Texas alone lets private employers opt out of workers’ compensation. For injured workers, that opt-out cuts both ways — no automatic benefits, but a direct path to sue.
Non-subscribers lose their defenses
Under Tex. Labor Code 406.002, workers’ compensation is elective. An employer that opts out is a non-subscriber. If a non-subscriber’s negligence injures a worker, the worker can sue in court, and the employer is stripped of its three common-law defenses:
- contributory negligence;
- assumption of the risk; and
- the fellow-servant rule.
That means even a worker who was partly careless can recover, as long as the employer’s negligence caused the injury.
What the worker must prove
The worker still has to prove the employer was negligent — an unsafe condition, inadequate training, missing safeguards, or similar fault. Damages in a non-subscriber suit are not capped the way workers’ comp benefits are limited.
Whether your employer is a subscriber or non-subscriber changes the entire strategy. A Texas injury lawyer confirms the employer’s status and pursues the right claim.