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Comments to Proposed TDI DWC Chapter 180 rules

October 24, 2011                                                             Bulletin 2011-No. 01


John D. Pringle has commented by letter on the proposed Texas Department of Insurance, Division of Workers’ Compensation (DWC) Chapter 180 rules and amendments which provide for the unannounced on-site visits by DWC staff to obtain documents and other information without a search warrant.


A portion of the comments from page 2 of the letter are set out below:


            The Texas Constitution, Article I, Section 9, Searches and Seizures, provides:


The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


Tex. Const. Art. 1, § 9. The Texas Constitution’s Bill of Rights is absolute.


            Article I, section 29 of the Texas Constitution states:


To guard against transgressions of the high powers herein delegated, we declare that everything in the “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


            The constitutional prohibition is absolute when it applies to the right to worship, the right to free speech, the freedom from unreasonable search and seizure, the guaranty of due course of law, and the other protections of the Bills of Rights. Robinson v. Crown Cork & Seal Co. 335 S.W.3d 126, 147 (Tex. 2010).


            Unannounced on site visits to obtain records relating to the person’s participation in the workers’ compensation system violates the Texas Constitution’s Bill of Rights. Because proposed rules 180.3, 180.4 and 108.5 are based on the statute which is unconstitutional, the rules fall with the statute. Passel v. Ft. Worth Independent School Dist., 440 S.W.2d 61, 64 (Tex. 1969). The Division may not conduct any unannounced on-site visit for the purpose of conducting an audit, inspection, and obtaining records.


To see the entire letter click on the link here.





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