Hurt at Work for a Texas Employer With No Workers’ Comp

Beverly Law. Updated November 2026.

Why some Texas workers have no comp coverage

Under Texas Labor Code § 406.002, a private Texas employer may elect whether to obtain workers’ compensation coverage. Public employers are the exception. A company that opts out is called a non-subscriber, and the Texas Department of Insurance, Division of Workers’ Compensation (DWC) says an employer also becomes a non-subscriber on the date its policy ends.

This is far from rare. TDI’s 2024 biennial report puts non-subscribers at 24% of Texas employers, employing 13% of Texas workers. TDI’s 2022 employer survey found the rate was highest among the smallest businesses.

The defenses a non-subscriber gives up

When an employee without comp coverage sues over an injury or death in the course and scope of the job, § 406.033(a) says it is not a defense that:

• the employee was guilty of contributory negligence;
• the employee assumed the risk of injury or death; or
• the injury or death was caused by a fellow employee’s negligence.

Two defenses survive under § 406.033(c): the employer may argue the employee intended to bring about the injury, or was intoxicated when it happened.

In In re East Texas Medical Center Athens (April 2025), the Supreme Court of Texas read § 406.033(a) as barring a non-subscriber from claiming the employee bears some portion of responsibility for his own injuries. But it held that the employer may still designate outside people or companies as responsible third parties under Civil Practice and Remedies Code § 33.004. Under § 33.013, a defendant generally pays only its own percentage of the damages, unless the jury puts it above 50%.

You still have to prove negligence

Losing those defenses does not make the employer automatically liable. Section 406.033(d) requires the injured worker to prove negligence by the employer or by an agent or servant acting within the general scope of employment.

In Austin v. Kroger Texas, L.P. (2015), the Supreme Court of Texas said employers must use reasonable care to provide a safe place to work but are not insurers of employee safety. For premises conditions, the Court held that duty is ordinarily met by warning of concealed dangers, and an employer generally need not fix or warn about a hazard the employee already knew about, with exceptions such as a dangerous area the employee had to use. Claims about the employer’s tools and equipment fall in a separate category, so how a claim is framed can decide whether it goes forward.

Gross negligence and workplace deaths

Exemplary (punitive) damages require clear and convincing proof of fraud, malice or gross negligence, and a unanimous jury, under § 41.003. Section 41.001(11) defines gross negligence as conduct involving an extreme degree of risk that the defendant actually knew about and ignored with conscious indifference to others’ safety.

When a worker is killed, the surviving spouse, children and parents may bring a wrongful death action under § 71.004. Section 71.009 allows exemplary damages when the death was caused by a willful act or omission or gross negligence. The two-year deadline in a death case runs from the date of death under § 16.003(b).

Notice rules and how to check coverage

Labor Code § 406.005 requires every employer to tell each employee whether it has coverage, inform new hires at the time of hiring, post a notice at the workplace, and notify employees within 15 days when coverage is obtained, terminated or canceled. 28 Tex. Admin. Code § 110.101 requires written notice to employees and workplace postings that include English, Spanish and any other language common to the workforce. DWC directs non-subscribers to post Notice 5 (Spanish version). Non-subscribers must also file an annual notice with DWC under § 406.004, which DWC says is due between February 1 and April 30.

To check status, use DWC’s verify employer coverage page. It links to the TXCOMP NCCI lookup for insured employers, the certified self-insurer list, and a non-subscriber dataset on the Texas Open Data Portal. If you still cannot tell, DWC says to email coverage.verification@tdi.texas.gov with the employer’s name, physical address and date of injury, and that it responds within one business day.

Waivers signed before and after the injury

Under § 406.033(e), any agreement to waive this lawsuit signed before the injury or death is void and unenforceable. After an injury, § 406.033(f) and (g) allow a waiver only if every one of these conditions is met:

• the employee signs voluntarily, knowing what the waiver does;
• it is signed no earlier than the 10th business day after the initial report of injury;
• before signing, the employee received a medical evaluation from a nonemergency care doctor;
• it is in writing and states the parties’ true intent; and
• the waiver terms are conspicuous on the face of the agreement, in larger type or contrasting color.

Paperwork handed to you in the days right after an accident deserves a slow read.

Employer injury plans and arbitration

Many non-subscribers run their own occupational injury plans that pay some medical bills or wage replacement. TDI’s 2022 survey found 30% of non-subscribers offered one, covering 73% of non-subscriber employees. Some of these plans are governed by the federal ERISA law and require arbitration.

In Hernandez v. Jobe Concrete Products (2002), the Fifth Circuit reviewed a Texas non-subscriber’s plan that sent “all claims for damages or harm resulting from an on-the-job injury” to binding arbitration. The court held the plan was governed by ERISA and affirmed the order compelling arbitration, while noting it had previously held that negligence claims against employers do not relate to ERISA plans. If you were enrolled in a plan, ask for the plan document, the summary plan description and any arbitration agreement you signed, since those papers control how benefits are paid and where a dispute is heard.

Claims against contractors, owners and equipment makers

On construction sites and in warehouses, your employer is often one of several companies present. A general contractor, another subcontractor or a driver for a different company may share fault. If a machine, ladder, scaffold or guard failed, the manufacturer or seller may face a products liability action as defined in § 82.001, generally subject to a 15-year limit after the product’s sale under § 16.012.

Property owners get added protection on construction and repair work. Under § 95.003, an owner is liable to a contractor’s employee only if the owner exercised or retained some control over how the work was done and actually knew of the danger and failed to warn adequately. Because a non-subscriber can name these outside parties as responsible third parties, it pays to identify every company on the site early.

Evidence to preserve

• Photos and video of the area, the equipment and any safety guard, plus model and serial numbers.
• Names and phone numbers of co-workers and anyone from other companies who saw what happened.
• A copy of every injury report or statement you sign.
• The posted coverage notice, any new-hire notice, plan booklets and arbitration papers.
• Medical records, bills, pay stubs and time records.
• Texts and emails with supervisors about the injury, staffing or prior complaints.

Employers must report, too. Labor Code § 411.032 requires a report to DWC of on-the-job injuries causing more than one day away from work (DWC says non-subscribers with five or more employees must file), and OSHA requires employers to report a fatality within 8 hours and an in-patient hospitalization, amputation or eye loss within 24 hours. Those reports can be requested later.

How damages work without a comp schedule

A non-subscriber case uses no impairment ratings or weekly benefit formulas; a jury decides actual damages. Economic damages cover medical expenses, lost wages and lost earning capacity, and § 41.0105 limits medical expenses to amounts actually paid or incurred. Noneconomic damages, defined in § 41.001(12), include physical pain, mental anguish, physical impairment and disfigurement. Exemplary damages are capped by § 41.008(b).

What this means for your case

Start by confirming your employer’s status through DWC and saving any notice you were given. Do not sign a release, plan election or arbitration form until you understand what it does. Write down how the injury happened while it is fresh, list every company working nearby, and mark the two-year date on your calendar.

Texas matters at Beverly Law are handled by the firm’s Texas-licensed attorneys, including for workers in Austin and across Texas. You can see the cases we take on our practice areas page, and if you also worked in Washington, our Washington work-injury guide explains how that state handles third-party claims. You owe no fees or costs unless we win. Call (310) 552-6959 for a free consultation with the firm’s Texas-licensed attorneys.

Common questions

Related pages

Legal guides · Washington work injuries and third-party claims · Austin injury lawyers · Texas · Practice areas

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys. Last reviewed: November 6, 2026.