Texas Attorney General Opinion: GA-0292 Page: 4 of 5
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The Honorable Robert Duncan - Page 4
The test to determine whether a person is an employee rather than an independent contractor
is whether the employer has a right to control the progress, details, and methods of operations
of the work. See id. (citations omitted). An employer controls not merely the end sought to be
accomplished, but also the means and details of its accomplishment. See id. (citations omitted). The
right to control is measured by considering: "(1) the independent nature of the worker's business;
(2) the worker's obligation to furnish the necessary tools, supplies, and materials to perform the job;
(3) the worker's right to control the progress of the work except about final results; (4) the time for
which the worker is employed; and (5) the method of payment, whether by unit of time or by the
job." Id. (citation's omitted).
The employee-independent contractor test is resolved by referring to facts. Accordingly,
whether a person comes within the definition of "employed by" is a question of fact. Resolving
questions of fact is not appropriate to the opinion process. See Tex. Att'y Gen. Op. No. GA-0156
(2004) at 10.
III. "Private Industrial Business"
The exemption provides limited guidance for this term's definition by listing entities that
qualify as private industrial businesses. See TEX. OCC. CODE ANN. 1305.003(14) (Vernon 2004).
The Act exempts a person employed by "a private industrial business, including a business that
operates a chemical plant, petrochemical plant, refinery, natural gas plant, natural gas treating plant,
pipeline, or oil and gas exploration and production operation." Id. (emphasis added). However, the
term "include" in a statute is a "term of enlargement and not a term of limitation or exclusive
enumeration, and use of the term does not create a presumption that components not expressed
are excluded." TEX. Gov'T CODE ANN. 311.005(13) (Vernon 1998). As such, the definition of
"private industrial business" hinges on our ability to ferret out the common bond that holds the
listed entities together. See Peerless Carbon Black Co. v. Sheppard, 113 S.W.2d 996, 997 (Tex. Civ.
App.-Austin 1938, writ ref'd) (stating that while "include" is a word of enlargement, the items
expressly enumerated are illustrative of the additional items that may be included). Given the dearth
of information in the Act's legislative history, we cannot determine with confidence the common
bond shared by the illustrative items that define "private industrial business," and thus we conclude
that the term is vague.
In sum, it is conceivable that a third-party contractor, whether an individual or any other legal
entity, could be a "person." Equally conceivable, a third-party contracting company that provides
electrical workers to an industrial business could itself be a "private industrial business."
Nevertheless, given that the Act does not acknowledge ubiquitous industry practices, which renders
the terms "person" and "private industrial business" ambiguous and vague, and because the
determination of whether a person is an employee or an independent contractor is a fact question,
we cannot answer your question as a matter of law.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0292, text, 2005; (texashistory.unt.edu/ark:/67531/metapth275188/m1/4/: accessed January 20, 2019), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.