Tex. Labor Code Section 406.034
Employee Election


(a)

Except as otherwise provided by law, unless the employee gives notice as provided by Subsection (b), an employee of an employer waives the employee’s right of action at common law or under a statute of this state to recover damages for personal injuries or death sustained in the course and scope of the employment.

(b)

An employee who desires to retain the common-law right of action to recover damages for personal injuries or death shall notify the employer in writing that the employee waives coverage under this subtitle and retains all rights of action under common law. The employee must notify the employer not later than the fifth day after the date on which the employee:

(1)

begins the employment; or

(2)

receives written notice from the employer that the employer has obtained workers’ compensation insurance coverage if the employer is not a covered employer at the time of the employment but later obtains the coverage.

(c)

An employer may not require an employee to retain common-law rights under this section as a condition of employment.

(d)

An employee who elects to retain the right of action or a legal beneficiary of that employee may bring a cause of action for damages for injuries sustained in the course and scope of the employment under common law or under a statute of this state. Notwithstanding Section 406.033 (Common-law Defenses; Burden of Proof), the cause of action is subject to all defenses available under common law and the statutes of this state unless the employee has waived coverage in connection with an agreement with the employer.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1108 (S.B. 1714), Sec. 2, eff. September 1, 2011.

Source: Section 406.034 — Employee Election, https://statutes.­capitol.­texas.­gov/Docs/LA/htm/LA.­406.­htm#406.­034 (accessed Feb. 22, 2024).

406.001
Definition
406.002
Coverage Generally Elective
406.003
Methods of Obtaining Coverage
406.004
Employer Notice to Division
406.005
Employer Notice to Employees
406.006
Insurance Coverage and Claim Administration Reporting Requirements
406.007
Termination of Coverage by Employer
406.008
Cancellation or Nonrenewal of Coverage by Insurance Company
406.009
Collecting and Maintaining Information
406.010
Claims Service
406.011
Austin Representative
406.012
Enforcement of Subchapter
406.031
Liability for Compensation
406.032
Exceptions
406.033
Common-law Defenses
406.034
Employee Election
406.035
Waiver of Compensation Prohibited
406.051
Security by Commercial Insurance
406.052
Effect of Other Insurance Coverage
406.053
All States Coverage
406.071
Extraterritorial Coverage
406.072
Principal Location
406.073
Agreement on Principal Location
406.074
Interjurisdictional Agreements
406.075
Effect of Compensation Paid in Other Jurisdiction
406.091
Exempt Employees
406.092
Alien Employees and Beneficiaries
406.093
Legally Incompetent Employees
406.094
Certain Persons Licensed by Texas Real Estate Commission
406.095
Certain Professional Athletes
406.096
Required Coverage for Certain Building or Construction Contractors
406.097
Executive Employees of Certain Business Entities
406.098
Volunteer Emergency Service Members and Personnel
406.121
Definitions
406.122
Status as Employee
406.123
Election to Provide Coverage
406.124
Cause of Action
406.125
Restriction of Unsafe Work Practices Unaffected
406.126
Exemption
406.127
Effect of Certain Contracts of Hire
406.141
Definitions
406.142
Application
406.143
Provision of Workers’ Compensation Insurance
406.144
Election to Provide Coverage
406.145
Joint Agreement
406.146
Wrongful Inducement Prohibited
406.161
Definitions
406.162
Scope
406.163
Liability of Labor Agent
406.164
Elective Coverage of Employer and Family Members
406.165
Not Applicable to Independent Contractors

Accessed:
Feb. 22, 2024

§ 406.034’s source at texas​.gov