If you were hurt at work in Texas and your employer does not carry workers' compensation insurance, you may be able to sue that employer directly for negligence. Texas is the only state that lets private employers opt out of the workers' compensation system. An employer that opts out is called a nonsubscriber. Nonsubscribers lose the legal protections that workers' comp normally gives an employer, which means an injured worker can bring a personal injury lawsuit against the company instead of filing a comp claim. That is a meaningful difference, and it changes almost everything about how the claim works.
What is a nonsubscriber employer in Texas?
A subscriber is an employer that buys workers' compensation coverage. A nonsubscriber is an employer that chooses not to. Both are legal in Texas. Many large retailers, restaurant groups, staffing companies, trucking outfits, and construction contractors in Texas are nonsubscribers.
Nonsubscribers are required to notify the Texas Department of Insurance, Division of Workers' Compensation that they do not carry coverage, and they are required to post notice for employees. In practice, workers often do not know their employer's status until they get hurt and start asking questions.
Some nonsubscribers offer their own private injury benefit plan, sometimes called an occupational injury plan or an ERISA plan. These plans are not workers' compensation. They are a company program with company rules, and the benefits, deadlines, and appeal rights are set by the plan document rather than by state law.
How to find out if your employer is a nonsubscriber
- Look for a posted notice in the break room or with other required employment postings.
- Check your employee handbook or onboarding paperwork for an injury benefit plan.
- Ask human resources directly and ask for it in writing.
- The Division of Workers' Compensation maintains information about employer coverage status that can be requested.
Why a texas nonsubscriber work injury lawsuit is different from a workers' comp claim
Workers' compensation is a trade. A covered worker gets benefits without proving anyone was at fault, and in exchange gives up the right to sue the employer. The benefits are limited and set by statute, and there is generally no recovery for pain and suffering.
When an employer is a nonsubscriber, that trade never happened. A nonsubscriber work injury claim is an ordinary negligence lawsuit. That brings two important consequences.
First, fault matters. In a comp claim, the worker does not have to prove the employer did anything wrong. In a nonsubscriber lawsuit, the worker does. The claim generally requires showing that the employer failed to use ordinary care and that the failure caused the injury.
Second, the categories of damages are broader. A negligence claim can include past and future medical expenses, lost wages, lost earning capacity, physical pain, mental anguish, physical impairment, and disfigurement. Texas does not cap ordinary compensatory damages in a standard negligence case, so there is no statutory ceiling on those categories the way there is in certain other kinds of claims.
What the employer cannot argue in a nonsubscriber case
This is the part most workers do not know. Texas law strips several of the most powerful defenses away from a nonsubscriber employer. Under the Texas Labor Code, a nonsubscriber sued by an injured employee generally cannot defend the case by arguing:
- That the employee was contributorily negligent, meaning the employee's own carelessness contributed to the injury.
- That the employee assumed the risk of the job.
- That the injury was caused by the negligence of a fellow employee.
The practical effect is significant. In a typical Texas injury case, comparative fault applies, and a plaintiff who is found 51 percent or more at fault recovers nothing at all. In a nonsubscriber case, that defense is largely off the table. An employer generally cannot reduce or defeat the claim by pointing at the worker's own negligence.
There are limits. The employer can still contest whether it was negligent in the first place, whether its negligence caused the injury, and the nature and extent of the damages. And the bar on these defenses does not apply if the injury was caused by the employee's willful intent to injure themselves or by intoxication.
What you have to prove
Removing the employer's defenses does not remove the worker's burden. The claim still rests on showing employer negligence. Common theories in Texas nonsubscriber cases include:
- Unsafe equipment or premises. Broken machinery, missing guards, defective ladders, unrepaired hazards.
- Failure to train. Putting a worker on a task or a machine without adequate instruction.
- Failure to provide safety equipment. No harness, no respirator, no proper lifting assistance.
- Inadequate staffing. Assigning a two-person job to one person.
- Failure to warn of a known hazard on the job site.
- Negligent hiring or supervision of the people creating the risk.
Evidence usually comes from incident reports, maintenance and inspection records, training files, safety manuals, prior complaints about the same hazard, coworker accounts, photographs, and medical records tying the injury to the event.
How long you have to file
In Texas, a personal injury lawsuit generally must be filed within two years from the date of the injury. That deadline comes from Texas Civil Practice and Remedies Code Section 16.003. A nonsubscriber work injury claim is a personal injury claim, so the same two-year limitations period applies.
Missing that deadline usually ends the claim permanently, no matter how strong the underlying facts are. A few narrow doctrines can affect the calculation in unusual situations, but nobody should plan around an exception.
Company injury plans often impose their own much shorter deadlines. A plan might require reporting an injury within twenty-four hours, or filing a benefit claim within a set number of days. Those plan deadlines run separately from the two-year statute of limitations and can be missed long before the legal deadline is anywhere close.
A note on arbitration agreements
Many Texas nonsubscribers ask employees to sign an arbitration agreement, sometimes bundled into the injury benefit plan or an onboarding packet. If enforceable, that agreement can require the dispute to be resolved by a private arbitrator rather than a jury. Whether a particular agreement is enforceable depends on how it was presented, what it says, and how it was accepted. This is one of the first things worth having reviewed.
Practical steps after a workplace injury
- Get medical care and be accurate with the provider about how the injury happened.
- Report the injury to a supervisor in writing and keep a copy.
- Take photographs of the equipment, the area, and any visible injuries.
- Write down what happened while it is fresh, including names of anyone who saw it.
- Request copies of the incident report, the injury plan documents, and anything you signed at hiring.
- Read carefully before signing any release, settlement, or benefit election.
Be cautious with plan paperwork. Some company injury plans condition benefits on signing a release of legal claims. Accepting a modest payment can sometimes close the door on a larger claim.
The bottom line
Texas employers can legally opt out of workers' compensation, and when they do, they give up the immunity that comes with it. A worker injured by a nonsubscriber can generally sue for negligence, can seek the full range of compensatory damages with no statutory cap on ordinary compensatory damages, and faces an employer that cannot rely on contributory negligence, assumption of the risk, or fellow-employee negligence as defenses. The worker still has to prove the employer was negligent, and the case still has to be filed within two years of the injury under Texas Civil Practice and Remedies Code Section 16.003. Company injury plans and arbitration agreements can complicate all of it, which is why the paperwork deserves a close look early.
This article is general information about Texas law and is not legal advice. Laws change and every case is different. Talk to a licensed attorney about your situation.