LABOR CODE
TITLE 4. EMPLOYMENT SERVICES AND UNEMPLOYMENT
SUBTITLE A. TEXAS UNEMPLOYMENT COMPENSATION ACT
CHAPTER 201. UNEMPLOYMENT COMPENSATION ACT--GENERAL PROVISIONS
SUBCHAPTER A. SHORT TITLE; APPLICATION OF SUNSET ACT
§ 201.001. SHORT TITLE. This subtitle may be cited as
the Texas Unemployment Compensation Act.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. GENERAL DEFINITIONS
§ 201.011. GENERAL DEFINITIONS. In this subtitle:
(1) "Base period" means:
(A) the four consecutive completed calendar
quarters, prescribed by the commission, in the five consecutive
completed calendar quarters preceding the first day of an
individual's benefit year; or
(B) for an individual precluded because of a
medically verifiable injury or illness from working during a major
part of a calendar quarter of the period that would otherwise be the
individual's base period under Paragraph (A), the first four
calendar quarters of the five consecutive calendar quarters
preceding the calendar quarter in which the illness began or the
injury occurred if the individual files an initial claim for
benefits not later than 24 months after the date on which the
individual's injury or illness began or occurred.
(2) "Benefit" means the money payable under this
subtitle to an individual because of the individual's unemployment.
(3) "Benefit amount" means benefits an individual is
entitled to receive for one benefit period of total unemployment.
(4) "Benefit period" means the seven consecutive
calendar days ending at midnight on Saturday and is the period for
which entitlement to benefits is determined.
(5) "Benefit year" means the 52 consecutive calendar
weeks beginning with the week for which an individual files a valid
initial claim for benefits.
(6) "Calendar quarter" means a period of three
consecutive calendar months ending on:
(A) March 31, June 30, September 30, or December
31; or
(B) the dates prescribed by rule of the
commission.
(7) "Chargeback" means the benefits charged to an
employer's account under Section 204.021.
(8) "Commission" means the Texas Workforce
Commission.
(9) "Compensation fund" means the unemployment
compensation fund.
(10) "Contribution" means a tax payment under this
subtitle to the compensation fund.
(11) "Employing unit" means a person who, after
January 1, 1936, has employed an individual to perform services for
the person in this state.
(12) "Employment office" means a free public
employment office operated by this state or maintained as a part of
a state-controlled system of public employment offices. The term
includes a branch office.
(13) "Initial claim" means a notice filed under
Section 208.001(a) to establish a benefit year by an individual who
does not have a benefit year in effect at the time the notice was
filed.
(14) "Institution of higher education" means:
(A) a college or university in this state; or
(B) a public or other nonprofit educational
institution that:
(i) admits as regular students only
individuals with a certificate of graduation or equivalent
credentials;
(ii) is legally authorized to provide an
educational program beyond high school; and
(iii) provides an educational program:
(a) for which the institution awards a
bachelor's or higher degree;
(b) that is acceptable for full credit
toward a bachelor's or higher degree; or
(c) that trains a student for the
gainful practice of a recognized occupation.
(15) "Mail" means the United States Postal Service or
any other method approved by the commission to provide actual
notice, including an electronic transfer system.
(16) "Reimbursement" means a payment made in
accordance with Chapter 205.
(17) "Reimbursing employer" means an employer making
payments in accordance with Chapter 205.
(18) "State" means a state of the United States,
Puerto Rico, the District of Columbia, or the Virgin Islands.
(19) "Taxed employer" means an employer who pays a
contribution under this subtitle.
(20) "Temporary employee" means an individual
employed by a temporary help firm for the purpose of being assigned
to work for the clients of a temporary help firm.
(21) "Temporary help firm" means a person who employs
individuals for the purpose of assigning those individuals to work
for the clients of the temporary help firm to support or supplement
a client's work force during employee absences, temporary skill
shortages, seasonal work loads, special assignments and projects,
and other similar work situations.
(22) "United States" includes, in a geographic
context, each state.
(23) "Valid claim" means a claim filed by an
unemployed individual who has received the wages necessary to
qualify for benefits.
(24) "Warrant" means a written payment order or an
electronic payment order that is a part of an electronic fund
transfer system approved by the commission.
(25) "Week" means seven consecutive calendar days as
prescribed by the commission.
(26) "Indian tribe" has the meaning assigned by
Section 3306(u), Federal Unemployment Tax Act (26 U.S.C. Section
3306), as amended. A reference in this subtitle to an Indian tribe
includes a tribal unit, a subdivision or subsidiary of an Indian
tribe, and a business wholly owned by an Indian tribe.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 9.23(a), eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 518, § 1, eff. June 11, 2001; Acts
2003, 78th Leg., ch. 817, § 10.13, eff. Sept. 1, 2003.
§ 201.012. DEFINITION OF MISCONDUCT. (a) "Misconduct"
means mismanagement of a position of employment by action or
inaction, neglect that jeopardizes the life or property of another,
intentional wrongdoing or malfeasance, intentional violation of a
law, or violation of a policy or rule adopted to ensure the orderly
work and the safety of employees.
(b) The term "misconduct" does not include an act in
response to an unconscionable act of an employer or superior.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER C. DEFINITION OF EMPLOYER
§ 201.021. GENERAL DEFINITION OF EMPLOYER. (a) In
this subtitle, "employer" means an employing unit that:
(1) paid wages of $1,500 or more during a calendar
quarter in the current or preceding calendar year; or
(2) employed at least one individual in employment for
a portion of at least one day during 20 or more different calendar
weeks of the current or preceding calendar year.
(b) The definition provided by this section does not apply
to an employing unit covered by Section 201.023 or to farm and ranch
labor covered by Section 201.028.
(c) An individual who performs a service in this state for
an employing unit that maintains two or more separate
establishments in this state is employed by a single employing unit
for purposes of this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.022. EFFECT OF BUSINESS ACQUISITION. In this
subtitle, "employer" also means an individual or employing unit
that acquires the organization, trade, or business of another, or
substantially all of the assets thereof, of another that was an
employer subject to this subtitle at the time of the acquisition.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.023. TAX-EXEMPT NONPROFIT ORGANIZATION. In this
subtitle, "employer" also means an employing unit that:
(1) is a nonprofit organization under Section
501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Section
501(c)(3));
(2) is exempt from income tax under Section 501(a),
Internal Revenue Code of 1986 (26 U.S.C. Section 501(a)); and
(3) employed at least four individuals in employment
for a portion of at least one day during 20 or more different
calendar weeks during the current year or during the preceding
calendar year.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.024. ELECTION TO BE EMPLOYER. In this subtitle,
"employer" also means an employing unit that has elected to become
an employer under Section 205.001, 205.002, 206.002, or 206.003.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.025. EMPLOYER UNDER FEDERAL LAW. In this
subtitle, "employer" also means:
(1) an employing unit that is liable for the payment of
taxes under the Federal Unemployment Tax Act (26 U.S.C. Section
3301 et seq.) for the current calendar year; or
(2) an employing unit that the Federal Unemployment
Tax Act (26 U.S.C. Section 3301 et seq.) requires to be an employer
under this subtitle as a condition for approval of this subtitle for
full tax credit against the tax imposed by the Federal Unemployment
Tax Act.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.026. STATE; POLITICAL SUBDIVISION. In this
subtitle, "employer" also means a state, a political subdivision of
a state, or an instrumentality of a state or political subdivision
of a state that is wholly owned by one or more states or political
subdivisions of one or more states.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.027. EMPLOYER OF DOMESTIC SERVICE
WORKER. (a) In this subtitle, "employer" also means an employing
unit that paid cash wages of $1,000 or more during a calendar
quarter in the current or preceding calendar year for domestic
service in a private home, local college club, or local chapter of a
college fraternity or sorority.
(b) An employer subject to this section who is not otherwise
considered an employer under this subtitle, annually, may report
quarterly wages and pay contributions. An employer who elects to
report wages and pay contributions under this section must make the
election not later than December 31 of the year before the first
calendar year reported.
(c) Contributions paid as provided by Subsection (b) become
due and are required to be reported and paid by each employer not
later than January 31 with respect to wages for employment paid in
the preceding calendar year. For a rate taking effect under Section
204.041(c) during the preceding calendar year, the commission shall
estimate the rate, subject to a correction when a final computation
is made as provided by Section 204.047(c).
(d) An employer who elects to report wages and pay
contributions annually shall file, on the request of the
commission, reports at other times as necessary to adjudicate a
claim or to establish wage credits.
(e) With respect to an employer who reports wages and pays
contributions annually under this section, any penalty or interest
imposed on the employer shall be computed in the same manner as for
other types of employment.
(f) An election by an employer under this section is not
revocable by the employer before the second anniversary of the date
of the election.
(g) An employer under this section is not an employer for
wages paid for a service other than domestic service unless the
employer is treated as an employer for that service under another
provision of this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 487, § 1, eff. Sept. 1, 2001.
§ 201.028. EMPLOYER OF FARM AND RANCH LABORER. (a) In
this subtitle, "employer" also means an employing unit that paid
wages for, or employed individuals in, farm and ranch labor in
accordance with this section, Section 201.047, or Section 204.009.
(b) In this section, an employer shall not be treated as an
employer for wages paid for a service other than service performed
by:
(1) a seasonal worker employed on a truck farm,
orchard, or vineyard;
(2) a farm and ranch laborer who is a migrant worker;
or
(3) a seasonal worker who:
(A) works for a farmer, ranch operator, or labor
agent who employs migrant workers; and
(B) does the same work at the same time and
location as the migrant workers.
(c) Subsection (b) does not apply if the employer is an
employer with respect to farm and ranch labor performed under
Section 201.047(a)(4).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.029. TEMPORARY HELP FIRM. For purposes of this
subtitle, a temporary help firm is the employer of an individual
employed by the firm as a temporary employee.
Added by Acts 1995, 74th Leg., ch. 76, § 9.23(b), eff. Sept. 1,
1995.
§ 201.030. STAFF LEASING SERVICES COMPANY. For the
purposes of this subtitle, "staff leasing services company" has the
meaning assigned by Section 91.001.
Added by Acts 1997, 75th Leg., ch. 1379, § 20, eff. Sept. 1,
1997.
SUBCHAPTER D. DEFINITION OF EMPLOYMENT
§ 201.041. GENERAL DEFINITION OF EMPLOYMENT. In this
subtitle, "employment" means a service, including service in
interstate commerce, performed by an individual for wages or under
an express or implied contract of hire, unless it is shown to the
satisfaction of the commission that the individual's performance of
the service has been and will continue to be free from control or
direction under the contract and in fact.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.042. SERVICE OF DRIVER OR SALESMAN. In this
subtitle, "employment" includes service:
(1) as an agent-driver or commission-driver who
delivers a meat product, vegetable product, fruit product, bakery
product, laundry, dry cleaning, or beverage except milk, if:
(A) the service is performed for remuneration;
(B) the employment contract provides that the
individual personally performs substantially all of the service;
(C) the individual performing the service does
not have a substantial investment in a facility used in the
performance of the service, other than in a facility for
transportation; and
(D) the service is part of a continuing
relationship with the principal and is not a single transaction; or
(2) of a traveling or city salesman, except as
provided in Section 201.070, an agent-driver, or a
commission-driver, who, on a full-time basis, obtains for the
individual's principal, except for sideline sales activities for
another person, orders from a wholesaler, retailer, contractor, or
operator of a hotel, restaurant, or similar establishment for
merchandise for resale or supplies for use in the business's
operation if:
(A) the employment contract provides that the
individual personally performs substantially all of the service;
(B) the individual does not have a substantial
investment in a facility used in the performance of the service,
except a facility for transportation; and
(C) the service is part of a continuing
relationship with the principal and is not a single transaction.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.043. LOCATION OF SERVICE. (a) In this subtitle,
"employment" includes service performed in this state or in and
outside this state if:
(1) the service is localized in this state; or
(2) the service is not localized in any state and some
of the service is performed in this state and:
(A) the base of operations is in this state, or
there is no base of operations, but the service is directed or
controlled from this state; or
(B) the base of operations or place from which
service is directed or controlled is not in a state in which a part
of the service is performed, and the residence of the person who
performs the service is in this state.
(b) In this subtitle, "employment" includes service
performed anywhere in the United States, including service
performed entirely outside this state, if:
(1) the service is not localized in a state;
(2) the service is performed by an individual who is
one of a class of employees who are required to travel outside this
state in performance of their duties; and
(3) the individual's base of operations is in this
state or, if there is no base of operations, the individual's
service is directed or controlled from this state.
(c) In this subtitle, "employment" includes service
performed entirely outside this state that is not included as
employment under Subsection (b) or Section 201.045 and for which
contributions are not required and paid under an unemployment
compensation law of another state if:
(1) the individual performing the service is a
resident of this state; and
(2) the commission approves the election of the
employing unit for which the individual performs the service that
the entire service of the individual is employment under this
subtitle.
(d) In this subtitle, "employment" includes service
performed after 1971 outside the United States by a citizen of the
United States as an employee of an American employer, if:
(1) the service was not performed in a contiguous
country with which the United States has an agreement relating to
unemployment compensation;
(2) the service is not considered employment under
Subsection (b) or (c) or Section 201.044 or 201.045 or the parallel
provisions of another state's law; and
(3) the employer:
(A) has its principal place of business in the
United States in this state;
(B) does not have a place of business in the
United States and is:
(i) an individual who is a resident of this
state;
(ii) a corporation that is organized under
the laws of this state; or
(iii) a partnership or a trust and the
number of partners or trustees who are residents of this state is
greater than the number who are residents of any one other state;
(C) has elected coverage in this state; or
(D) has failed to elect coverage in any state and
the individual has filed a claim for benefits based on the service
under the laws of this state.
(e) In this section, "American employer" means:
(1) an individual who is a resident of the United
States;
(2) a partnership, if two-thirds or more of the
partners are residents of the United States;
(3) a trust, if all of the trustees are residents of
the United States; or
(4) a corporation organized under the laws of the
United States or of a state.
(f) For the purposes of Subsection (b), service is localized
in a state if the service is performed entirely within the state or
the service performed outside the state is incidental to the
service performed in the state. In this section, a service that is
"incidental" includes a service that is temporary or that consists
of isolated transactions.
(g) If this state is the state of jurisdiction for services
covered as employment under Subsection (d), the employer shall so
notify its employees.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.044. SERVICE UNDER RECIPROCAL AGREEMENT. In this
subtitle, "employment" includes service that is performed by an
individual and that is covered by a reciprocal agreement under this
subtitle between the commission and the agency that administers
another state's or a federal unemployment compensation law if:
(1) under the agreement all service performed by the
individual for an employing unit is considered to be performed
entirely in this state; and
(2) the commission approves an election of the
employing unit for whom the service is performed under which the
entire service of the individual is considered employment subject
to this subtitle during the period covered by the election.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.045. SERVICE ON VESSEL OR AIRCRAFT. In this
subtitle, "employment" includes service performed on or in
connection with an American vessel or aircraft if:
(1) the service is employment under Section 3306(c),
Internal Revenue Code of 1986 (26 U.S.C. Section 3306(c)); and
(2) the operating office from which the vessel or
aircraft is ordinarily and regularly directed and controlled is in
this state.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.046. EMPLOYMENT TO ASSIST EMPLOYEE OR
AGENT. (a) An individual employed to perform or to assist in
performing the work of an employee or agent of an employing unit is
employed by that employing unit for purposes of this subtitle if the
employing unit has actual or constructive knowledge of the work.
(b) Subsection (a) applies without regard to whether the
individual is hired or paid directly by the employing unit or by the
employee or agent.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.047. FARM AND RANCH LABOR AS
EMPLOYMENT. (a) Farm and ranch labor is employment for the
purposes of this subtitle if the labor:
(1) is performed by a seasonal worker employed on a
truck farm, orchard, or vineyard;
(2) is performed by a migrant worker;
(3) is performed by a seasonal worker who:
(A) is working for a farmer, ranch operator, or
labor agent who employs a migrant worker; and
(B) is doing the same work at the same time and
location as the migrant worker;
(4) performed after 1986 and the laborer is employed
by an employing unit that:
(A) pays wages in cash of $6,250 or more for the
labor during a calendar quarter in the calendar year in which the
labor is performed or the calendar year preceding that year; or
(B) employs three or more individuals in farm and
ranch labor for a portion of at least one day during at least 20
different calendar weeks of the calendar year in which the labor is
performed or the calendar year preceding that year.
(b) Wages paid for services described in Subdivision
(a)(1), (2), or (3) are included in determining the wages paid for
the purpose of Subdivision (a)(4).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 9.24, eff. Sept. 1, 1995.
§ 201.048. SERVICE FOR INDIAN TRIBE. Except as provided
by Sections 201.063 and 201.067, in this subtitle, "employment"
includes service performed in the employ of an Indian tribe if the
services are excluded from the definition of employment under the
Federal Unemployment Tax Act (26 U.S.C. Section 3301 et seq.), as
amended, solely because of Section 3306(c)(7) of that Act.
Added by Acts 2001, 77th Leg., ch. 518, § 2, eff. June 11, 2001.
SUBCHAPTER E. EXCEPTIONS TO EMPLOYMENT
§ 201.061. SERVICE ELIGIBLE UNDER ACT OF CONGRESS. In
this subtitle, "employment" does not include service for which
unemployment compensation is payable under an unemployment
compensation system established by an Act of Congress.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.062. SERVICE UNDER ARRANGEMENT WITH AGENCY. In
this subtitle, "employment" does not include service under an
arrangement that is between the commission and the agency that
administers another state's or a federal unemployment compensation
law and that considers the service for an employing unit during the
period covered by the employing unit's approved election to be
performed entirely within the agency's state or under the federal
law.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.063. CERTAIN GOVERNMENT SERVICE. (a) In this
subtitle, "employment" does not include:
(1) service in the employ of a political subdivision
or of an instrumentality of a political subdivision that is wholly
owned by one or more political subdivisions:
(A) as an elected official;
(B) as a member of a legislative body;
(C) as a member of the judiciary;
(D) as a temporary employee in case of fire,
storm, snow, earthquake, flood, or similar emergency; or
(E) in a position that is designated under law as
a major nontenured policy-making or advisory position or a
policy-making or advisory position that ordinarily does not require
more than eight hours of service each week;
(2) service in the employ of a foreign government,
including service as a consular or other officer or employee or as a
nondiplomatic representative;
(3) service in the employ of an instrumentality wholly
owned by a foreign government if:
(A) the service is similar to service performed
in a foreign country by an employee of the United States government
or an instrumentality of that government; and
(B) the United States secretary of state has
certified to the United States secretary of the treasury that the
foreign government grants an equivalent exemption for similar
services performed in the foreign country by an employee of the
United States government or an instrumentality of the United States
government;
(4) service in the employ of the United States
government or an instrumentality of the United States exempt under
the United States Constitution from the contributions imposed by
this subtitle; or
(5) service described by Subdivisions (1)-(3)
performed in the employ of an Indian tribe.
(b) To the extent the United States Congress permits a state
to require an instrumentality of the United States to make payments
into an unemployment fund under a state unemployment compensation
law, this subtitle applies to the instrumentality and to the
service performed for the instrumentality.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 518, § 3, eff. June 11, 2001.
§ 201.064. DOMESTIC SERVICE. In this subtitle,
"employment" does not include domestic service in a private home,
local college club, or local chapter of a college fraternity or
sorority, except as performed for an employer under Section
201.027.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.065. SERVICE BY RELATIVE. In this subtitle,
"employment" does not include:
(1) service of an individual in the employ of the
individual's son, daughter, or spouse; or
(2) service of an individual younger than 21 years of
age in the employ of the individual's father or mother.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.066. RELIGIOUS SERVICE. In this subtitle,
"employment" does not include:
(1) service in the employ of:
(A) a church;
(B) a convention or association of churches; or
(C) an organization that is operated primarily
for religious purposes and that is operated, supervised,
controlled, or principally supported by a church or a convention or
association of churches;
(2) service performed by an ordained, commissioned, or
licensed minister of a church in the exercise of the individual's
ministry; or
(3) service performed by a member of a religious order
as required by the order.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.067. REHABILITATIVE SERVICE; WORK RELIEF;
EXCEPTION FOR SERVICES PERFORMED BY CERTAIN BLIND
INDIVIDUALS. (a) In this subtitle, "employment" does not include
service performed by an individual who:
(1) receives rehabilitative work or paying work in the
employ of a facility that:
(A) is conducted to carry out a program of
rehabilitation for individuals whose earning capacity is impaired
by:
(i) age;
(ii) physical impairment, other than
blindness; or
(iii) mental deficiency or injury; or
(B) provides paying work for individuals who,
because of their impaired physical or mental capacity, cannot be
readily absorbed in the competitive labor market;
(2) is blind while the individual is in training at a
sheltered workshop operated by a charitable organization under a
rehabilitation program that includes:
(A) an individual plan for employment as required
by 29 U.S.C. Section 722, as amended;
(B) a timeline for completion of the training;
and
(C) a planned employment outcome; or
(3) receives work relief or work training as a part of
an unemployment work-relief or work-training program assisted or
financed in whole or in part by a federal agency, an agency of a
state, a political subdivision of a state, or an Indian tribe.
(b) Notwithstanding Subsection (a), in this subtitle
"employment" includes service performed by an individual who is
blind and who, after training, is working for a sheltered workshop
operated by a charitable organization:
(1) temporarily while awaiting placement in a position
of employment in the competitive labor market; or
(2) permanently because the individual is unable to
compete in the competitive labor market.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 518, § 4, eff. June 11, 2001; Acts
2001, 77th Leg., ch. 996, § 1, eff. Sept. 1, 2001; Acts 2003,
78th Leg., ch. 1276, § 11.002, eff. Sept. 1, 2003.
§ 201.068. SERVICE IN HOSPITAL. In this subtitle,
"employment" does not include:
(1) service as a student nurse who is:
(A) employed by a hospital or a nurses' training
school; and
(B) enrolled and regularly attending classes in a
nurses' training school chartered or approved under state law;
(2) service as an intern in the employ of a hospital by
an individual who has completed a four-year course in a medical
school chartered or approved under state law; or
(3) service in the employ of a hospital by a patient of
the hospital.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.069. SERVICE OF STUDENT. In this subtitle,
"employment" does not include:
(1) service performed in the employ of a school,
college, or university by a student who is enrolled and regularly
attending classes at the school, college, or university;
(2) service performed by an individual who is enrolled
as a student in a full-time program that combines academic
instruction with work experience and that is taken for credit at a
nonprofit or public educational institution normally maintaining a
regular faculty and curriculum and having a regularly organized
body of students in attendance at the place where its educational
activities are conducted, if the service is an integral part of the
program, and the institution has so certified to the employing
unit, except:
(A) service performed in a program established
for an employer or a group of employers;
(B) service in an apprenticeship training
program; or
(C) service performed by a teaching assistant;
or
(3) service by a student in the employ of an organized
camp if:
(A) the camp:
(i) did not operate for more than seven
months in the current calendar year and did not operate for more
than seven months in the preceding calendar year; or
(ii) had average gross receipts for any six
months in the preceding calendar year that were not more than 33-1/3
percent of its average gross receipts for the other six months in
the preceding calendar year; and
(B) the student performed services for the camp
for fewer than 13 calendar weeks in the calendar year and the
student:
(i) is enrolled as a full-time student at an
educational institution; or
(ii) is between academic terms or years
and:
(a) the student was enrolled as a
full-time student at an educational institution for the preceding
academic term or year; and
(b) there is reasonable assurance
that the student will be so enrolled for the next academic term or
year.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.070. SERVICE AS PRODUCT DEMONSTRATOR;
SALESMAN. In this subtitle, "employment" does not include:
(1) service by an individual as a product demonstrator
if:
(A) the service is performed under a written
contract between the individual performing the service and a person
whose principal business is obtaining the service of a demonstrator
for a third person for product demonstration purposes; and
(B) in contract and in fact the individual:
(i) is not treated as an employee with
respect to that service for federal unemployment tax purposes;
(ii) is compensated for each demonstration
or is compensated based on factors that relate to the work
performed;
(iii) determines the method of performing
the service;
(iv) provides each vehicle used to perform
the service;
(v) is responsible for the completion of a
specific job and is liable for failure to complete the job;
(vi) may accept or reject a job from a
product demonstrator business;
(vii) is free from control by the principal
business as to where the individual works;
(viii) controls solely opportunity for
profit or loss; and
(ix) pays all expenses and operating costs,
including fuel, repairs, supplies, and motor vehicle insurance;
(2) service by an individual as a direct seller if:
(A) the individual is engaged in the business of:
(i) in-person sales of consumer products to
a buyer on a buy-sell basis, a deposit-commission basis, or a
similar basis for resale in a home or in a place other than, and not
affiliated with, a permanent retail establishment; or
(ii) sales of consumer products in a home or
in a place other than, and not affiliated with, a permanent retail
establishment;
(B) substantially all remuneration for the
service, whether in cash or other form of payment, is directly
related to sales or other output, including the performance of the
service, and not to the number of hours worked; and
(C) the service is performed under a written
contract between the individual and the person for whom the service
is performed, and the contract provides that the individual is not
treated as an employee with respect to the service for federal tax
purposes; or
(3) service performed by an individual at a trade
market for a wholesaler or sales representative of a wholesaler or
manufacturer of consumer goods under a written contract, or as a
salesman for a wholesaler of consumer goods, if the wholesaler or
sales representative maintains a regular or seasonal place of
business at a trade market facility in a municipality with a
population of more than 750,000.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.071. SERVICE AS INSURANCE AGENT. In this
subtitle, "employment" does not include service as an insurance
agent for which the only remuneration for the service is a
commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.072. SERVICE AS REAL ESTATE BROKER. In this
subtitle, "employment" does not include:
(1) service performed by an individual as a real
estate broker or salesperson if:
(A) the individual engages in activity described
by the definition of " broker" in Section 1101.002, Occupations
Code;
(B) the individual is licensed as a broker or
salesperson by the Texas Real Estate Commission;
(C) substantially all remuneration for the
service, whether in cash or other form of payment, is directly
related to sales or other output, including the performance of the
service, and not to the number of hours worked; and
(D) the service is performed under a written
contract between the individual and the person for whom the service
is performed, and the contract provides that the individual is not
treated as an employee with respect to the service for federal tax
purposes; or
(2) service performed by an individual as an
instructor of a person licensed or seeking a license as a real
estate broker or salesperson if:
(A) the individual instructs in an educational
program or course approved by the Texas Real Estate Commission; and
(B) the service is performed under a written
contract between the individual and the person for whom the service
is performed and the contract provides that the individual is not
treated as an employee with respect to the service for federal tax
purposes.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 1276, § 14A.788, eff. Sept. 1, 2003.
§ 201.073. DELIVERY SERVICE; NEWSPAPER DELIVERY
SERVICE. In this subtitle, "employment" does not include:
(1) service performed for compensation by an
individual for a private for-profit delivery service if the
individual:
(A) may accept or reject a job from the delivery
service;
(B) is free from control by the delivery service
as to when the individual works;
(C) is compensated for each delivery or is
compensated based on factors relating to the work performed,
including receipt of a percentage of a rate schedule;
(D) controls solely the opportunity for profit or
loss;
(E) pays all expenses and operating costs,
including fuel, repairs, supplies, and motor vehicle insurance;
(F) determines the method of performing the
service, including selection of routes and order of deliveries;
(G) is responsible for completion of a specific
job and is liable for failure to complete the job;
(H) enters into a contract that specifies the
relationship of the individual to the delivery service to be that of
an independent contractor and not an employee; and
(I) provides the vehicle used to perform the
service; or
(2) service by an individual younger than 18 years of
age in the delivery or distribution of newspapers or shopping news,
except delivery or distribution to any location for subsequent
delivery or distribution.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 705, § 8, eff. Sept. 1, 1995.
§ 201.074. SERVICE BY INMATE. In this subtitle,
"employment" does not include service performed by an inmate of a
custodial or penal institution.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 125, § 1, eff. Sept. 1, 1999.
§ 201.075. SERVICE ON FISHING VESSEL. In this subtitle,
"employment" does not include service performed on a fishing vessel
normally having a crew of fewer than 10 members if:
(1) the crew member's payment is a share of the catch;
and
(2) the service is not employment under the Federal
Unemployment Tax Act (26 U.S.C. Section 3301 et seq.)
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.076. INCLUDED AND EXCLUDED SERVICE IN PAY
PERIOD. (a) All of the service of an individual performed during
a pay period for a person employing the individual is employment if
the service performed during one-half or more of the period is
employment.
(b) None of the service of an individual performed during a
pay period for a person employing the individual is employment if
the service performed during more than one-half of the pay period is
not employment.
(c) This section does not apply to service performed in a
pay period by an individual for a person employing the individual
that is service that does not constitute employment under Section
201.061.
(d) In this section, "pay period" means the period, not to
exceed 31 consecutive days, for which a person employing an
individual ordinarily pays wages to the individual.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.077. SERVICE BY LANDMAN. In this subtitle,
"employment" does not include service performed for a private
for-profit person by an individual as a landman if:
(1) the individual is engaged primarily in negotiating
for the acquisition or divestiture of mineral rights or negotiating
business agreements that provide for the exploration for or
development of minerals;
(2) substantially all remuneration, paid in cash or
otherwise, for the performance of the service is directly related
to the completion by the individual of the specific, contracted-for
tasks, rather than to the number of hours worked by the individual;
and
(3) the service performed by the individual is
performed under a written contract between the individual and the
person for whom the service is performed that provides that the
individual is to be treated as an independent contractor and not as
an employee with respect to the service provided under the
contract.
Added by Acts 1995, 74th Leg., ch. 76, § 9.25(a), eff. Sept. 1,
1995.
§ 201.078. SERVICE BY NONRESIDENT ALIEN AGRICULTURAL
WORKER. In this subtitle, "employment" does not include service
performed by a nonresident alien during the period that the alien is
temporarily in the United States under an H2-A visa if the service
is not defined as employment under the Federal Unemployment Tax Act
(26 U.S.C. Section 3306(c)(19)).
Added by Acts 2003, 78th Leg., ch. 52, § 1, eff. Sept. 1, 2003.
SUBCHAPTER F. DEFINITION OF WAGES
§ 201.081. GENERAL DEFINITION OF WAGES. In this
subtitle, "wages" means all remuneration for personal services,
including:
(1) the cash value of remuneration paid in a medium
other than cash; and
(2) a gratuity received by an employee in the course of
employment to the extent that the gratuity is considered wages in
the computation of taxes under the Federal Unemployment Tax Act (26
U.S.C. Section 3301 et seq.).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 201.082. EXCEPTIONS TO WAGES. In this subtitle,
"wages" does not include:
(1) that part of the remuneration paid by an employer
to an individual for employment during a calendar year that exceeds
remuneration to the individual, excluding remuneration under
another subdivision of this section, by the employer, of $9,000;
(2) a payment, including an amount the employer pays
for insurance or an annuity or pays into a fund for the payment of
insurance or an annuity, that is made to or for an employee or the
employee's dependent under a plan the employer established for
employees generally, or a class of employees, including or
excluding the employee's dependents, for:
(A) retirement;
(B) sickness or accident disability;
(C) medical or hospitalization expenses in
connection with sickness or accident disability; or
(D) expenses related to death;
(3) a payment made to an individual employee for
retirement, including an amount an employer pays for insurance or
an annuity or pays into a fund for the payment of insurance or an
annuity;
(4) a payment for sickness or accident disability, or
medical or hospitalization expenses for sickness or accident
disability, an employer makes to or for an individual employee
after the expiration of six calendar months after the last calendar
month the employee worked for the employer;
(5) a payment made to or for an employee or the
employee's beneficiary:
(A) from or to a trust defined by Section 401(a),
Internal Revenue Code of 1986 (26 U.S.C. Section 401(a)), that is
exempt from tax under Section 501(a), Internal Revenue Code of 1986
(26 U.S.C. Section 501(a)), at the time of payment, unless the
payment is made to an employee of the trust as remuneration for
service as an employee and not as a beneficiary of the trust; or
(B) under or to an annuity plan that, at the time
of the payment, is a plan described by Section 403(a), Internal
Revenue Code of 1986 (26 U.S.C. Section 403(a));
(6) a tax an employer pays, without deduction from the
remuneration of the employee, that is imposed on the employee under
Section 3101, Internal Revenue Code of 1986 (26 U.S.C. Section
3101);
(7) noncash remuneration paid to an employee for
service not in the course of the employer's business;
(8) a payment, except vacation or sick pay, made to an
employee after the month the employee is 65 years of age, if the
employee did not work for the employer in the period for which the
payment is made; or
(9) the part of remuneration from a single employer
for services in a calendar year that exceeds the amount applicable
to the year under Subdivision (1) for which contributions have been
paid under a state unemployment law.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 94, § 1, eff. Sept. 1, 1997.
SUBCHAPTER G. TOTAL AND PARTIAL UNEMPLOYMENT
§ 201.091. TOTAL AND PARTIAL UNEMPLOYMENT. (a) An
individual is totally unemployed in a benefit period during which
the individual does not perform services for wages in excess of the
greater of:
(1) $5; or
(2) 25 percent of the benefit amount.
(b) An individual is partially unemployed in a benefit
period of less than full-time work if the individual's wages
payable for that benefit period are less than the sum of:
(1) the benefit amount the individual would be
entitled to receive if the individual was totally unemployed; and
(2) the greater of:
(A) $5; or
(B) 25 percent of the benefit amount.
(c) For purposes of this subtitle, an individual is
considered unemployed if the individual is:
(1) totally unemployed as defined by Subsection (a);
or
(2) partially unemployed as defined by Subsection (b).
(d) Notwithstanding Subsection (b), an individual is not
partially unemployed for purposes of this subtitle for a benefit
period in which the individual's working hours are reduced by the
individual's employer as a result of misconduct connected with the
work on the part of the individual. Such limitation will be
effective for a maximum of four weeks from the effective date of
such a reduction in hours.
(e) For purposes of this subtitle, an individual is not
considered unemployed and is not eligible to receive benefits for
any benefit period during which the individual works the
individual's customary full-time hours, regardless of the amount of
wages the individual earns during the benefit period.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 9.26(a), eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 83, § 1, eff. Sept. 1, 1997; Acts 1999,
76th Leg., ch. 1184, § 1, eff. Sept. 1, 1999.
SUBCHAPTER H. CONFORMITY WITH FEDERAL STATUTES
§ 201.101. CONFORMITY WITH FEDERAL STATUTES. If the
United States secretary of labor holds that a provision of this
subtitle does not conform with a federal statute, the commission
may administer this subtitle to conform with the federal statute
until the legislature meets in its next session and has an
opportunity to amend this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
