CROSSOVER: Tyler Court: ‘Try‑Out’ Day Can Defeat TWCA Exclusive Remedy—Jury Gets to Decide Employee Status Despite Comp Claim Payments

Antonio Munoz Aserradero, LLC v. Thomas, 12-25-00047-CV, March 11, 2026.

On appeal from the 2nd Judicial District Court, Cherokee County, Texas.

Synopsis

The Tyler Court of Appeals affirmed the denial of a directed verdict on the Texas Workers’ Compensation Act (“TWCA”) exclusive-remedy defense because the evidence did not conclusively establish a “contract of hire” during a “try-out” workday. Even with a pay stub and the carrier’s payment of medical and indemnity benefits, testimony that the worker was being “tried out” and that they would “talk about employment” later created a jury question on employee status.

Relevance to Family Law

Family-law litigators regularly litigate “employment” as a factual and legal status—most often when valuing earning capacity, characterizing benefits as community vs. separate, and framing fault narratives that influence conservatorship and disproportionate division. This opinion is a reminder that “employee” status can turn on contract formation (including consideration and mutual assent), not merely on payroll artifacts or third-party benefit payments—an analytic frame that translates cleanly to disputes over whether a spouse is truly employed, underemployed by design, or informally working “off the books” while still claiming employment-based benefits.

Case Summary

Fact Summary

A sawmill worker (Thomas) arrived a day late for his start date and spoke with the owner (Munoz). Thomas testified Munoz told him: “we will try you out. If you like it, we will talk about employment. For now, we will train you, and if you don’t like it, it is like you have never even been here.” Thomas was trained, given gloves, assigned to operate equipment, and worked through the morning. Shortly after lunch, he returned to the same workstation and was injured by the machine.

The incident was reported to the employer’s workers’ compensation carrier (Texas Mutual). The carrier opened a claim the day of the injury, paid medical expenses, and made substantial indemnity payments (including after suit was filed). The employer contended a paycheck was issued; Thomas denied receiving it, and the record reflected no deposit or negotiation. A pay stub showed $75 in gross wages with standard withholdings.

Thomas sued for negligence, pleading he was not an employee (instead an independent contractor or invitee). The defendants asserted TWCA exclusive remedy (and other defenses) and sought a directed verdict on the theory that the evidence conclusively proved employee status and TWCA coverage. The trial court denied the directed verdict, and the jury returned a substantial verdict for Thomas. On appeal, the defendants challenged—among other things—the denial of the directed verdict on exclusive remedy.

Issues Decided

• Whether the trial court erred by denying a directed verdict on the defendants’ TWCA exclusive-remedy affirmative defense—i.e., whether the evidence conclusively established that Thomas was an “employee” under a “contract of hire” at the time of injury, including during a “try-out” period.

Rules Applied

The court framed exclusive remedy as an affirmative defense requiring the defendant to prove employee status and workers’ compensation coverage.

Key authorities and rules discussed include:

• Exclusive remedy (affirmative defense): TEX. LAB. CODE § 408.001(a); Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985); Exxon Corp. v. Perez, 842 S.W.2d 629 (Tex. 1992); Garza v. Exel Logistics, Inc., 161 S.W.3d 473 (Tex. 2005).
• Definition of “employee” / “contract of hire”: TEX. LAB. CODE § 401.012(a).
• Contract formation is required for the employer-employee relationship in this context: Waldrep v. Texas Emplrs. Ins. Assoc., 21 S.W.3d 692 (Tex. App.—Austin 2000, pet. denied).
• Payment/consideration is an essential term: the opinion cites general contract principles (including that payment is a material term).
• Volunteer vs. employee: a person who assumes service “without any express or implied promise of remuneration” is a volunteer, not an employee (citing Tex. Emp’rs Ins. Assoc. v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.—Beaumont 1978, writ ref’d n.r.e.)).
• Directed verdict / legal sufficiency standard: City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005); Prudential Ins. v. Fin. Review Servs., 29 S.W.3d 74 (Tex. 2000).

Application

The employer’s theory was straightforward: Thomas reported to work, was trained, was integrated into operations, was assigned to machinery, and a pay stub existed—therefore employee status was conclusively established, triggering TWCA exclusive remedy as a matter of law. The carrier’s prompt claim handling and long-running indemnity payments were used to reinforce the idea that everyone treated Thomas as an employee.

The Tyler court rejected that “conclusive proof” posture at the directed-verdict stage. The opinion’s center of gravity is contract formation: TWCA “employee” status depends on service “under a contract of hire,” and a contract—express or implied—requires consideration and mutual assent to essential terms (including remuneration). Thomas’s testimony about the “try-out” framing (“we will talk about employment” later; “if you don’t like it, it is like you have never even been here”) supplied evidence that the parties had not yet reached a meeting of the minds on employment and pay at the time of the accident.

In other words, even if the employer later generated payroll paperwork and the carrier paid benefits, the jury could still rationally conclude that, at the moment of injury, Thomas was performing services without an express or implied promise of remuneration—i.e., as a volunteer—meaning TWCA exclusive remedy was not established as a matter of law. That evidentiary posture is fatal to a directed verdict: once there is more than a scintilla supporting the absence of a contract of hire, the question becomes for the jury.

Holding

The court affirmed the trial court’s denial of a directed verdict on the TWCA exclusive-remedy defense. Because a volunteer—someone performing services without an express or implied promise of remuneration—is not an “employee” under the TWCA, and because the “try-out” evidence supported a finding that no contract of hire existed at the time of injury, employee status was not conclusively established and the defense could not be taken from the jury.

Separately (as background from the snippet), the case also reflects the trial court’s gatekeeping choices (e.g., excluding workers’ compensation benefit evidence), reinforcing the practical reality that exclusive-remedy litigation is often won or lost on framing employee status through admissible contract-formation proof rather than post-injury administrative breadcrumbs.

Practical Application

For Texas family-law litigators, the immediate utility is not TWCA doctrine per se—it is the court’s insistence on contract formation fundamentals when “employment” is asserted as a dispositive status. That translates into several recurring family-law battlegrounds:

• Underemployment / intentional unemployment: When a spouse claims “I’m employed” (or “I’m not”) to manipulate guideline support or temporary orders, this case is a reminder to focus on evidence of an actual contract of hire—offer, acceptance, mutual assent, and consideration—rather than self-serving labels or informal “trial” arrangements.
• Characterization and valuation of employment-related benefits: If one side argues benefits are “employment-based” (and therefore stable, ongoing, or attributable as income), probe whether the status is contractual or merely contingent (probationary/try-out) at the time relevant to your valuation date.
• Third-party payments as misleading proxies for status: Just as carrier benefit payments did not conclusively establish employee status here, in family law third-party payments (expense reimbursement, “1099 vs. W-2” choices, payments from a family business, or “loan” advances) may not conclusively establish wages, employment, or earning capacity without proof of an underlying enforceable agreement.
• Credibility and narrative leverage: “Try-out” language can cut both ways in SAPCRs and divorces: it can support a theory of instability (employment is speculative) or, alternatively, a theory of concealed income (work performed despite claimed unemployment). The point is to build the record around the contractual core, not just the optics.

Checklists

Proving (or Disproving) a “Contract of Hire” in Family-Law Income Disputes

• Identify the alleged offer terms: start date, role, rate, hours, duration, and contingencies (“try-out,” probation, commission-only).
• Pin down consideration: agreed wage/salary, draw, commission schedule, guaranteed minimum, or noncash remuneration.
• Obtain written artifacts: offer letters, onboarding docs, texts/emails confirming pay, employee handbook acknowledgments.
• Subpoena payroll data: pay stubs, direct deposit records, wage statements, W-2/1099 history, withholding elections.
• Verify whether any “paycheck” was actually received/negotiated: bank records, deposit images, ledger entries.
• Depose the alleged employer on whether payment was promised before services began (not “we’ll talk later”).

Attacking “Employment” as a Label (When the Other Side Wants Imputation Avoided)

• Force the timeline: what was agreed before work started vs. what was documented after litigation began.
• Highlight conditionality: “try-out,” “we’ll see,” “maybe,” “we’ll talk about pay later,” “volunteer,” “training only.”
• Separate “control” facts from “contract” facts: control may show work occurred; it does not, alone, prove consideration.
• Challenge administrative proxies: benefits, insurance enrollments, HR entries, and third-party payments as nonconclusive.

Building the Appellate Record (Temporary Orders, Enforcement, and Support Findings)

• Request findings where available (and make a record when the court declines) tying income to contractual proof, not assumptions.
• Make clear offers of proof for excluded employment/earnings evidence.
• Preserve legal-sufficiency points: if the other side claims “conclusive” employment, frame why the record shows a fact issue on consideration/assent.

Citation

Antonio Munoz Aserradero, LLC v. Thomas, No. 12-25-00047-CV (Tex. App.—Tyler Mar. 11, 2026) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

This ruling can be weaponized in divorce or custody litigation by reframing “employment” from a label into a contract-formation question: if the opposing party relies on payroll stubs, benefit payments, or third-party documentation to insist income is established (or to deny it exists), you can argue—using the opinion’s logic—that such artifacts are not dispositive when the underlying arrangement was contingent, informal, or lacking mutual assent on compensation. In practice, that becomes a targeted cross-examination theme (“What exactly was promised, when, and by whom?”), a discovery roadmap (banking proof of actual receipt of pay), and an appellate posture (employment/income findings unsupported when the record shows a fact issue on whether there was an enforceable agreement for remuneration at the critical time).

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