Untitled Texas Attorney General Opinion ( 1995 )

QBffice of tfp attorney dhnerst
&date of Qexasi
DAN MORALES
ATTORNEY
GENERAL June 23,1995
Mr. William Grossenbacher Opinion No. DM-356
. .
-Or
Texas Bmployment Commission Re: Authority of the Texas Employment
101 Bast 15th street Commission to transfer or assign a hen or
Austin, Texas 78778-0001 notice of assessment based on unpaid
wages, under chapter 61, Labor Code, to
the wage claimant (RQ-745)
Dear Mr. Grossenbacher:
You ask with regard to wage claims made to the Texas Bmployment Commission
(the ‘kxxnmission”) under subchapter D (sections 61.051 - .066), chapter 61 of the Labor
Code, for which the commissi on has issued “hal orders” ordering payment by the
employer, whether “the State of Texas [can] transfer or assign [a lien and/or] a Notice of
Assessment based on unpaid wages to the wage cBimant, so the claimant might pursue
collection efforts on his own.” By way of background we review the relevant provisions.
An employee, other than a public employee, may ille a claim for unpaid wages with
the commission. Labor Code $5 61.003, ,051. The commission analyzes the claim and
issues a “prehminary wage determination order” either dismiming the claim or ordering
payment of wages determined to be due and unpaid. The commission may include in the
order an order to pay an administrative penalty if it determines the employer acted in bad
t%th in not payingthewages. Id @61.052-.053. %therpartymayreques! a hexing’
to contest a prelhninary wage determination order.” Id. 8 61.054. The request for
hearing must be made in writing not later than twenty-one days a&r the commission mails
the parties notice of the prehminary order. Otherwise the prehminary order becomes “‘the
tinal order of the commission for all purposes” inchnling “judicial review. . under
[subchapter D].” Id. § 61.055. The employer is to pay the amount ordered-less valid,
itemized deductions-to the commission by such twenty-6rst day atIer notice of the order
was mailed. “Payment to the commission constitutes payment to the employee for all
purposes.” Id. 5 61.056(b); Act ofMay 21,1993,73d Leg., RS., ch. 456, 5 2, 1993~Tex.
Sess. Law Serv. 1833, 1834.’
‘The provisions
of cbaptcr61,Labor code. wcrcculitkd in 1993. Act of May 12,1993,73d
Leg.. RS., ch 269, 1993Tar Sss. Law Sav. 990. Theyfoimcrlyqycared as V.T.C.S. title 5155,
which wss qxalcd by the 1993axl@ing act. Withoutrcfmncc to that reptal anotbu 1993bii
amendedarticlc5155. Act of May 21, 1993,73dLeg, RS., ch. 456, 1993Tex. Sas. Law Serv.1833.
pursuanttoGwcrnmentcodescction311.031(c)thc amcndmenuntustkgivmc&ctasgartpattdchaptcr
61.
Mr. William Grossenbacher - Page 2 (DR-356)
If a hearing on the preliminary order is requested, the commission must notify the
parties of the hearing by the twenty-first day atIer receiving the request, and conduct the
hearing within forty-five days of such notice. Labor Code Q 61.057. After the hearing-at
which the commission may modify, aSinn, or rescind its prehminary order-the
commission enters an order for the payment of wages and penalty amounts determined
due and mails notice thereof to the patties. The order becomes “tinal” fourteen days after
it is mailed unless “a party to the appeal files a written motion for rehearing” or “the
commission reopens the hearing” before that date, however, a party may file suit in the
proper court to appeal the “final order” within sii days after it was mailed. Id.
$61.059 - ,062; Act ofey 21. 1993,73d Leg., R.S., ch. 456, $2, 1993 Tex. Sess. Law
Setv. 1833, 1834. In any case, if the commission’s final order requires the employer to
pay wages or a penalty, he is to pay such amounts to the commission within sixty days
after the commission’s order becomes tinal. Labor Code 4 61.063; Act of May 21, 1993,
73d Leg., RS., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834.2 “Not later than the
30th day after the date on which a claim is tinally adjudicated or otherwise resolved,” the
commission is to pay the cBimant “wages collected under [subchapter D]” (presumably
less any amounts remitted) along with any interest accrued. Labor Code 8 61.064.
Your specitic concerns are with situations where there is no court appeal of the
commission’s tinal order. “A final order . . against an employer indebtedto the statefor
pedties or wages, unless timely appealed,” constitutes Ua lien on all the property
belonging to the employer.” Id. 5 61.081(a) (emphasis added). “The lien for an unpaid
debt attaches at the time the order. . becomes final.” Id. 5 61.081(b). Administration
and enforcement of the hen by the commission is as for tax liens under chapter 113,
subchapters A and B, Tax Code. Id. 5 61.082. Liens may be recorded in the book
entitled “State Tax Liens” kept by the county clerk. Id. 5 61.083.
Also, pursuant to an unappealed final order, the wmmission may serve a “‘notice of
assessment” on a defaulting employer, which “is prima facie evidence of the contents of
the notice.” Act of May 21, 1993, 73d Leg., R.S., ch. 456, $2, 1993 Tex. Sess. Law
Serv. 1833, 1834. The party served may contest the notice in court, but if he doesn’t do
so within thirty days of setvice, the notice “shall be treated as if it were a final judgment of
a district wurt, and shah be recorded, enforced and renewed in the same manner.” Id.
Noting that both “the administrative liens and Notices of Assessment presently
bemg filed by Texas Employment Commission identity the claimant whose wage claim
occasioned the final determination and order, as well as the amount of wages due, but
p. 1898
Mr. Wti Grossenbacher - Page 3 (DM-356)
that] both the administrative hen and the Notice of Assessment are tiled in the name of the
State of Texas,” your specific question, again is whether “the State of Texas [can]
transfer or assign [a lien based on unpaid wages and/or] a Notice of Assessment based on
unpaid wages to the wage claimant, so the claimant might pursue collection efforts on his
OWYL”
In our opinion, such transfers or assignments were not contemplated by the
legislature in the applicable provisions. Nor do we f3nd any basis in those provisions fbm
which commission authority to make such transfers or assignments can be reasonably
derived. See 2 TgX. JUR. 3D Auhiniszhzfive Law 3 11(1979) (and authorities cited there)
(state agency has only such powers as are expressly wnferred on it by statute, together
with those necessarily implied from powers and duties expressly given or imposed). By
“tmnsfhg” or “assigning” the notices or hens, the wmmission would neces&ly be
relinquishing its interest in the hens or notices. Even though the wmmission has
considerable authority under chapter 61 -section 61.002 gives the wmmissionauthorityto
“adopt rules as necemary to implement” the chapter-we think that the department’s
disposing of its interest in and wntrol over the notices and liens without having obtained
the wages owed to the claimant would be such a departure from the actual provisions of
chapter 61 as to require 8nther legislative authorization for it to be a valid exercise of
commission powers.
Chapter 61 makes specitic provisions for the enforcement of the wmmission’stinal
orders and the hens and notices of assessment derived from them. The attorney general or
wmmission may bring suit in Travis County to mforce tinal orders from which no appeal
has been taken. Labor Code 4 61.066; Act of May 21, 1993,73d Leg., B.S., ch. 456,s 2,
1993 Tex. Sess. Law Serv. 1833, 1834. Unappealed notices of assessment “shall be
recorded, enforced, and renewed in the same manner” as “the final judgment of a district
wurt.” Id. “If the liability secured by the lien is hdly paid, the wmmission shah mail a
release to the employer.” Labor Code 3 61.084. Although the provisions of Tax Code
chapter 113, subchapters A and B-applicable under section 61.082 to the wmmission’s
enforcement of its liens-provide for the assignment of “judgment[s] perpetuating and
foreclosing. . . tax lien[s] for the amount of the taxes covered in the judgment,” Tax Code
5 113.107(a), they make no provisions for assignment or transfer of liens appropriate or
applicable to the assignments and transfers you ask about, which we assume would not
involve consideration, at least in amounts equal to the underlying debts. See uLru Tax
Code $4 111.251 - .255 (specific provisions for assignment of state tax claims upon
payment by assignee of taxes, fines, penalties, and interest due).
Had the legislature intended to authorize the kinds of assignments or transfers you
ask about, we think it would have specifically done so, in the manner that it has specitied
other means of enforcement of the hens and notices of assessment. Again we conclude
p. 1899
Mr. W& Grossenbacher - Page 4 (uu-356)
that the wmmission lacks authority to transfer or assign a lien or notice of assessment
based on unpaid wages, under chapter 61, to the wage claimants
You also ask whether “a wage claimant for whose use and benetit the State of
Texas [holds a hen or] has perfected a Notice of Assessment precluded from pursuing on
his own statutory and common law remedies to get execution on that [hen or] Notice of
Assessment because it was created in the name of the State?” We assume that you are
asking here about situations where the wmmission has not assigned or transferred the
liens and Notices of Assessment to the employeekhtimant. Also by “perfected a Notice of
Assessment,” we understand you to refer to a notice of assessment that, because it was
unwntested or upheld after judicial review, is to be “treated as if it were the tinal
judgment of a district wurt.” See Act of May 21, 1993, 73d Leg., R.S., ch. 456. 5 2,
1993 Tex. Sess. Law Serv. 1833,1834.
Wah respect to Uens, we find no authority for a person other than the
“lienholde?‘-here, the State of Texas&to “get execution” thereon. See 50 TEX. JUIL 3D
Liens $8 31- 33 (1986) (and authorities cited there). Also, as discussed above, we
believe that chapter 61 of the Labor Code and the provisions of chapter 113 of the Tax
Code referenced there provide the exclusive procedures for enforcement of the hens in
question. Section 61.082 imposes the duties and authority of enforcing these liens on the
wmmissioner. Similarly, as for Notices of Assessment which have wme to have the
effect of wurt judgments, we tind no authority for a person other than the “owner” of a
judgment-here, the State of Texas-to obtain a writ of execution thereon. See 34 TTX.
JUR. .?G&rcemeni of Judgments$6 (1984) (and authorities cited 01ere).~
%imilarly,aiaceassi.$mueat
or tmnsfer,
withoutamsidmation,ofliensandnoticesof-
whichiwhded penaltyassmmcm owdtuthe wmmimtoumlherthantheanploye&Mmentwould
clearlyrun afoulof amstitutional
prohibitions
on grants,seeTar. ComXart.III, 5 51,WCthinkthattbc
lcgishmwWtdimvcspcciflcauyplwi~forthemvumIa ofthtintemsufmmthelienornotiaof
astsmmd tobe tigned or tlausferred hadit contemplatedsucha.Wigmncntsor tmnsfem.
p. 1900
Mr. William Grossenbacher _ Page 5 (DM-356)
The Texas Employment Commission lacks authority to transfer
or assign a lien or notice of assessment based on unpaid wages, under
chapter 61, Labor Code, to the wage claimant. The wage claimant
may not directly get execution on a lien or notice of judgment held by
the commission in the name of the state:
DAN MORALES
Attorney General of Texas
JORGE VEGA
Pii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Committee
Pmpared by Wdliam Walker
As&ant Attorney General
p. 1901