After a workplace injury, you might be wondering: Can I sue my employer?
In Texas, the answer depends on a choice your employer made long before your injury. That decision determines your options for legal recourse and the level of financial support available to you and your family.
Texas Employers Can Opt Out of Workers’ Compensation
Every other state requires private employers to carry workers’ compensation coverage. Texas does not.
Employers here are free to opt out entirely, and many do, particularly smaller companies and subcontractors looking to avoid insurance premiums. Employers who have opted out are called non-subscribers, and if yours is one of them, your legal path looks very different from what most people expect.
Before anything else, find out whether your employer subscribes. Subscribing employers are required to post notice in the workplace. You can also check the Texas Department of Insurance Division of Workers’ Compensation database, or simply ask an attorney to confirm it for you.
Can You Sue a Workers’ Compensation Employer in Texas?
If your employer carries workers’ comp, suing them directly is generally not an option. Under Tex. Lab. Code § 408.001, the system works as an exclusive remedy; benefits without fault, but no civil lawsuit in most cases.
The exception is gross negligence that kills someone. Under § 408.001(b), family members may still bring a wrongful death claim against a subscribing employer in that situation.
For everyone else, workers’ comp is the path. It covers part of your lost wages and your medical treatment. What it does not cover is pain and suffering, mental anguish, or what the injury has cost you long term.
Suing a Non-Subscriber Employer
If your employer opted out, you are not stuck in the workers’ comp system. Under Tex. Lab. Code § 406.033, you can sue them directly and go after the full range of damages.
What makes non-subscriber cases particularly powerful is what the law removes from the employer’s arsenal. They cannot argue you caused your own injury, blame a coworker, or say you assumed the risk. Those arguments, the ones that defeat most injury claims, are not available to them.
Our non-subscriber work injury lawyers handle these cases regularly. When an employer cannot hide behind those defenses, the facts of what actually happened take over. That is where we do our best work.
What Must Be Proven to Win a Non-Subscriber Case?
Removing those defenses does not remove your burden of proof. You still must establish that your employer was negligent by showing four things:
- Your employer owed you a duty to provide a safe workplace
- They breached that duty through an act or failure to act
- That breach is what caused your injury
- You suffered real, compensable harm as a result
Most disputes focus on causation, whether the employer’s unsafe conduct is what actually led to the accident, because employers often argue the injury was unrelated or unavoidable. Strong evidence, early investigation, and a legal team that prepares cases for trial are what help connect the employer’s actions to the harm you suffered.
What Damages Can You Recover by Suing a Non-Subscriber Employer?
The scope of damages is one of the clearest advantages of a non-subscriber lawsuit, becuase workers can recover:
Economic Damages:
- Past and future medical expenses
- Diminished earning capacity
Non-Economic Damages:
- Physical pain and suffering
- Mental anguish and emotional distress
- Physical impairment affecting your daily life and activities
- Disfigurement, including permanent scarring or changes to your appearance
Workers’ compensation does not compensate for any non-economic damages. For workers with serious injuries, those non-economic losses are often where the greatest harm lives.
To understand how Dallas workers’ compensation non-subscriber lawsuits are evaluated and what your specific situation may support, we welcome a direct conversation.
Wrongful Death and Survival Claims Against Non-Subscriber Employers
A fatal workplace injury creates immediate consequences for the family and the estate. Texas law recognizes this harm and provides two separate claims that address different parts of the loss:
Wrongful Death Claim
A wrongful death claim allows the surviving spouse, children, or parents to recover for the losses they experience. These losses include financial support, household contributions, and the relationship itself.
Survival Claim
A survival claim belongs to the estate. It addresses the harm the worker experienced before death, including medical expenses, lost income, and conscious pain and suffering.
These claims often proceed together. They require careful coordination, clear communication with the family, and a detailed understanding of the events leading to the injury.
How Long Do You Have to Sue a Non-Subscriber Employer in Texas?
Under Tex. Civ. Prac. & Rem. Code § 16.003, you have two years from the date of injury to file suit. Wrongful death claims follow the same window from the date of death.
This deadline is firm. Acting sooner means evidence is preserved and your case starts stronger.
Talk to Winocour Law About Your Rights After a Work Injury
Whether your situation requires navigating a complex workers’ comp claim or filing a direct lawsuit against a negligent non-subscriber, you do not have to settle for the bare minimum or a lowball corporate settlement plan.
Winocour Law will help you understand which path is right for your situation and fight to get you what you are owed. Contact us today for a free consultation.