Texas Supreme Court Draws Widespread Criticism

Opinion seems to be unanimous: The Texas Supreme Court really bollixed up its decision in the Entergy v. Summers case last year. First legislators and the plaintiffs' bar complained, and now even the Texas Association of Defense Counsel – which presumably would normally side with the energy company that won the case – has come out in favor of a rehearing this fall.

To recap: Plaintiff John Summers was injured at a plant site of Entergy Gulf States Inc. while working for International Maintenance Corp. Under the Texas Workers' Compensation Act, employers who buy a certain type of workers' compensation insurance are shielded from injury lawsuits; workers' comp benefits are the "exclusive remedy" for hurt employees. However, the law was intended to apply only to general contractors and the employees of subcontractors. But before the court last year, Entergy argued that since it was the company that authorized IMC's work, Entergy itself was the general contractor. The court bought it, ruling that the law did not expressly forbid premises owners from also being general contractors.

That decision sent up howls from legislators and labor activists who said the court had completely overlooked legislative intent and that the Legislature had never meant for the law to be applied to premises owners and had in fact made that quite clear in the debates that produced the law. Essentially, they said, the court has rewritten the law from the bench.

The TADC wholeheartedly agrees. In an amicus curiae brief to the court earlier this month, the organization made three key points: First, "the Court should read the statute as a whole (not just the definition of 'general contractor' in isolation), and hold that the Legislature did not intend a substantive change during the codification process"; second, expanding the "general contractor" definition as the court did completely disrupts the complex scheme of how employers are defined in the Texas Workers' Compen­sa­tion Act; and third, that expansion could lead to a host of unforeseen problems that wouldn't have been possible otherwise.

While courts generally should consider the plain meaning of the wording of a law, wrote attorneys Scott Stolley and Greg Curry of the Thompson & Knight law firm, "courts must not adopt a plain-meaning construction that would produce an absurd result. A court should not construe a statutory provision in isolation, but 'should consider the act as a whole, and not just as single phrases, clauses, or sentences.'" The phrase "general contractor," they wrote, has come to acquire a technical meaning that does not include business owners that oversee construction on their own premises.

"Analogously, no one would consider a pro se litigant to be 'counsel,' and a layperson who self-medicates would not be considered a 'physician.' ... The Court's opinion in this case relies almost solely on the naked text of the statutory definition."

After laying out multiple scenarios of how the court's definition would cause unintended interpretations of the law "that could plague the TWCA for decades" and endanger worker safety, the brief says the absurdity could reach the point that, going well beyond the construction industry, "[a]ccepting Entergy's logic, a 'general contractor' is anyone who hires someone to perform any service of any kind." Ultimately, the brief says, defining "general contractor" is not for the court: "The Legislature is better suited to iron out these policy issues."