.

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,avalid 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 onnvalidly 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

Thedefinition of *week” becomes important in determining if andwhenan employer beoomes an employer subject to the provisions ot the UnemploymentCompensation Act, samebeinS 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) Anyemploying unit which for some portion of a daybut not neoessarily sizmultaneously, In each of twenty (20) different weeks, whether or not suchweeks 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 sameindividuala are or were employed in each such day) :” Toillustrate the point lr.volved, suppose an employer employs eight persons for eighteen calendar weeks. At the end of the eighteenth week orieemployee is dismissed. At a later date, but within the samecalendar year, the employer employs a person whoworks fcr seven days, beeinning amploymant onWednesdayand 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,

Thelegislative power of the State is vested in the LeSislature byArtiole 2, Sect102 1 of the Constitution of Texas and samereads 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, andthose which are Judicial to another; end noperson, 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 oftAmarillo, 244 S. W.241 (Affirmed 267 2. '1. 702). This doctrine is Bet forth in 16Teze8 LawReview 20which reade, in part, a8 r0lhi8:

"The constitutional provisions which are held to forbid delegation of pcwer are those which set upthe separation of powers. Govemmental power8 are usually divided amongthe executive, ,judloial, nndlegislative branches. The separation of powers e8tZibliBhed by’the Federal'Cons titution operates es on implied llmitotion; that 18, slnae legislative power is vested in Congress, the presumption or implicetion is that such power maynot 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. Theeffect Ofthis SePara%&On .6f goviers 88 a limitation on governmental action 18felt moreforcibly bythe legislative body than by the other branches, beCEu8eit Is the polioyforming agency or the government and has been aseigned the duty Ofallocating the function8 of government undistributed by the Constitution. "Adoctrine whi'ch has arisen a8a sort of buttress to,the separation or powers and which hi8 assumed'a POSitiOn Ofprimary importance in Am-rioan oonstltutional law 18that delegated powermaynot **be** redelegated. One of the earliest andbest expression8 Ofthe Idea is found in Looker

"*The legislative can:not transrer the power of making la-x8to any other band8for, it being but a delegated power from the People, they whohave it oannot Pass it over to others.** Rotwithatanding, it ha8been a long established fact that the Legislature Possesses manyPower8whlih maYbaEonorable C. R. :.filler, Page4

exercised by it direotly or through someothor designated aCcncy or body. In Burges8 v. American Rio Crande Land eCIrrigation Co., said: 295 S. W. 649 (Wit refused), the court

"The Legislature cannot delegate Its pcwer to amkelaws, nor can it clothe any other agency of government with Judicial power except csurts. That fundamental rule, however, mu-t have someapparent, though not real, exceptions. The customs of the ages have given the Legislature the power to create agencies to carry out the legislative intent andadminister 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 themwith the powers of administration of laws created by the Legislature.

. . ." TheLegislature provlded that the word "'week' means such period of ssvsn.(7) consecutive calendar Gays as the Conmission mayprescribe." TheLegislature 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.

TheLegislature recognized that in certain situations It might be necessary, in order to pzoperly administer the Unemployment Compensation L&wsof TeXz:J, that a Week" should constitute someparticular 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 adefinite 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. TheCommission cannot declare awe-k to be six day8 nor can it declare that aweek shall constitute eight days. Neither can the Commission enact a rule to the effeot that aweek shall conetitute seven pertioular day8 which are not in OOU8eOUtiVe order.Scnorable C. R. Killer, Pace 5

For the rsascns herein stated, weare of the opinion. that neither Article 5221b-17(p), tupra, &livingthe 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?XALOFTX&3

BY Glenn R. Lewis

Assistant

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