Although the TWCA is unique among the states in allowing private employers to choose whether to subscribe, it encourages employers to subscribe by abolishing their common-law defenses of contributory negligence, assumption of the risk, and fellow servant if they do not subscribe. TEX LAB. CODE § 406.033. The Legislature intended the TWCA to benefit both employees and employers.

The court of appeals sustained the summary judgment holding that the employee’s decision to climb over a fence with a 65 pound mold was the sole proximate cause of his injuries, and thus, the employer was not responsible for employee’s injuries. Note: A review of Texas Labor Code § 406.033 reveals that the defense of sole proximate cause is not listed as one of ways in which an employer may defend the suit. § ( c ) states that an employer may defend the action on the ground that the injury was caused by an act of the employee intended to bring about the injury or while the employee was in a state of intoxication.