406.034(a): 10 cases
Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010). “[65] TEX. LAB.CODE §§ 406.034(a), 408.001(a). [66] See Cash Am.”
Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190 (Tex. 2007). “See TEX. LAB. CODE § 406.034; Tex. Workers' Comp.”
Willoughby v. United States ex rel. United States Dep't of the Army, 730 F.3d 476 (5th Cir. 2013). “Employees are permitted to opt out of workers’ compensation coverage and to retain their common-law rights of action to recover damages for personal injuries against the employer, albeit on a fault basis.”
Aguirre v. Vasquez, 225 S.W.3d 744 (Tex. App.—Houston [14th Dist.] 2007). “Tex. Lab.Code § 406.034(a). An employee who desires to retain the common-law right of action to recover damages shall notify the employer in writing that the employee waives coverage no later than the fifth day after the employee begins employment, or after the employee receives…”
Walls Reg'l Hosp. v. Bomar, 9 S.W.3d 805 (Tex. 1999).
Tex. Lab. Code § 406.034(b): 9 cases
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009). “TEX. LAB.CODE § 406.034. It also overlooks the quid pro quo, being the relinquishment of uncertain common law recovery in exchange for the prompt receipt of defined benefits, that has insulated the Act from constitutional challenge under the Open Courts provision of the Texas…”
Vasquez v. Dillard's, Inc., 2016 OK 89, 381 P.3d 768. “(citing Tex. Lab. Code § 406.034(b)). 9 Id. (citing Tex.”
ExxonMobil Corp. v. Kirkendall, 151 S.W.3d 594 (Tex. App.—San Antonio 2004).
Lawrence v. CDB Servs., Inc., 44 S.W.3d 544 (Tex. 2001).
Nixson v. Mobil Oil Corp., 928 S.W.2d 245 (Tex. App.—Houston [14th Dist.] 1996).
Tex. Lab. Code § 406.034(d): 4 cases
Vasquez v. Dillard's, Inc., 2016 OK 89, 381 P.3d 768. “(citing Tex. Lab. Code § 406.034(b)). 9 Id. (citing Tex.”
Lawrence v. CDB Servs., Inc., 44 S.W.3d 544 (Tex. 2001).
Vasquez v. Dillard's, Inc., 2016 OK 89.
Texas Mut. Ins. Co. v. Phi Air Med., LLC, 610 S.W.3d 839 (Tex. 2020).
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