Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Jackie W. St. Clair Opinion No. H-845
Commissioner
Texas Department of Labor and Re: Authority of the
Standards Texas Department of Labor
P. 0. Box 12157, Capitol Station and Standards in the
Austin, Texas 78711 enforcement of the pre-
vailing wage statute,
article 5159a, V.T.C.S.
Dear Commissioner St. Clair:
You have requested our opinion regarding the authority
of the Commissioner of the Texas Department of Labor and
Standards to enforce article 5159a, V.T.C.S., the "prevailing
wage" law. Article 5159a provides, in section 1:
Section 1. Not less than the general
prevailing rate of per diem wages for
work of a similar character in the
locality in which the work is performed,
and not less than the general prevailing
rate of per diem wages for legal holiday
and overtime work, shall be paid to all
laborers, workmen and mechanics employed
by or on behalf of the State of Texas,
or by or on behalf of any county, city
and county, city, town, district or other
political subdivision of the State, engaged
in the construction of public works,
exclusive of maintenance work.
The public body awarding the contract is directed to:
p. 3562
The Honorable Jackie W. St. Clair - page 2 (H-845)
ascertain the general prevailing rate of
per diem wages in the locality in which the
work is to be performed for each craft or type
of workman or mechanic needed to execute
the contract, and [to] specify in the call
for bids for said contract, and in the
contract itself, what the.general prevailing
rate of per diem wages in the said locality
is for each craft or type of workman needed
to execute the contract, also the prevailing
rate for legal holiday and overtime work . . . .
Sec. 2.
Furthermore, any contractor who fails to pay the prevailing
rate is required to forfeit the sum of ten dollars per day,
per worker, and the contracting public body is required to
insert this stipulation into every contract. Section 2
also directs the public body to "take cognizance . . . of
all violations . . . and, when making payments to the
contractor . . . to withhold and retain therefrom all sums
and amounts which shall have been forfeited . . . ."
Article 5159a does not refer to the Texas Department of
Labor and Standards, or to its Commissioner. The statute is,
however, included in Chapter 3 of Title 8.3of the Revised
Civil Statutes, Article 5159, also included therein, provides:
The Commissioner of Labor Statistics
[presently the Commissioner of Labor
and Standards] shall inquire diligently
for violations of this chapter and
institute prosecutions and see that the
same are carried to final termination
and generally to see to the enforcement
of the provision hereof. (Emphasis
added).
When article 5159 was originally enacted, in 1915, it read,
in pertinent part:
It shall be the duty of the Commissioner
of Labor Statistics to inquire diligently
for violations of this Act . . . .,
(Emphasis added). -
p. 3563
The Honorable Jackie W. St. Clair - page 3 (H-845)
As originally enacted, article 5159 appeared as section 3 of
an act regulating the time period for payment of wages to
certain employees.
When the Civil Statutes were revised and codified in
1925, the word "chapter" was substituted for "act" in newly
revised article 5159. At that time, there was only one
substantive provision in the "chapter." Article 5159a was not
enacted until 1933, and there was no indication in that Act
where the statute was to be placed in relation to other
statutes. Both article 5159a and article 5159 were subse-
quently grouped by West Publishing Company into the Title
83, Chapter 3 series as it appears today. While a reading
of the statutes as printed in Vernon's Texas Civil Statutes
would suggest that the Commissioner has enforcement duties
under the prevailing wage law, there is no legislative act
which would indicate that the enforcement provisions of
article 5159 were intended to extend to article 5159a, the
prevailing wage law. The apparent relationship between the
two statutes is the result of action by the publishing company
and not the Legislature. As a result, it is our opinion
that the enforcement duties presently imposed upon the
Commissioner by article 5159 do not embrace the provisions
of article 5159a.
We believe this conclusion is mandated by the Supreme
Court's decision in Texas Highway Commission v. El Paso
Buildin and Construction Trades Council
~n~950). In that case, a labor'o:~~n?k~;%""'
challenged the prevailing wage rate set by the Texas Highway
Commission. The Supreme Court noted that, prior to its
amendment by the Senate, the original version of article
5159a had provided that the Commissioner of Labor should
make the final determination in any dispute involving the
prevailing wage rate. But, as the Court observed,
[tlhis provision was deleted from the
bill before final passage and the present
Pr;;zsion substituted so the Act now
: 'The term 'general prevailing
rate of ner diem waces' shall be the
in the matter shall be final.' (Emphasis
~d~,234S.w.zd=~
p. 3564
The Honorable Jackie W. St. Clair - page 4 (H-845)
The Court concluded, "[wle fail to see how more clear language
showing the intention of the Legislature could have been used."
Id. Thus, it appears from prior case law that the Commis-
zoner of the Texas Department of Labor and Standards is
neither required nor permitted to enforce the provisions of
article 5159a.
Your next five questions inquire about the investigatory
and administrative authority of the Department under article
5159a. As we have indicated, the Department has no respon-
sibility under that statute. The Commissioner is?iven no
authority to inquire into the prevailing wage rate set by a
public body; to ascertain whether such rate is correct; or
to take any action whatsoever regarding the public body's
determination.
You also ask a number of questions as to the duties and
responsibilities of public bodies under article 5159a. The
answers to
. . these
_ questions depend largely upon the facts of
eacn particular case, and, absent
. specific examples, we are
unable to address these inquiries.
Finally, you ask what is embraced within the meaning of
"legal holiday" in section 1 of article 5159a, which requires
a public body to pay "not less than the general prevailing
rate of per diem wages for legal holiday and overtime work."
Article 4591, V.T.C.S., enumerates those dates which "are
declared legal holidays." In our opinion, therefore, a
particular date is a "legal holiday" for purposes of article
5159a if it is included within the enumeration of legal
holidays in article 4591.
SUMMARY
The Commissioner of the Texas Department
of Labor and Standards is neither required
nor permitted to enforce the provisions of
article 5159a, V.T.C.S. A particular date
is a "legal holiday" for purposes of article
5159a if it is included within the enumeration
of legal holidays in article 4591, V.T.C.S.
Attorney General of Texas
p. 3565
The Honorable Jackie W. St. Clair - page 5 (H-845)
Opinion Committee
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p. 3566