LABOR CODE
CHAPTER 402. TEXAS WORKERS' COMPENSATION COMMISSION
SUBCHAPTER A. ORGANIZATION
§ 402.001. MEMBERSHIP REQUIREMENTS. (a) The Texas
Workers' Compensation Commission is composed of six members
appointed by the governor with the advice and consent of the senate.
(b) Appointments to the commission shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee. Section 401.011(16) does not
apply to the use of the term "disability" in this subsection.
(c) Three members of the commission must be employers of
labor and three members of the commission must be wage earners. A
person is not eligible for appointment as a member of the commission
if the person provides services subject to regulation by the
commission or charges fees that are subject to regulation by the
commission.
(d) In making appointments to the commission, the governor
shall attempt to reflect the social, geographic, and economic
diversity of the state. To ensure balanced representation, the
governor may consider:
(1) the geographic location of a prospective
appointee's domicile;
(2) the prospective appointee's experience as an
employer or wage earner;
(3) the number of employees employed by a prospective
member who would represent employers; and
(4) the type of work performed by a prospective member
who would represent wage earners.
(e) The governor shall consider the factors listed in
Subsection (d) in appointing a member to fill a vacancy on the
commission.
(f) In making an appointment to the commission, the governor
shall consider recommendations made by groups that represent
employers or wage earners.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.02, eff. Sept. 1, 1995.
§ 402.0015. TRAINING PROGRAM FOR COMMISSION
MEMBERS. (a) Before a member of the commission may assume the
member's duties, the member must complete the training program
established under this section.
(b) A training program established under this section must
provide information to the member regarding:
(1) the enabling legislation that created the
commission;
(2) the programs operated by the commission;
(3) the role and functions of the commission;
(4) the rules of the commission, with an emphasis on
the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of the most recent formal audit of the
commission;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the open records law, Chapter 552, Government
Code; and
(C) the administrative procedure law, Chapter
2001, Government Code;
(8) the requirements of the conflict of interest laws
and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the
commission or the Texas Ethics Commission.
Added by Acts 1995, 74th Leg., ch. 980, § 1.03, eff. Sept. 1,
1995.
§ 402.002. TERMS; VACANCY. (a) Members of the
commission hold office for staggered two-year terms, with the terms
of three members expiring on February 1 of each year.
(b) If a vacancy occurs during a term, the governor shall
fill the vacancy for the unexpired term. The replacement must be
from the group represented by the member being replaced.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 1170, § 47.01, eff. Sept. 1, 2003.
§ 402.003. EFFECT OF LOBBYING ACTIVITY. A person may
not serve as a member of the commission or act as the general
counsel to the commission if the person is required to register as a
lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession that
is regulated by or that has fees regulated by the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.04, eff. Sept. 1, 1995.
§ 402.004. VOTING REQUIREMENTS. (a) The commission
may take action only by a majority vote of its membership.
(b) Decisions regarding the employment of an executive
director require the affirmative vote of at least two commissioners
representing employers and two commissioners representing wage
earners.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.005. REMOVAL OF COMMISSION MEMBERS. (a) It is a
ground for removal from the commission if a member:
(1) does not have at the time of appointment the
qualifications required for appointment to the commission;
(2) does not maintain during service on the commission
the qualifications required for appointment to the commission;
(3) violates a prohibition established by Section
402.003 or 402.012;
(4) cannot because of illness or incapacity discharge
the member's duties for a substantial part of the term for which the
member is appointed; or
(5) is absent from more than half of the regularly
scheduled commission meetings that the member is eligible to attend
during a calendar year.
(b) The validity of an action of the commission is not
affected by the fact that it is taken when a ground for removal of a
commission member exists.
(c) If the executive director of the commission knows that a
potential ground for removal exists, the executive director shall
notify the chairman of the commission of the potential ground. The
chairman shall then notify the governor and the attorney general
that a potential ground for removal exists. If the potential ground
for removal involves the chairman, the executive director shall
notify the next highest officer of the commission, who shall notify
the governor and the attorney general that a potential ground for
removal exists.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.05, eff. Sept. 1, 1995.
§ 402.006. PROHIBITED GIFTS; ADMINISTRATIVE
VIOLATION. (a) A member or employee of the commission may not
accept a gift, gratuity, or entertainment from a person having an
interest in a matter or proceeding pending before the commission.
(b) A violation of Subsection (a) is a Class A
administrative violation and constitutes a ground for removal from
office or termination of employment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.007. MEETINGS. The commission shall meet at least
once in each calendar quarter and may meet at other times at the
call of the chairman or as provided by the rules of the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.008. CHAIRMAN. (a) The governor shall designate
a member of the commission as the chairman of the commission to
serve in that capacity for a two-year term expiring February 1 of
each odd-numbered year. The governor shall alternate the
chairmanship between the members who are employers and the members
who are wage earners.
(b) The chairman may vote on all matters before the
commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.06, eff. Sept. 1, 1995.
§ 402.009. LEAVE OF ABSENCE. (a) An employer may not
terminate the employment of an employee who is appointed as a member
of the commission because of the exercise by the employee of duties
required as a commission member.
(b) A member of the commission is entitled to a leave of
absence from employment for the time required to perform commission
duties. During the leave of absence, the member may not be
subjected to loss of time, vacation time, or other benefits of
employment, other than salary.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.010. CIVIL LIABILITY OF MEMBER. A member of the
commission is not liable in a civil action for an act performed in
good faith in the execution of duties as a commission member.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.011. REIMBURSEMENT. (a) A member of the
commission is entitled to reimbursement for actual and necessary
expenses incurred in performing functions as a member of the
commission. Reimbursement under this subsection may not exceed a
limit established in the General Appropriations Act.
(b) A member is entitled to reimbursement for actual lost
wages or use of leave benefits, if any, for:
(1) attendance at commission meetings and hearings;
(2) preparation for a commission meeting, not to
exceed two days in each calendar quarter;
(3) attendance at a subcommittee meeting, not to
exceed one day each month;
(4) attendance by the chair or vice chair of the
commission at a legislative committee meeting if attendance is
requested by the committee chair; and
(5) attendance at a meeting by a member appointed to
the Research and Oversight Council on Workers' Compensation or the
Texas Certified Self-Insured Guaranty Association.
(c) Reimbursement under Subsection (b) may not exceed $100 a
day and $5,000 a year.
(d) A member of the commission is entitled to reimbursement
for actual and necessary expenses for attendance at not more than
five seminars in a calendar year if:
(1) the member is invited as a representative of the
commission to participate in a program offered at the seminar; and
(2) the member's participation is approved by the
chair of the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 1443, § 2, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 1426, § 3, eff. Sept. 1, 1999.
§ 402.012. CONFLICT OF INTEREST. (a) An officer,
employee, or paid consultant of a Texas trade association whose
members provide services subject to regulation by the commission or
provide services whose fees are subject to regulation by the
commission may not be a member of the commission or an employee of
the commission who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group 17, of the position classification salary schedule.
(b) On acceptance of appointment to the commission, an
appointee who is an officer, employee, or paid consultant of a Texas
trade association described by Subsection (a) must resign the
position or terminate the contract with the trade association.
(c) For the purposes of this section, "Texas trade
association" means a nonprofit, cooperative, and voluntarily
joined association of business or professional competitors in this
state designed to assist its members and its industry or profession
in dealing with mutual business or professional problems and in
promoting their common interest. The term does not include a labor
union or an employees' association.
Added by Acts 1995, 74th Leg., ch. 980, § 1.07, eff. Sept. 1,
1995.
SUBCHAPTER B. ADMINISTRATION
§ 402.021. COMMISSION DIVISIONS. (a) The commission
shall have:
(1) a division of workers' health and safety;
(2) a division of medical review;
(3) a division of compliance and practices; and
(4) a division of hearings.
(b) In addition to the divisions listed by Subsection (a),
the executive director, with the approval of the commission, may
establish divisions within the commission for effective
administration and performance of commission functions. The
executive director may allocate and reallocate functions among the
divisions.
(c) The executive director shall appoint the directors of
the divisions of the commission. The directors serve at the
pleasure of the executive director.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 1098, § 7, eff. Sept. 1, 1997.
§ 402.022. PUBLIC INTEREST INFORMATION. (a) The
executive director shall prepare information of public interest
describing the functions of the commission and the procedures by
which complaints are filed with and resolved by the commission.
(b) The executive director shall make the information
available to the public and appropriate state agencies.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.023. COMPLAINT INFORMATION. (a) The executive
director shall keep an information file about each written
complaint filed with the commission that is unrelated to a specific
workers' compensation claim. The information must include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of all persons contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) for complaints for which the commission took no
action, an explanation of the reason the complaint was closed
without action.
(b) For each written complaint that is unrelated to a
specific workers' compensation claim that the commission has
authority to resolve, the executive director shall provide to the
person filing the complaint and the person about whom the complaint
is made information about the commission's policies and procedures
relating to complaint investigation and resolution. The
commission, at least quarterly and until final disposition of the
complaint, shall notify those persons about the status of the
complaint unless the notice would jeopardize an undercover
investigation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.08, eff. Sept. 1, 1995.
§ 402.024. PUBLIC PARTICIPATION. (a) The commission
shall develop and implement policies that provide the public with a
reasonable opportunity to appear before the commission and to speak
on issues under the general jurisdiction of the commission.
(b) The commission shall comply with federal and state laws
related to program and facility accessibility.
(c) In addition to compliance with Subsection (a), the
executive director shall prepare and maintain a written plan that
describes how a person who does not speak English may be provided
reasonable access to the commission's programs and services.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.09, eff. Sept. 1, 1995.
§ 402.025. AUDIT. The financial transactions of the
commission are subject to audit by the state auditor in accordance
with Chapter 321, Government Code.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL
§ 402.041. EXECUTIVE DIRECTOR. (a) The executive
director is the executive officer and administrative head of the
commission. The executive director exercises all rights, powers,
and duties imposed or conferred by law on the commission, except for
rulemaking and other rights, powers, and duties specifically
reserved under this subtitle to members of the commission.
(b) The executive director shall hire personnel as
necessary to administer this subtitle.
(c) The executive director serves at the pleasure of the
commission.
(d) The commission shall develop and implement policies
that clearly separate the policymaking responsibilities of the
commission and the management responsibilities of the executive
director and the staff of the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.10, eff. Sept. 1, 1995.
§ 402.042. GENERAL POWERS AND DUTIES OF EXECUTIVE
DIRECTOR. (a) The executive director shall conduct the
day-to-day operations of the commission in accordance with policies
established by the commission and otherwise implement commission
policy.
(b) The executive director may:
(1) investigate misconduct;
(2) hold hearings;
(3) issue subpoenas to compel the attendance of
witnesses and the production of documents;
(4) administer oaths;
(5) take testimony directly or by deposition or
interrogatory;
(6) assess and enforce penalties established under
this subtitle;
(7) enter appropriate orders as authorized by this
subtitle;
(8) correct clerical errors in the entry of orders;
(9) institute an action in the commission's name to
enjoin the violation of this subtitle;
(10) initiate an action under Section 410.254 to
intervene in a judicial proceeding;
(11) prescribe the form, manner, and procedure for
transmission of information to the commission; and
(12) delegate all powers and duties as necessary.
(c) The executive director is the agent for service of
process on out-of-state employers.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.043. ADMINISTRATIVE ASSISTANTS. The executive
director shall employ and supervise:
(1) one person representing wage earners permanently
assigned to act as administrative assistant to the members of the
commission who represent wage earners; and
(2) one person representing employers permanently
assigned to act as administrative assistant to the members of the
commission who represent employers.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.044. CAREER LADDER; ANNUAL PERFORMANCE
EVALUATIONS. (a) The executive director shall develop an
intra-agency career ladder program that addresses opportunities
for mobility and advancement for employees within the commission.
The program shall require intra-agency postings of all positions
concurrently with any public posting.
(b) The executive director shall develop a system of annual
performance evaluations that are based on documented employee
performance. All merit pay for commission employees must be based
on the system established under this subsection.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.11, eff. Sept. 1, 1995.
§ 402.045. EQUAL EMPLOYMENT OPPORTUNITY POLICY
STATEMENT. (a) The executive director shall prepare and maintain
a written policy statement to ensure implementation of a program of
equal employment opportunity under which all personnel
transactions are made without regard to race, color, disability,
sex, religion, age, or national origin. The policy statement must
include:
(1) personnel policies, including policies related to
recruitment, evaluation, selection, appointment, training, and
promotion of personnel that are in compliance with the requirements
of Chapter 21;
(2) a comprehensive analysis of the commission work
force that meets federal and state guidelines;
(3) procedures by which a determination can be made of
significant underuse in the commission work force of all persons
for whom federal or state guidelines encourage a more equitable
balance; and
(4) reasonable methods to appropriately address those
areas of underuse.
(b) A policy statement prepared under this section must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for
compliance with Subsection (a)(1); and
(4) be filed with the governor's office.
(c) The governor's office shall deliver a biennial report to
the legislature based on the information received under Subsection
(b). The report may be made separately or as part of other biennial
reports made to the legislature.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.12, eff. Sept. 1, 1995.
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF COMMISSION
§ 402.061. ADOPTION OF RULES. The commission shall
adopt rules as necessary for the implementation and enforcement of
this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.062. ACCEPTANCE OF GIFTS, GRANTS, AND
DONATIONS. (a) The commission may accept gifts, grants, or
donations as provided by rules adopted by the commission.
(b) Notwithstanding Chapter 575, Government Code, the
commission may accept a grant paid by the Texas Mutual Insurance
Company established under Article 5. 76-3, Insurance Code, to
implement specific steps to control and lower medical costs in the
workers' compensation system and to ensure the delivery of quality
medical care. The commission must publish the name of the grantor
and the purpose and conditions of the grant in the Texas Register
and provide for a 20-day public comment period before the
commission may accept the grant. The commission shall acknowledge
acceptance of the grant at a public meeting. The minutes of the
public meeting must include the name of the grantor, a description
of the grant, and a general statement of the purposes for which the
grant will be used.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 4, eff. Sept. 1, 1999; Acts
2001, 77th Leg., ch. 1195, § 2.08, eff. Sept. 1, 2001.
§ 402.063. APPOINTMENT OF EXECUTIVE DIRECTOR. The
commission shall appoint the executive director of the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.064. FEES. In addition to fees established by
this subtitle, the commission shall set reasonable fees for
services provided to persons requesting services from the
commission, including services provided under Subchapter E.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.065. EMPLOYMENT OF COUNSEL. The commission may
employ counsel to represent the commission in any legal action the
commission is authorized to initiate.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.066. RECOMMENDATIONS TO LEGISLATURE. (a) The
commission shall consider and recommend to the legislature changes
to this subtitle.
(b) The commission shall forward the recommended changes to
the legislature not later than December 1 of each even-numbered
year.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.0665. LEGISLATIVE OVERSIGHT. The legislature may
adopt requirements relating to legislative oversight of the
commission and the workers' compensation system of this state. The
commission shall comply with any requirements adopted by the
legislature under this section.
Added by Acts 1995, 74th Leg., ch. 980, § 1.13, eff. Sept. 1,
1995.
§ 402.067. ADVISORY COMMITTEES. The commission may
appoint advisory committees as it considers necessary.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.068. DELEGATION OF RIGHTS AND DUTIES. Except as
expressly provided by this subchapter, the commission may not
delegate rights and duties imposed on it by this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.14, eff. Sept. 1, 1995.
§ 402.069. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The executive director shall provide to members of
the commission and commission employees, as often as necessary,
information regarding their:
(1) qualifications for office or employment under this
subtitle; and
(2) responsibilities under applicable law relating to
standards of conduct for state officers or employees.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.15, eff. Sept. 1, 1995.
§ 402.070. ANNUAL REPORT. (a) The commission shall
prepare annually a complete and detailed written report accounting
for all funds received and disbursed by the commission during the
preceding fiscal year.
(b) The report required under this section must meet the
reporting requirements applicable to financial reporting that are
provided by the General Appropriations Act.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.16, eff. Sept. 1, 1995.
§ 402.071. REPRESENTATIVES. (a) The commission shall
establish qualifications for a representative and shall adopt rules
establishing procedures for authorization of representatives.
(b) A representative may receive a fee for providing
representation under this subtitle only if the representative is:
(1) an adjuster representing an insurance carrier; or
(2) licensed to practice law.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.072. SANCTIONS. Only the commission may impose:
(1) a sanction that deprives a person of the right to
practice before the commission or of the right to receive
remuneration under this subtitle for a period exceeding 30 days; or
(2) another sanction suspending for more than 30 days
or revoking a license, certification, or permit required for
practice in the field of workers' compensation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.073. COOPERATION WITH STATE OFFICE OF
ADMINISTRATIVE HEARINGS. (a) The commission and the chief
administrative law judge of the State Office of Administrative
Hearings by rule shall adopt a memorandum of understanding
governing administrative procedure law hearings under this
subtitle conducted by the State Office of Administrative Hearings
in the manner provided for a contested case hearing under Chapter
2001, Government Code (the administrative procedure law).
(b) In a case in which a hearing is conducted by the State
Office of Administrative Hearings under Section 411.049, 413.031,
413.055, or 415.034, the administrative law judge who conducts the
hearing for the State Office of Administrative Hearings shall enter
the final decision in the case after completion of the hearing.
(c) In a case in which a hearing is conducted in conjunction
with Section 402.072, 407.046, or 408.023, and in other cases under
this subtitle that are not subject to Subsection (b), the
administrative law judge who conducts the hearing for the State
Office of Administrative Hearings shall propose a decision to the
commission for final consideration and decision by the commission.
Added by Acts 1995, 74th Leg., ch. 980, § 1.17, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 955, § 1, eff. Sept.
1, 1999.
SUBCHAPTER E. RECORDS AND EMPLOYEE INFORMATION
§ 402.081. COMMISSION RECORDS. (a) The executive
director is the custodian of the commission's records and shall
perform the duties of a custodian required by law, including
providing copies and the certification of records.
(b) The executive director may destroy a record maintained
by the commission pertaining to an injury after the 50th
anniversary of the date of the injury to which the record refers
unless benefits are being paid on the claim on that date.
(c) A record maintained by the commission may be preserved
in any format permitted by Chapter 441, Government Code, and rules
adopted by the Texas State Library and Archives Commission under
that chapter.
(d) The commission may charge a reasonable fee for making
available for inspection any of its information that contains
confidential information that must be redacted before the
information is made available. However, when a request for
information is for the inspection of 10 or fewer pages, and a copy
of the information is not requested, the commission may charge only
the cost of making a copy of the page from which confidential
information must be redacted. The fee for access to information
under Chapter 552, Government Code, shall be in accord with the
rules of the General Services Commission that prescribe the method
for computing the charge for copies under that chapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 1270, § 1 eff. June 20, 1997.
§ 402.082. INJURY INFORMATION MAINTAINED BY
COMMISSION. The commission shall maintain information on every
compensable injury as to the:
(1) race, ethnicity, and sex of the claimant;
(2) classification of the injury;
(3) amount of wages earned by the claimant before the
injury; and
(4) amount of compensation received by the claimant.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.083. CONFIDENTIALITY OF INJURY
INFORMATION. (a) Information in or derived from a claim file
regarding an employee is confidential and may not be disclosed by
the commission except as provided by this subtitle.
(b) Information concerning an employee who has been finally
adjudicated of wrongfully obtaining payment under Section 415.008
is not confidential.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 9.42, 14.49, eff. Sept. 1,
1995.
§ 402.084. RECORD CHECK; RELEASE OF
INFORMATION. (a) The commission shall perform and release a
record check on an employee, including current or prior injury
information, to the parties listed in Subsection (b) if:
(1) the claim is:
(A) open or pending before the commission;
(B) on appeal to a court of competent
jurisdiction; or
(C) the subject of a subsequent suit in which the
insurance carrier or the subsequent injury fund is subrogated to
the rights of the named claimant; and
(2) the requesting party requests the release on a
form prescribed by the commission for this purpose and provides all
required information.
(b) Information on a claim may be released as provided by
Subsection (a) to:
(1) the employee or the employee's legal beneficiary;
(2) the employee's or the legal beneficiary's
representative;
(3) the employer at the time of injury;
(4) the insurance carrier;
(5) the Texas Certified Self-Insurer Guaranty
Association established under Subchapter G, Chapter 407, if that
association has assumed the obligations of an impaired employer;
(6) the Texas Property and Casualty Insurance Guaranty
Association, if that association has assumed the obligations of an
impaired insurance company;
(7) a third-party litigant in a lawsuit in which the
cause of action arises from the incident that gave rise to the
injury; or
(8) a subclaimant under Section 409.009 that is an
insurance carrier that has adopted an antifraud plan under Article
3.97-3, Insurance Code, or the authorized representative of such a
subclaimant.
(c) The requirements of Subsection (a)(1) do not apply to a
request from a third-party litigant described by Subsection (b)(7).
(d) Information on a claim relating to a subclaimant under
Subsection (b)(8) may include information, in an electronic data
format, on all workers' compensation claims necessary to determine
if a subclaim exists. The information on a claim remains subject to
confidentiality requirements while in the possession of a
subclaimant or representative. The commission by rule may
establish a reasonable fee for all information requested under this
subsection in an electronic data format by subclaimants or
authorized representatives of subclaimants. The commission shall
adopt rules under Section 401.024(d) to establish:
(1) reasonable security parameters for all transfers
of information requested under this subsection in electronic data
format; and
(2) requirements regarding the maintenance of
electronic data in the possession of a subclaimant or the
subclaimant's representative.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1033, § 5, eff. Sept. 1, 2001.
§ 402.085. EXCEPTIONS TO CONFIDENTIALITY. (a) The
commission shall release information on a claim to:
(1) the Texas Department of Insurance for any
statutory or regulatory purpose;
(2) a legislative committee for legislative purposes;
(3) a state or federal elected official requested in
writing to provide assistance by a constituent who qualifies to
obtain injury information under Section 402.084(b), if the request
for assistance is provided to the commission;
(4) the Research and Oversight Council on Workers'
Compensation for research purposes; or
(5) the attorney general or another entity that
provides child support services under Part D, Title IV, Social
Security Act (42 U.S.C. Section 651 et seq.), relating to:
(A) establishing, modifying, or enforcing a
child support or medical support obligation; or
(B) locating an absent parent.
(b) The commission may release information on a claim to a
governmental agency, political subdivision, or regulatory body to
use to:
(1) investigate an allegation of a criminal offense or
licensing or regulatory violation;
(2) provide:
(A) unemployment compensation benefits;
(B) crime victims compensation benefits;
(C) vocational rehabilitation services; or
(D) health care benefits;
(3) investigate occupational safety or health
violations;
(4) verify income on an application for benefits under
an income-based state or federal assistance program; or
(5) assess financial resources in an action, including
an administrative action, to:
(A) establish, modify, or enforce a child support
or medical support obligation;
(B) establish paternity;
(C) locate an absent parent; or
(D) cooperate with another state in an action
authorized under Part D, Title IV, Social Security Act (42 U.S.C.
Section 651 et seq.), or Chapter 76, Human Resources Code.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 9.43(a), eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 1426, § 5, eff. Sept. 1, 1999.
§ 402.086. TRANSFER OF
CONFIDENTIALITY. (a) Information relating to a claim that is
confidential under this subtitle remains confidential when
released to any person, except when used in court for the purposes
of an appeal.
(b) This section does not prohibit an employer from
releasing information about a former employee to another employer
with whom the employee has applied for employment, if that
information was lawfully acquired by the employer releasing the
information.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.087. INFORMATION AVAILABLE TO PROSPECTIVE
EMPLOYERS. (a) A prospective employer who has workers'
compensation insurance coverage and who complies with this
subchapter is entitled to obtain information on the prior injuries
of an applicant for employment if the employer obtains written
authorization from the applicant before making the request.
(b) The employer must make the request by telephone or file
the request in writing not later than the 14th day after the date on
which the application for employment is made.
(c) The request must include the applicant's name, address,
and social security number.
(d) If the request is made in writing, the authorization
must be filed simultaneously. If the request is made by telephone,
the employer must file the authorization not later than the 10th day
after the date on which the request is made.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.088. REPORT OF PRIOR INJURY. (a) On receipt of a
valid request made under and complying with Section 402.087, the
commission shall review its records.
(b) If the commission finds that the applicant has made two
or more general injury claims in the preceding five years, the
commission shall release the date and description of each injury to
the employer.
(c) The information may be released in writing or by
telephone.
(d) If the employer requests information on three or more
applicants at the same time, the commission may refuse to release
information until it receives the written authorization from each
applicant.
(e) In this section, "general injury" means an injury other
than an injury limited to one or more of the following:
(1) an injury to a digit, limb, or member;
(2) an inguinal hernia; or
(3) vision or hearing loss.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.089. FAILURE TO FILE AUTHORIZATION;
ADMINISTRATIVE VIOLATION. (a) An employer who receives
information by telephone from the commission under Section 402.088
and who fails to file the necessary authorization in accordance
with Section 402.087 commits a Class C administrative violation.
(b) Each failure to file an authorization is a separate
violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.090. STATISTICAL INFORMATION. The commission,
the research center, or any other governmental agency may prepare
and release statistical information if the identity of an employee
is not explicitly or implicitly disclosed.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 402.091. FAILURE TO MAINTAIN CONFIDENTIALITY;
OFFENSE; PENALTY. (a) A person commits an offense if the person
knowingly, intentionally, or recklessly publishes, discloses, or
distributes information that is confidential under this subchapter
to a person not authorized to receive the information directly from
the commission.
(b) A person commits an offense if the person knowingly,
intentionally, or recklessly receives information that is
confidential under this subchapter and that the person is not
authorized to receive.
(c) An offense under this section is a Class A misdemeanor.
(d) An offense under this section may be prosecuted in a
court in the county where the information was unlawfully received,
published, disclosed, or distributed.
(e) A district court in Travis County has jurisdiction to
enjoin the use, publication, disclosure, or distribution of
confidential information under this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.18, eff. Sept. 1, 1995.
§ 402.092. INVESTIGATION FILES
CONFIDENTIAL. (a) Information maintained in the investigation
files of the commission is confidential and may not be disclosed
except:
(1) in a criminal proceeding;
(2) in a hearing conducted by the commission;
(3) on a judicial determination of good cause; or
(4) to a governmental agency, political subdivision,
or regulatory body if the disclosure is necessary or proper for the
enforcement of the laws of this or another state or of the United
States.
(b) Commission investigation files are not open records for
purposes of Chapter 552, Government Code.
(c) Information in an investigation file that is
information in or derived from a claim file, or an employer injury
report or occupational disease report, is governed by the
confidentiality provisions relating to that information.
(d) For purposes of this section, "investigation file"
means any information compiled or maintained by the commission with
respect to a commission investigation authorized by law.
(e) The commission, upon request, shall disclose the
identity of a complainant under this section if the commission
finds:
(1) the complaint was groundless or made in bad faith;
or
(2) the complaint lacks any basis in fact or evidence;
or
(3) the complaint is frivolous; or
(4) the complaint is done specifically for competitive
or economic advantage.
(f) Upon completion of an investigation where the
commission determines a complaint is groundless, frivolous, made in
bad faith, or is not supported by evidence or is done specifically
for competitive or economic advantage the commission shall notify
the person who was the subject of the complaint of its finding and
the identity of the complainant.
Added by Acts 1995, 74th Leg., ch. 980, § 1.19, eff. Sept. 1,
1995.
