. 

OFFICE OF THE ARORNEY GENERAL OF TEXAS 

AUSTIN. 

Rcnoreble C. R. PElller, Commlsaicner 

Tezas Jnemgloyment Compensation 

Austin, Texas 

Doer Sir: 

which reads as follows: 

“1s the regulation c.,uotod ,a valid one 

under the Constitution of Texas’?” 

After carefully considering the above letter, we 

concluded that the only constitutional question involved 

?:herein is whether the LeCislaturo onn validly authorize 

the Texas Unemployment Corzpensation Commission to derine 

n~‘;eek” es is authorized in Article 5221b-17(p), supra. 
__._-- - - 

Honorable C. R. killer, Page 2 

The definition of *week” becomes important in 

determining if and when an employer beoomes an employer 

subject to the provisions ot the Unemployment Compensation 

Act, same beinS Artiole !3221b, Chapter 14 of Title 83, 

Vernon’s Annotated Civil Statutes. Seotion (i) (1) of. 

Artiole 5221b-17, Vernonle Annotated Civil Statutes, read6 

as r0u0ws: 

“(f) *Employer* means 

“( 1) Any employing unit which for some 

portion of a day but not neoessarily sizmultaneously, In each of twenty (20) different weeks, 

whether or not such weeks are or were consecutlv’e, within either the cu.-rent or the 

preceding calendar year, has oz bad in employment eight (8) or more individuals (irrespective 

of whether the same individuala are or were 

employed in each such day) :” 

To illustrate the point lr.volved, suppose an 

employer employs eight persons for eighteen calendar weeks. 

At the end of the eighteenth week orie employee is dismissed. 

At a later date, but within the same calendar year, the employer employs a person who works fcr seven days, beeinning 

amploymant on Wednesday and terminating employment on the 

follo~wing Tuesday. Under the provision8 of Rule No. 37, 

promulgated by the Commission by virtue of Article 5221b-17(p), 

the seven days work constitutes employment during parts oi two 

different weeks rather than one entire week’s employment, and, 

therefore, the employer is subjeot to the provisions-oil the._: 

Unemployrient Compensation Act as provided in Seotlon (f ) (1) 

of Article 5221b-17, supra, 

The legislative power of the State is vested in 

the LeSislature by Artiole 2, Sect102 1 of the Constitution 

of Texas and same reads as follows: 

“The powers of the Government of the 

State of Texas shall be divided into three 

distinct departments each of which shall be 

confided to a separate body of SiaSistraOy, 

to wit: Those whioh are Legisletive to one; 

those whioh are Exeoutive to antther, and those 

which are Judicial to another; end no person, or colleotlon or pcraons, being of one 

of these departments, shall exercise any 

power properly attaohed’to either of the 

others, except in the instances herein expressly permitted,” 
Xonornble C. R. Killer, Page 3 

Generally speaking, the Legislature cannot delegatr ' 

the power of making laws to any other body. Green v. City 

oft Amarillo, 244 S. W. 241 (Affirmed 267 2. '1. 702). This 

doctrine is Bet forth in 16 Teze8 Law Review 20 which reade, 

in part, a8 r0lhi8: 

"The constitutional provisions which are 

held to forbid delegation of pcwer are those 

which set up the separation of powers. Gov emmental power8 are usually divided among the 

executive, ,judloial, nnd legislative branches. 

The separation of powers e8tZibliBhed by’the 

Federal'Cons tituti on operates es on implied 

llmitotion; that 18, slnae legislative power 

is vested in Congress, the presumption or 

implicetion is that such power may not be given 

to one of the other branches. In the Texas. 

Constitution, however, this separation of 

power8 is not left to lmpllcatlon; It is 

specirically~proviaed that no one of the three 

branches may'exarcise powers properly belonging to the other. The effect Of this SePara%&On 

.6f goviers 88 a limitation on governmental 

action 18 felt more forcibly by the legislative 

body than by the other branches, beCEu8e it Is 

the polioyforming agency or the government 

and has been aseigned the duty Of allocating 

the function8 of government undistributed 

by the Constitution. 

"A doctrine whi'ch has arisen a8 a sort 

of buttress to, the separation or powers and 

which hi8 assumed'a POSitiOn Of primary importance in Am-rioan oonstltutional law 18 that 

delegated power may not be redelegated. One 

of the earliest and best expression8 Of the 

Idea is found in Looker 

"*The legislative can:not transrer the power of making la-x8 to 

any other band8 for, it being but 

a delegated power from the People, 

they who have it oannot Pass it 

over to others.** 

Rotwithatanding, it ha8 been a long established 

fact that the Legislature Possesses many Power8 whlih maY ba 
Eonorable C. R. :.filler, Page 4 

exercised by it direotly or through some othor designated 

aCcncy or body. In Burges8 v. American Rio Crande Land 

eC Irrigation Co., 

said: 

295 S. W. 649 (Wit refused), the court 

"The Legislature cannot delegate Its 

pcwer to amke laws, nor can it clothe any 

other agency of government with Judicial power 

except csurts. That fundamental rule, however, 

mu-t have some apparent, though not real, 

exceptions. The customs of the ages have 

given the Legislature the power to create 

agencies to carry out the legislative intent 

and administer detail8 in matters conducting 

to the prosperity end Li8efUbISS.3 which could 

not be fld.miniBtered, for obvious reasons, by 

the Legislature. To such agencies the Leglslsture doss not delegats the ?ower held by 

it alone to enact laws but clothe8 them with 

the powers of administration of laws created 

by the Legislature. . . ." 

The Legislature provlded that the word "'week' means 

such period of ssvsn.(7) consecutive calendar Gays as the 

Conmission may prescribe." The Legislature undoubtedly 

realize? tGt the Commission, after n long and careful study 

of the em?loyr?ent 4tutlon in Texas, would be in a better 

position to determine what particular seven consecutive days 

would best ocnstitute a Week" to er:?ectively carry out the 

purposes of the Une:%ploynent Compensation Act in Texas. 

The Legislature recognized that in certain situations 

It might be necessary, in order to pzoperly administer the Unemployment Compensation L&ws of TeXz:J, that a Week" should 

constitute some particular seven con:3eoutive days. Therefore, 

this natter was expressly given to t::e Cormission to decide. 

It cannot be sala that the Legislatuze did not set a bnsio 

standard or to provide a definite po:icy or rule of action 

ror the Comnission to r0ii0w. Artic1.e 5221b-17( p), supra, 

provides that a week must contain seven days and, further, 

that the particular seven day8 must be consecutive. ?he Commission is given no discretion in the, matter except designating the partioular 8even days. The Commission cannot 

declare a we-k to be six day8 nor can it declare that a week 

shall constitute eight days. Neither can the Commission 

enact a rule to the effeot that a week shall conetitute 

seven pertioular day8 which are not in OOU8eOUtiVe order. 
Scnorable C. R. Killer, Pace 5 

For the rsascns herein stated, we are of the opinion. 

that neither Article 5221b-17(p), tupra, &living the TeXa8 

Gilenploy.3nt Cozpensatlon Cormlssicn the authority to define 

*I :':Q ek , " nor Wgulation No. 37 of the Comlseion whioh derines 

"'Yeeic," Is invalid 8s being an unlawrul delegation or exeroiso 0r legislntive authorrity. 

Yours very truly 

ATTORNEY GEX?XAL OF TX&3 

BY 

Glenn R. Lewis 

Assistant 

XLLee Shoptaw 

LS:eaw