Court of Appeals of Texas, Beaumont.

Shane E. GRAY and the Texas Department of Criminal Justice, Appellants.

v.

VERNON HILL, JR., Appellee

No. 09-96-026CV.

|

May 1, 1997.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

BURGESS.

*1 Vernon Hill, Jr. is an employee of the Texas Department of Criminal Justice-Institutional Division (TDCJ) working at the Mark Stiles Unit. Shane Gray is a TDCJ employee working at the Larry Gist State Jail. Hill, in uniform, was reporting to work when Gray’s vehicle, a TDCJ truck, struck Hill’s vehicle. Hill and Gray were traveling on FM 3514. Hill sued Gray and the TDCJ for personal injuries. Gray and TDCJ answered, asserting several defenses including that the workers’ compensation system was Hill’s exclusive remedy due to the terms of the “access doctrine.”¹ Gray and TDCJ tendered a jury question on that issue,² but the trial court refused to submit it. The jury found only Gray negligent. They awarded $70,797 as damages. The court entered judgment against TDCJ³ for $77,026.41.⁴ Both Gray and TDCJ filed a Motion for New Trial and Motion for Judgment Notwithstanding the Verdict which raised, among other things, the court’s failure to submit the proposed jury question. Hill responded alleging TDCJ had not produced evidence he was in the course and scope of his employment and that a valid workers’ compensation policy was in effect, on the date and time of the incident, that covered Hill.

In two points of error TDCJ alleges the trial court erred in refusing to (1) submit the jury question on whether Hill’s injury was received in the course and scope of employment and (2) grant the motion for new trial and j.n.o.v.

PROOF OF WORKERS’ COMPENSATION COVERAGE

Tex. Lab.Code Ann. § 501.001(5)(A) (Vernon 1996) defines an employee as a person who is in the service of the state pursuant to an election, appointment, or express oral or written contract of hire and section (6) says “State agency” includes a department, board, commission, or institution of this state. It is uncontroverted Hill is an employee of TDCJ, an agency of the state. Tex. Lab.Code Ann. § 501.021 (Vernon 1996) Workers’ Compensation Coverage for Employees, declares: “An employee with a compensable injury is entitled to compensation by the director as provided by this chapter.” Tex. Lab.Code Ann. § 501.001(3) (Vernon 1996) says “director” is the director of the workers’ compensation division of the attorney general’s office. Tex. Lab.Code Ann. § 501.002(b) (Vernon 1996) states: “For the purposes of this chapter and Chapter 451, the individual state agency shall be considered the employer” and section 501.002(c) states: “For the purpose of applying the provisions listed by Subsection (a) to this chapter, “insurer” or “employer” means “state,” “division,” “director,” or “state agency,” as applicable. Lastly, Tex. Lab.Code Ann. § 501.023 (Vernon 1996) states: “The state is self-insuring with respect to an employee’s compensable injury.”

There is no requirement, as Hill avers, that an employer show “a valid workers’ compensation was in effect; an employer only needs to show the employee was covered. Pederson v. Apple Corrugated Packaging, Inc., 874 S.W.2d 135 (Tex.App.-Eastland 1994, writ denied). It was uncontroverted Hill is an employee of TDCJ, an agency of the state. Consequently, as a matter of law Hill was covered by workers’ compensation insurance coverage. Thus, if he was in the course and scope of his employment, his exclusive remedy was recovery of workers’ compensation benefits. Tex. Lab.Code Ann. § 408.001 (Vernon 1996); Darensburg v. Tobey, 887 S.W.2d 84, 86 (Tex.App.-Dallas 1994, writ denied).

COURSE AND SCOPE OF EMPLOYMENT

*2 Employees injured while going to or from work are generally not in the course of employment for the purposes of workers’ compensation. Texas Compensation Ins. Co. v. Matthews, 519 S.W.2d 630, 631 (Tex.1974). The “access doctrine” is an exception to this rule. Id. Case law has defined the doctrine so that an employee is deemed to be in the course of his employment within a reasonable margin of time necessary for passing to and from the place of his work both before and after his actual hours of service; that an injury received within that period is ordinarily held to have been sustained in the course of employment if it occurs at a place intended by the employer for use by the employee in passing to and from the actual place of service, on premises owned or controlled by the employer, or so closely related to the employer’s premises as to be fairly treated as a part thereof. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922) (considered the leading case on the subject); Dickson v. Silva, 880 S.W.2d 785 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Bordwine v. Texas Employers’ Ins. Ass’n, 761 S.W.2d 117 (Tex.App.-Houston [14th Dist.] 1988, writ denied); Turner v. Texas Employers’ Ins. Ass’n, 715 S.W.2d 52 (Tex.App.-Dallas 1986, writ ref’d n.r.e.); Texas Employers’ Ins. Ass’n v. Lee, 596 S.W.2d 942 (Tex.Civ.App.-Waco 1980, no writ). “[W]hether the injury was received by the employee under those circumstances is usually a question of fact governed and controlled by the particular facts of each case.” Lee, 596 S.W.2d at 946.

The trial court may decline to submit a relevant issue only if there is no evidence supporting it. When evidence offered to prove a vital fact is so weak it does no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. The test is if reasonable minds cannot differ that the evidence supporting the existence of a vital fact lacks probative force, it is the legal equivalent of no evidence. However, there is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex.1983)(citing Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965); Seideneck v. Cal Bayreuther Assoc., 451 S.W.2d 752, 755 (Tex.1970); and Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974)). We must review the evidence in the light most favorable to TDCJ and dismiss all evidence and inferences to the contrary. Rao v. Rodriguez, 923 S.W.2d 176 (Tex.App.-Beaumont 1996, no writ).

*3 Hill argues that proof FM 3514 was a public road generally used by the public was conclusively established and further, if there is proof a road is accessible to the public, the access doctrine does not apply, relying upon Thompson v. Employee’s Lloyds, 292 S.W.2d 643, 646 (Tex.Civ.App.-Dallas 1956, writ ref’d n.r.e.). Hill’s first argument can only be sustained if there is “no evidence” to the contrary. As to Hill’s second argument, Thompson, simply does not hold what Hill alleges. The real issue is whether there was “some evidence” that FM 3514 was “controlled by the employer, or so closely related to the employer’s premises as to be fairly treated as a part thereof”; that the road was generally used by the public is only a factor. Applying the proper standard, we find the following evidence:

1) Hill testified:

(a) at the “point in time” of the accident, the public was not generally using the road.

(b) FM 3514 was the only way to get to the Stiles Unit.

(c) inmates cut grass and work along the road.

(d) it was not unusual for TDCJ employees to cross the road to go to the open field.

2) DPS Trooper Gilliam testified:

(a) the road was used predominately by TDCJ employees.

(b) there are numerous “No Parking” signs on the road.

3) Gray testified:

(a) FM 3514 was the only access to the jail units.

(b) inmates maintain the grounds surrounding FM 3514.

(c) officers search for contraband along FM 3514.

(c) guards are advised to be suspicious of any activities that occur on FM 3514.

(d) the road is used mainly by TDCJ, not generally by the public.

(e) there are in excess of 30 “No Parking” signs on both sides of the road.

4) TDCJ Officer Pitts testified guards were told to report any suspicious vehicles on the side of the road.

Under this standard, there is more than a scintilla of evidence that, at the time of the accident, FM 3514 was controlled by TDCJ or so closely related to their premises as to be fairly treated as a part thereof. The trial court’s refusal to submit the issue is error. Southwestern Bell Tel. Co. v. Thomas, 554 S.W.2d 672 (Tex.1977). Point of error one is sustained. Point of error two, as it relates to the trial court’s failure to grant the motion for new trial, vis a vis, the failure to submit the jury question, is also sustained.

Based upon our earlier discussion and reviewing all the evidence, TDCJ did not prove, as a matter of law, that Hill was in the course and scope of his employment. Therefore, the trial court did not err in denying the motion j.n.o.v. In that regard, point of error two is overruled. The judgment is reversed and remanded.

REVERSED AND REMANDED.

	Footnotes
1		Hill does not argue the access doctrine can not be applied defensively to bar a negligence claim since such a contention was rejected almost 75 years ago by the Texas Supreme Court in Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S.W. 76, 78-79 (Tex.1922).
2		Did Vernon Hill receive an injury … in the course of his employment … ? …. The term “injury in the course of employment” means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs of business of his employer, whether upon the employer’s premises or elsewhere. “Employment” includes the actual doing of the work by the worker, and a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be performed. If an employee be injured while passing, with the express or implied consent of the employer to and from his work place over the employer’s premises, or over the premises of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of employment as though it had happened while the employee was engaged in his work at the place of its performance.
3		Although TDCJ was the only party named in the Judgment, Gray was included in the notice of appeal and continues to be referred to as an “appellant”.
4		This is the damage award plus court costs and pre-judgment interest.