DAN MORALES 

Al-rORNEI GENERAL 

@ffice of tip 2lttornep 6knetal 

&ate of Qexas 

May 20,199l 

Honorable Carl A Parker 

chairman 

Education Committee 

Texas State Senate 

P. 0. Box 12068 

Austin Texas 78711 

Opinion No. DM-25 

Re: Meaning of the locality in which the 

work is performed” for purposes of article 

S159a, V.T.C.S.. the prevailing wage statute, 

and related questions (RQ-2189) 

Dear Senator Parker: 

You ask whether the interpretation of V.T.C.S. article 5159a, which you say 

the Texas Department of Criminal Justice (hereinafter, TDCJ”) has adopted, is 

correct. That article provides generally that laborers on a public works project of 

the state or any of its political subdivisions are to be paid ‘[n]ot 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,” as determined by the public body authorizing or 

contracting for the work, with such wage rates to be specified in the call for bids and 

in the contract for such work. You state: 

According to TDCJ, when letting a bid for construction of a 

prison site, they believe this particular article shows them the 

discretion to determine that ‘locality in which the work is 

performed’ does not particularly mean the specific county but 

rather any political subdivision in which the proposed site is 

located. After making that determination, TDCJ further 

believes that it is at liberty to set the prevailing wage in the bid 

based on the area’s prevailing wage rather than the prevailing 

wage in the ‘locality in which the work is being performed.’ 

You ask two questions based on your description of TDCJ’s interpretation of 

article 5159a: 

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Honorable Carl A. Parker - Page 2 (DM-25) 

1. [DJoes ‘locality in which the work is being performed 

mean only the particular political subdivision in which 

the work is being wholly performed? 

2. Additionally, for purposes of article 5159a, what are the 

criteria and method for determining ‘general prevailing 

rate of per diem wages’? 

Article 5159a was Srst adopted in 1933. Acts 1933,43d Leg., ch. 45, at 91. 

The terms you ask about - “general prevailing rate of per diem wages” and “locality 

in which the work is performed” - are defined in section 4 as follows: 

The term ‘locality in which the work is performed’ shall be held to 

mean the county, city and county, ci&, town, dirtrid or other 

political subdivision of this state in which the building, highwuy, 

roaci, axzvation, or other stmcture, project development or 

improvement is situated in all cases in which the contract is 

awarded by the state, or any public body thereof, and shall be held 

to mean the limits of the county, city and county, city, town, 

district or other political subdivisions on whose behalf the 

contract is awarded in all other cases. The term : ‘general 

prevailing rote of per diem wages’shall be the rote determined upon 

as such rate by the public body awarding the contract, or 

authorizing the work, whose decision in the matter shall be final. 

(Emphasis added.) 

Both of your questions relate ultimately to how the TDCJ may determine 

“the general prevailing rate of per diem wages” under article 5159a. Citing the 

language of section 4 of the act, Texas courts have consistently held that such 

determinations are matters within the discretion of the public body awarding the 

contract or authorizing the work and not subject to judicial review. See Terac 

Highwq Comm’n v. El Pare Bkig. & Constr. Trades Council, 234 S.W.2d 857,858-59 

(Tex. 1950) (despite plaintiffs allegations that Highway Commission’s determination was unrelated to wages actually prevailing in El Paso and “did not cover the 

‘locality’of the City of El Paso, but covered a much wider territory,” court would not 

review such determination in view of provision of article 5159a that the 

determination of prevailing wage by public body authorizing or contracting for work 

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“shall be final”); C@ of Houston v. Houston Gulf Coast Bldg. & Corn@. Trades 

Council, 710 S.W.2d 181 (Tex. App.-Houston [lst Dist.] 1986, writ refd n.r.e.); 

Attorney General Opinions H-845 (1976); H-350 (1974); G-2059 (1940). However, 

we think it is clear. notwithstanding such non-reviewability, that the legislature did 

not intend the provisions of article 5159a to be disregarded by the public entities to 

which they apply. See 2A SrmnuuAND STATUTORY CONSTRUCTION 957.01 (4th 

ed. 1984). 

We believe that a state agency making a prevailing wage. determination 

should select as the “locality” on which it bases such determination the political 

subdivision most nearly corresponding fo the location of the work. In other words, if 

the work is to be performed within the corporate limits of a town, that town’s limits 

should be considered the locality” for article 5159a purposes rather than the entire 

county in which it is located. You suggest that the TDCJ construes the statute to 

permit a state agency making a prevailing wage determination the discretion to 

select as the “locality” whichever overlapping political subdivision it decided would 

have the lowest prevailing wages, in order to reduce its costs on the project. We 

reject this construction, because the purpose of the article - to protect workers in 

the immediate locality of the work from wages being driven down by payment of a 

lower rate than was the locally prevailing rate - would be undermined. See 

Cullipher v. Weatherby-Godbe Constr. Co., 570 S.W.2d 161, 164 (Tex. Civ. App.-- 

Texarkana 1978, writ refd nr.e.); Southern Prison Co. v. Rends, 110 S.W.2d 606, 

609 (Ten Civ. App.-Amarillo 1937, tit dism’d). 

On the other hand, we think that certain factual scenarios may justify a state 

agency’s using a larger geographical area in determining the prevailing wages in a 

locality. For example, if a project called for a specialized kind of work that had not 

recently been performed in the immediate locality of the project, it might be 

impossible for the public entity to establish prevailing wages “for work of a similar 

character” in the immediate locality. In such cases, we think that the agency might 

reasonably look to a larger geographic area in which “work of a similar character” to 

that required on the project had been performed in order to establish a prevailing 

wage for such work. Compare, eg., 29 C.F.R. 1.7(b) (Secretary of Labor regulation 

adopted under similar provisions of federal Davis-Bacon Act, 40 U.S.C. 5 276a et 

seq., providing that if there has not been sufficient similar construction within area 

in past year to make determination, wages paid on similar construction in 

surrounding counties may be considered). 

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One letter we have received in connection with your request suggests that 

while the TDCJ project that prompted the request is to be constructed in Jefferson 

County (the Beaumont-Port Arthur area), the TDU is basing its prevailing wage 

determination on the Houston area, some 100 miles distant We think that article 

5159a would permit such a procedure only where unusual factual circumstances 

required it - eg., if no work of a similar character bad recently been performed in 

the subdivision most nearly corresponding to the location of the work. 

Article 5159a makes no provision regarding the “criteria and method” a 

public entity must use for determining prevailing wages beyond providing for the 

selection of the appropriate “locality.” Even apart from the non-reviewability 

provision of the article, such lack of legislative specification of the “criteria and 

method” for making the prevailing wage determination evidences a legislative intent 

to leave the choice of such methods and criteria to the public entity responsible for 

making the determination, so long as the resulting determination reasonably reflects 

the actual “general prevailing rate of per diem wages” in the locality in question. 

Determinations of prevailing wages in a locality made by the Secretary of Labor 

under the Davis-Bacon Act, 40 U.S.C. Q 276a u seq., union wage scales, and similar 

data would be available to the public entity in making the requisite determinations 

under article 5159~ See &o Attorney General Opinions JM-1164 (1990) (it is 

proper to include fringe benefits in calculating prevailing wage if it is determined 

that payment of fringe benefits is the prevailing practice in the locality; following 

Attorney General Opinion H-350); JM-329 (1985) (if public entity used a “weighted 

average” standard, and that standard was different from a “prevailing wage” 

standard, it had “failed to comply with the statute”). 

We note, finally, that you do not raise and we consequently do not address 

any issues here as to the applicability of federal law to TDCJ projects in question. 

See, eg., Attorney General Opinion M-809 (1971) (applicability of wage 

requirements of Davis-Bacon Act, 40 USC. 0 276a er seq., to certain federally 

assisted projects). 

The term “locality in which the work is performed” in the 

prevailing wage statute, article 5159a. V.T.C.S., generally refers 

to the political subdivision most nearly corresponding to the 

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location of the work. The criteria and methods for determining 

“the general prevailing rate of per diem wages” under that 

statute are matters within the discretion of the public body 

authorizing or contracting for the work, so long as the resulting 

prevailing wage determination reasonably reflects the actual 

“general prevailing rate of per diem wages” in the locality in 

question 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

Fit Assistant Attorney General 

MARY KELLER 

Executive Assistant Anorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

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