Texas is the only state that lets private employers opt out of workers’ compensation insurance entirely. If your employer is a “non-subscriber,” a Texas non-subscriber work injury follows a different legal path than a standard workers’ comp claim: you may be able to sue your employer for negligence, and the employer loses several standard defenses. But the deadlines buried in your employer’s injury benefit plan can be far shorter than the two-year deadline for filing a lawsuit. This guide explains how to check your employer’s coverage status and the first steps to protect yourself.
Can I Sue My Employer for a Work Injury in Texas?
It depends on whether your employer carries workers’ compensation insurance.
Under Texas Labor Code § 406.002, workers’ compensation coverage is elective for most private employers. Employers that buy coverage are called subscribers. Employers that opt out are called non-subscribers.
If your employer is a subscriber, workers’ compensation benefits are generally the exclusive remedy for a work injury under Texas Labor Code § 408.001 — you typically cannot also sue your employer for negligence over the same injury.
If your employer is a non-subscriber, the picture changes. Texas Labor Code § 406.033 allows an injured employee to bring a negligence action against a non-subscribing employer for personal injuries sustained in the course and scope of employment. This is a regular civil lawsuit, not a workers’ comp claim — which is why learning how personal injury claims work matters here. The trade-off: under § 406.033(d), you must prove the negligence of the employer or of its agent acting within the scope of employment. The law strips the employer of several powerful defenses, which the next section covers, but it does not hand you an automatic win.
Hypothetical example: A warehouse associate in Garland hurts her back when a poorly maintained forklift tips a pallet onto her. Her employer does not carry workers’ compensation. She may bring a negligence claim — but she still has to prove the employer was negligent, for instance by showing it failed to maintain the forklift.
How Do I Find Out If My Employer Is a Non-Subscriber?
Many workers only learn their employer’s status after they are hurt. Here is how to check workers’ comp coverage in Texas, starting with the fastest:
1. Look for the posted notice. Non-subscribers must post a notice of no coverage in the workplace in English, Spanish, and any other language needed to reach the workforce, placed where employees see it regularly. They must also give written notice of no coverage to new employees at hire. Check break rooms, time-clock areas, and your onboarding paperwork.
2. Search TDI’s coverage database. The Texas Department of Insurance, Division of Workers’ Compensation (DWC) runs TXCOMP, an online system where you can verify an employer’s workers’ compensation coverage. Select “Locate Covered Employer,” enter the employer’s name and the date of injury, and review the results.
3. Check the public non-subscriber list. DWC publishes a monthly report of private employers that have opted out, drawn from DWC Form-005 filings, available through the Texas open data portal (data.texas.gov).
4. Ask DWC directly. Email coverage.verification@tdi.texas.gov with the employer’s name, address, and your date of injury, or call (512) 804-4345. DWC generally responds within one business day.
5. Know what the employer was supposed to file. Non-subscribers must file DWC Form-005, the Employer’s Notice of No Coverage or Termination of Coverage, with DWC each year between February 1 and April 30 — and also within 30 days of hiring their first employee or within 10 days of terminating coverage.
DFW tip: large warehouse, logistics, and retail employers sometimes subscribe at some locations and not others — verify the specific entity and location where you work.
What Defenses Does a Non-Subscriber Lose?
This is the core of Texas Labor Code § 406.033. In a lawsuit against a Texas non-subscriber employer, the employer may not argue any of the following:
- Contributory negligence — that your own carelessness caused or contributed to the injury.
- Assumption of risk — that you accepted the job’s dangers by taking the work.
- Fellow-servant negligence — that a coworker’s carelessness, not the employer’s, caused the injury.
The Texas Supreme Court confirmed in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), that a non-subscribing employer gets no jury question on the worker’s comparative responsibility — the worker’s fault can neither defeat nor reduce the recovery.
The employer does keep two defenses under § 406.033(c): it may argue the injury was caused by an act you intended to bring about the injury, or that you were intoxicated at the time. And you must still prove the employer’s negligence — the lost defenses remove the employer’s shields, not your burden of proof.
How Long Do I Have?
Two different clocks may apply.
The lawsuit deadline. Under Texas Civil Practice and Remedies Code § 16.003(a), a personal injury lawsuit must generally be brought not later than two years after the cause of action accrues — usually the injury date. Miss it and a court can dismiss the case regardless of its merits.
The plan deadlines. Many non-subscribers offer a private injury benefit plan instead of workers’ compensation. These plans are not workers’ comp, and they set their own reporting and claim deadlines — sometimes measured in days, not years. A worker who waits months to report, assuming the two-year lawsuit deadline is the only one that matters, can lose plan benefits and weaken the negligence claim. Find out which deadlines apply to you early, and get copies of every document you signed at hire: the only way to know your plan’s deadlines is to read them.
What If I Signed Papers at Hire, or the Plan Requires Arbitration?
Waivers. Under § 406.033(e), an employee cannot waive the negligence cause of action before the injury — any such agreement is void. After an injury, a waiver is valid only under strict conditions in § 406.033(f)–(g): voluntary and knowing, signed no earlier than the tenth business day after the initial injury report, preceded by a medical evaluation from a non-emergency doctor, and written conspicuously. A stack of onboarding paperwork does not override these rules.
Arbitration. Many non-subscriber injury benefit plans include arbitration clauses that route disputes away from court. Whether a particular clause is enforceable depends on the specific agreement and the circumstances — there is no blanket rule. Arbitration changes the forum, not necessarily the underlying rights, but it can change pace, procedure, and appeal options significantly. Because this is fact-specific, have the actual documents reviewed rather than assuming what the clause does.
First Steps in the First 72 Hours
These are general information steps, not legal advice for any specific situation:
- Report the injury in writing. Tell a supervisor promptly and keep a dated copy of the report. Verbal reports get disputed; written ones do not.
- Get medical care promptly. Your health comes first, and medical records created close in time to the injury carry weight.
- Photograph the scene if it is safe. Hazards, equipment, lighting, and conditions change quickly after an incident.
- Collect your hire paperwork. Handbook acknowledgments, benefit plan summaries, arbitration agreements — gather everything you signed or received.
- Do not sign a post-injury waiver or release on the spot. These documents have strict legal requirements under § 406.033 — consider having an attorney review anything you are asked to sign after an injury.
Texas Non-Subscriber Work Injury FAQ
If my employer opted out, do I get any workers’ compensation benefits? No. A non-subscriber has no workers’ compensation coverage, so there is no comp claim to file. The path is a negligence lawsuit under § 406.033, or benefits under the employer’s private injury benefit plan if one exists.
What is an injury benefit plan, and is it the same as workers’ comp? No. It is a private program some non-subscribers create for injured workers — not regulated like workers’ compensation — with its own eligibility rules, benefit amounts, and deadlines. Read the plan documents rather than assuming they mirror workers’ comp.
Can my employer blame me for the accident? In a negligence lawsuit against a non-subscriber, Texas law bars the employer from arguing contributory negligence, assumption of risk, or a coworker’s negligence under § 406.033(a). The Texas Supreme Court confirmed in Kroger Co. v. Keng that the worker’s comparative fault cannot reduce the recovery. The employer may still dispute that it was negligent at all.
How can I check my employer’s coverage right now? Use DWC’s TXCOMP “Locate Covered Employer” search, look for the posted notice at work, check the public non-subscriber report, or email coverage.verification@tdi.texas.gov.
The Bottom Line on a Texas Non-Subscriber Work Injury
Texas gives private employers a choice no other state offers. A non-subscriber cannot hide behind the defenses most defendants rely on — but you still must prove negligence, and the plan deadlines can run out long before the two-year lawsuit deadline. Knowing your employer’s status early, reporting promptly, and keeping copies of everything you signed protects a claim.
If you were hurt at work in Texas and are unsure whether your employer subscribes, contact Aburas Law, LLC at 862-213-9093 or aburaslaw.com.
Attorney Advertising. This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Laws change and every situation is different. Please contact an attorney about your specific circumstances. Prior results do not guarantee a similar outcome.
Reviewed by Ahmad Aburas, Esq.
