CHAPTER 201. UNEMPLOYMENT COMPENSATION ACT--GENERAL PROVISIONS
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
Sec. 201.001. SHORT TITLE. This subtitle may be cited as the
Texas Unemployment Compensation Act.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
SUBCHAPTER B. GENERAL DEFINITIONS
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.23(a), eff. Sept.
1, 1995; Acts 2001, 77th Leg., ch. 518, Sec. 1, eff. June 11,
2001; Acts 2003, 78th Leg., ch. 817, Sec. 10.13, eff. Sept. 1,
2003.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
SUBCHAPTER C. DEFINITION OF EMPLOYER
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 201.022. EFFECT OF BUSINESS ACQUISITION. In this subtitle,
"employer" also means an individual or employing unit that
acquires or otherwise receives, through any means, all or part of
the organization, trade, business, or workforce of another that
was an employer subject to this subtitle at the time of the
acquisition.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch.
1315, Sec. 1, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 2001, 77th Leg., ch. 487, Sec. 1, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 9.23(b), eff. Sept.
1, 1995.
Sec. 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, Sec. 20, eff. Sept. 1,
1997.
SUBCHAPTER D. DEFINITION OF EMPLOYMENT
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.24, eff. Sept. 1,
1995.
Sec. 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, Sec. 2, eff. June 11,
2001.
SUBCHAPTER E. EXCEPTIONS TO EMPLOYMENT
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 2001, 77th Leg., ch. 518, Sec. 3, eff. June 11,
2001.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 2001, 77th Leg., ch. 518, Sec. 4, eff. June 11,
2001; Acts 2001, 77th Leg., ch. 996, Sec. 1, eff. Sept. 1, 2001;
Acts 2003, 78th Leg., ch. 1276, Sec. 11.002, eff. Sept. 1, 2003.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.788, eff.
Sept. 1, 2003.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 705, Sec. 8, eff. Sept. 1,
1995.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1999, 76th Leg., ch. 125, Sec. 1, eff. Sept. 1,
1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 9.25(a), eff. Sept.
1, 1995.
Sec. 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, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER F. DEFINITION OF WAGES
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 94, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER G. TOTAL AND PARTIAL UNEMPLOYMENT
Sec. 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.
(f) For purposes of this subtitle, an individual who last worked
for a temporary help firm is not considered to be unemployed
until three business days have passed since the date the
individual's last assignment ended.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.26(a), eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 83, Sec. 1, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1184, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
592, Sec. 1, eff. September 1, 2005.
SUBCHAPTER H. CONFORMITY WITH FEDERAL STATUTES
Sec. 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, Sec. 1, eff. Sept. 1, 1993.