Texas workers' comp exclusive remedy, Labor Code §408.001: the statute text explained

The short answer

Texas Labor Code §408.001(a) says "Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee" (Lab. Code §408.001). Texas generally lets an employer choose whether to carry that coverage: except for public employers and as otherwise provided by law, an employer may elect to obtain it (§406.002). When an employee who is not covered sues the employer over a work injury, §406.033 says three common-law defenses are not available (§406.033). An attorney can tell you how these rules apply to a specific situation.

This entry provides general informational guidance and is not legal advice.

Key facts (as of 2026-10-27)

• Benefits are the exclusive remedy against a covered employer. For an employee covered by workers' compensation insurance coverage, recovery of benefits is the exclusive remedy against the employer or an agent or employee of the employer for a work-related injury or death (§408.001(a)).
• One stated exception, for some deaths. The section does not prohibit the surviving spouse or heirs of the body of a deceased employee from recovering exemplary damages when the death was caused by an intentional act or omission of the employer or by the employer's gross negligence (§408.001(b)).
• Coverage is generally a choice. Except for public employers and as otherwise provided by law, a Texas employer may elect to obtain workers' compensation insurance coverage, through a licensed insurance company or through self-insurance as the Act provides (§§406.002, 406.003).
• The term "non-subscriber". TDI's Division of Workers' Compensation calls employers that choose not to provide coverage non-subscribers (TDI-DWC).
• Employees must be told. An employer must notify each employee whether or not it has workers' compensation insurance coverage, including new employees at the time they are hired (§406.005).
• Lawsuits against an employer without coverage. In that kind of lawsuit, contributory negligence, assumed risk and a fellow employee's negligence are not defenses, and the plaintiff must prove negligence of the employer or its agent or servant (§406.033(a), (d)).
• Last amended. The history line for §408.001 lists Acts 2005, 79th Leg., ch. 265 (H.B. 7) as its most recent amendment; §406.033 lists Acts 2011, 82nd Leg., R.S., ch. 1108 (S.B. 1714); §406.002 lists no amendment since its 1993 enactment.

What does §408.001 say?

The official text of Tex. Lab. Code §408.001, as published by the Texas Legislature:

Sec. 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES. (a) Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

(b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.

(c) In this section, "gross negligence" has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.

(d) A determination under Section 406.032, 409.002, or 409.004 that a work-related injury is noncompensable does not adversely affect the exclusive remedy provisions under Subsection (a).

Source: Tex. Lab. Code §408.001, statutes.capitol.texas.gov. Text last checked October 27, 2026. The section is part of the Texas Workers' Compensation Act, the name §401.001 gives to this subtitle of the Labor Code (§401.001).

What does it mean in plain language?

• It is about the employer, not everyone. Subsection (a) names the employer and "an agent or employee of the employer". It applies to an employee "covered by workers' compensation insurance coverage" and to a legal beneficiary, for a work-related injury or a death.
• Benefits are the remedy against those people. For a covered employee, the statute makes recovery of workers' compensation benefits the exclusive remedy against the employer, and its agents and employees, for that injury or death.
• The exception in subsection (b) is narrow by its words. It covers exemplary damages, sought by the surviving spouse or heirs of the body of an employee who died, when the death was caused by the employer's intentional act or omission or gross negligence. Subsection (c) points to the definition of "gross negligence" in Civil Practice and Remedies Code §41.001(11): an act or omission "which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others" and "of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others" (CPRC §41.001).
• A "noncompensable" finding does not change the exclusive remedy. Subsection (d) says that if an injury is found noncompensable under §406.032 (exceptions such as an injury that occurred while the employee was in a state of intoxication, or one where the employee's horseplay was a producing cause), §409.002 (failure to notify the employer of the injury) or §409.004 (failure to file a claim for compensation), the exclusive remedy in subsection (a) is not adversely affected (§406.032; §§409.002, 409.004).
• Courts have also read the section. This entry quotes only the statute. It states no case law about when the exclusive remedy does or does not apply.

What about someone other than the employer?

Section 408.001(a) names the employer and its agents and employees. A separate section of the Act addresses claims against others. The official text of §417.001(a):

(a) An employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay damages for an injury or death that is compensable under this subtitle and may also pursue a claim for workers' compensation benefits under this subtitle.

Source: Tex. Lab. Code §417.001. Subsection (b) of the same section says that if a benefit is claimed, the insurance carrier is subrogated to the rights of the injured employee, and it sets out how the carrier is reimbursed from an amount recovered from the third party. Whether §417.001 applies in a given case is a question for an attorney.

What if the employer has no workers' compensation coverage?

Coverage is generally elective (§406.002)

The official text of §406.002:

Sec. 406.002. COVERAGE GENERALLY ELECTIVE. (a) Except for public employers and as otherwise provided by law, an employer may elect to obtain workers' compensation insurance coverage.

(b) An employer who elects to obtain coverage is subject to this subtitle.

Source: Tex. Lab. Code §406.002. The words "as otherwise provided by law" leave room for other laws that require coverage in some situations; this entry does not list them. An employer may obtain coverage "through a licensed insurance company or through self-insurance as provided by this subtitle" (§406.003).

The term "non-subscriber" does not appear in the sections quoted here; it is the state agency's term. The Texas Department of Insurance, Division of Workers' Compensation, says: "Employers that choose not to provide Texas workers’ compensation coverage to their employees are known as non-subscribers." (TDI-DWC, non-subscriber information)

Under §406.005, an employer must notify each employee whether or not it has coverage, must notify a new employee of the existence or absence of coverage at the time the employee is hired, and must post a notice of whether it has coverage at conspicuous locations at its place of business (§406.005(a)-(c)). An employer that obtains coverage, or whose coverage is terminated or canceled, must notify each employee not later than the 15th day after that takes effect (§406.005(d)).

Defenses and proof in a lawsuit against an employer without coverage (§406.033)

The official text of §406.033(a) through (f):

Sec. 406.033. COMMON-LAW DEFENSES; BURDEN OF PROOF. (a) In an action against an employer by or on behalf of an employee who is not covered by workers' compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.

(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).

(c) The employer may defend the action on the ground that the injury was caused: (1) by an act of the employee intended to bring about the injury; or (2) while the employee was in a state of intoxication.

(d) In an action described by Subsection (a), the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.

(e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable.

(f) A cause of action described by Subsection (a) may not be waived by an employee after the employee's injury unless: (1) the employee voluntarily enters into the waiver with knowledge of the waiver's effect; (2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury; (3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and (4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.

Source: Tex. Lab. Code §406.033. Subsection (g) adds that the waiver provisions required under subsection (f) must be conspicuous and appear on the face of the agreement, in a type larger than the body of the agreement or in contrasting colors.

In plain language:

• Three defenses are unavailable. In a lawsuit of the kind subsection (a) describes, the employer cannot defend on the ground that the employee was contributorily negligent, assumed the risk, or was hurt by a fellow employee's negligence.
• Two defenses are stated. Subsection (c) lets the employer defend on the ground that the injury was caused by an act of the employee intended to bring it about, or while the employee was intoxicated.
• The employee still has to prove negligence. Subsection (d) puts on the plaintiff the burden of proving negligence of the employer or of its agent or servant acting within the general scope of employment. The section does not make an employer without coverage responsible for every injury at work.
• Waivers. An agreement signed before an injury or death to waive the cause of action is void and unenforceable. A waiver signed after an injury is allowed only if all four conditions in subsection (f) are met and the waiver provisions are conspicuous under subsection (g).

When was this checked, and can it change?

The statute text above was last checked on October 27, 2026, against the official text published by the Texas Legislature, and the TDI-DWC quotation against TDI's page on the same date. The Legislature can amend a statute in any session, and courts can refine how a rule is applied. The Legislature convenes in regular session on the second Tuesday in January of each odd-numbered year (Gov't Code §301.001), so the next regular session begins on January 12, 2027. This entry is scheduled to be rechecked against the official text by April 2027 and again after the 2027 regular session ends.

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