OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

AUSTIN 

Bon. Jo. Kunsohik, Cori8slormr 

&me8U of I&or bt8tlstlos 

Audln, Tous 

Dsrs sir, 

,I, 

Oplni0B wo. O-2059 '\,. \ 

Be: whbthbr or n0t '&v8, Deputment Otmpti"rikh# ablmtm 

vego on+ybllo vork# laws. 

Th8Bk you for 

in& thb apiaion of this 

or not tab Toxu Stab 

po~i~i088 0r md0lb 

insofu u 8 ocnrtr8ot 

falloatouoortdn 

Pbr' diON V8@. iB 

or type of VorkmB or 

b OontMot fo thb OOBbr l y stb nl o n mgh v8ly o . 

in TM ViB c o unty. 

body 8h&lMOeP- th. ~nW8l~V8i~~bin 

thb lootiity lnrhiohthowrk 18 to k p.?,to=d ioF 

eaoh 0-t or tn. O? VO?km8~ or medm~i0 BMdbd t0 

l xeOUte the OOntl'0Ot, and th~l 8peOifJ 8UOh W48 8-O 

in it8 call ?or bid8 anb in the oantrrat it8Olf.' 
Bon. Joe Kunachlk, Prge 2 

Artlola 51598, Veron'o bnnotatod Civil Statutea, Acta 

1933, 43rd Legislature, p. 91, oh. 45, read3 a8 follovs: 

"3ec. 1. Not less than the general prevailing 

rate ot per diem vases for uork of G slmllar character 

in the looallty In vhlch the vork is perfomd, and not 

leer than the general PrevallIng rate of psr diem vages 

Sor legal holiday and overtime vork, ohall bs paid to 

all laborers, vorkw~~~ and ntschanlc~ employed by or on 

behalf of the St&to oi Tex&3, 01' by GI- on bahalf of 

a?g county, city and dounty, city, tom, dlotrlct OF 

other polltioal rubdivision of tho State, engaged in 

the oonstructlon of public vorks, exclusive of maintenance work. Laborera, vorkmn, and meabanlcs mployod 

b3 contractorb or subcontraotors ir, the execution of 

any contmbct or contraota Par Fiblic works vlth the 

State, or any officer or public bcdy thereof, or in the 

exeoutlon of any contract 01’ contracts for public vocks, 

vlth any county, city and oountg, city, tom, district 

or other political subdivision of tNs State, or any 

ofrlcer or ?ubllc body thereof, shall be dewed to be 

employed u;>on public works. 

R3ec. 2. The public body warding any contraat 

for public vork on behalf of the Ytato, or on behalf of 

any oounty, city and county, city, tom, diotrlct or 

other politioal 8UbdiV18iOn Ohersof, or othervlsc undertaklna any public vork, shall aaoertain the genolul 

preva.lllng rate or per dir vages in the locality in 

vhich the vork 1s to be perfomod for eaoli oraft or 

type of vorkman or meohanlc needed to execute the contract, and shall specify in the call for bids for said 

contract, and in the oontraot ItaeLf, what the general 

prevailing rata of per diem vages in the #aid locality 

is for each craft or type of v~rlmmn needed to execute 

tha contract, aloo tho prevalllng rate for legal holidsg and overtime voPk, and it ohall be nmndatory upon 

the contraotor to vhom the contmct la avardad, on3. upon 

any subcontractor u&or him, to pay not lees thsn bho 

said specified rates to all laborera, vorkmen and neohanlcs employed by them in the execution of the contract. 

The contractor shall forfelt aa a penalty to the State, 

county, city and county, city, tom, district or other 

polltical subdivision on vhoae behalf the contract Ia 

mbde or avarded, Ten Dollus ($lO.m) for each laborer, 

~~dsman or me=hanIo ewloyod, for each calendar day, or 

portion thereof, such laborer, vorkaan or meohaalo Is 
non. Joe Kunschik, Page 3 

paid less than the said otlyulatcd ratea for any work 

dons undar ml& contract, by him, or by any subcontractor 

ur.dar him, and the aald public body avardlng the contract 

shall cause to be Inserted In the contract a stipulation 

to this effect. It shall be tho duty of such pub110 body 

awarding tha oontract, and it3 agents and officers, to tako 

cognizance of Complaints of all violations of the prorlsions of this Act oommittsd In the course of tho execution 

of t&e uontraot, and, vhen making payments to the contraator of monies beuoming due under said contract, to 

vithhold and retain therefrom all sums and amounts vhlch 

shall have been forfeited purouaat. to tho herein said 

stipulation and the terms ot this Act; provided, hovevor, 

that no sum shall bo 80 vfthhold, retained or forfeited, 

exoept from the final paymsnt , vithout a fill lnvestigation by the avardin~ body. It ai be unlavful r0r my 

contraotor to vitbhold from any subcontractor under him 

stiflclcnt sums to Covar any penalties vlthhold from him 

by the warding body on account or’ the said subcontractor’s 

ralluw to comply vith the tonns of this Act, and if payment 

has already been audo to him the contractor may roomer 

from him the smount or the penalty or forfolturo in a 

suit at lav. 

“330. 3. The contractor and oath subcontractor 

shall kee;?, or cause to be kopt , an accurate record shoving the namea and OCCUpatLon3 of all laborera, vorkntm and 

machatica employed by him, in connection vlth the sald 

pub110 vork, and shoving also thn actual per diem vagsa 

puld to eaoh ot such vorkers , vhich record shall be open 

at all reasonable hours to the Inspection of the public 

body avardlng the contract, its o:ficors and agents. 

“3ea. 4. Any construction or reqair vork done 

undlirr contract, and paid for in vhols or in part out 

of the public funds, other than vark done dlrootly by 

any public utlllty company pursuant to order of the 

RaIlroad Comxlsslon or other public authority, vhsther 

cr not done under public suparvlslon or direction, or 

raid for ~-holly or in part out of public funds, ~211 

be held to ba ‘public vorks’ vlthln ~tho meanlry ot this 

Act. The t9rm I locality in vhich the vork la pertormod’ 

shall be held to mean the county, city and county, city, 

tovn, district or othar political subdlvlsion of this 

State in vhlch the building, highway, road, exaavation, 

or other structure, projeot, development or lmproveasnt 

is sltueted in all cases in vhich th3 contraot is 

warded by the Stato, or any public body thsreof, and 
Bon. Joe KunrrahIk, Page 4 

shall be held to n&u the llmltr, qf the county, city 

and county, oIty, tovn, district or other political 

subdlvlslons on vhoso behali the contract Is avarded in 

all othar cases. The term *general yrovalling rate of 

per dims vaps’ shall be the rate deterfined upon aa such 

rate by the publIo body avardIng the contract, or authorIelng the vork, vho8e declolon In :tho matter shall be 

final. Rothlng In this Act, however, shall be construed 

to prohibit the payment to auy laborer, vorkman or 

~chanlc employed on any PubUc vol‘k 03 nioresald of 

more thau the aald general prevalllr~ rate of vages." 

Tour rlrst questiozl Is vhether or not the Tombs State 

3Ighvsy Coxnlaslon coznes vlthln the provis1o.m of Artlclo 515ga, 

vo.~-non’s Annotated Civil Statutes , providing ror the pxw~aIlIng 

per dl&n vage r&to on publio vorks. 

The Texas IIIghvay CommIssIon is an M.mInlstratIvo 

agency of our State emtrusted vlth that segment of government 

daali$lg Vi*th the eatobllshment , m?dntonnnca and control oi :he 

st8ta m @rays. Article 6663 Vernon’y Amoated Civil Statutes; 

*itton v. 3tit.h (Clv. A p.) 

App.), 88 3.U. 

;;.I24 fm. 

(2d P 

$2 S.U. (26) lOc5; !+wks v. State 

131; Flslrn v. lkes, I.21 Tex. 355, 48 

In matters of judgment touahing its ftmctlona, 

I; is Invested with ride dlsoretloa. Johnson v. Ferguaon, 55 3.W. 

(26) 153, writ dlsalseed. Moreover, a controot asde by the State 

~i&hvay Comlaslon Is a contraot of the State. Artlole 6674k 

Vsrnon's Annotated Civil Statutesi Sherman v. 

279 3.V. 508. 

Case (Clv. App.! 

Consequently, vc hold that the State Aigbvay Commlsslon 

Is the "public bodf' dlrectad by the Legislature In Seotlon 2 of 

hticle 5159a, Vernon's Annotated Civil Statutes, to ascertain 

the general prevalll~ rato OS psr diesi vagos and to specify 

t&e sama In Its calls fw bldii. 

In tbiu conhectlon you point out that; 

"In theso protests, our attontlon vas called to the 

,CAct that the Texas State FIlghvay Department had advertised a scale of va@8, vhIch for aovoral types of vorkmen, vES huer than the scale being paid on the Harsh~ll 

Ford daa project and the wale being paid on vcark for the 

Travis County Hater Control and Improvsmnt Dlstriot Ko. 

1, as ~011 as on other construction vork In the City of 

Austin and in Trawls Countg.R 
lion. SOS Kunsohlk, paga 5 

The deteWnation and reguletlon of prevailing vags rates 

mcler ArtiCle 5159a 13 a legislative and not a judicial function 

(gocthem Prison Co. v. Rennels (C.C.A. 1937) 110 S.Y. (2d) 606); 

md an admlnistretive finding of that 

t 

revailing rate by the State 

mghvay Comslsslon 13 tlnal. Section of Article 5159, Vernon's 

hotated Clvll Statutes, Southern Prison Co. v. Rennels, supra. 

Please permit us to call your attention also to 

&ticle 667hp, Vernon'8 Annotated Civil Statutes, Acts 1911, 

42~d LeglsLoture, page 69, chapter 46, vhich deals specifically 

vith minimum wages for hlghwap labor and reada as follws: 

3ec. 1. Rereaftor the State Rlghvay Conunlsslon in 

letting contracts ior the construction, maintenance or improvement of any deslgmted State iii$wvey, ~hsll be authoTised to require that all contrectu f%r any such VOW%, 

co?ltaln a provision that no peroon vi11 be mployed, by 

the ccntractor, to perform manual labor in tho course of 

the constmiction, maintemnce or lmyrovenent of any such 

hlghvny at a uage of less than thirty cents per hour, u:d 

that any violation of any such provlslons of the contract 

by the contractor, subcontractor, or other person subject 

to such provision of tho contract, shall authorize the 

ComnLsslon to vlthhold f‘rom any noney duo the contractor 

a suf~lclent sum to pay any person such minfmum vage for 

any labor performed, or the Commission may, for the 

benefit of any euch person, r&over such sum on the bond 

of the contractor, if It does not have in its posaossion 

monq wing the contractor, applicable for such purposes. 

That citlxem or the United States and of the county 

wherofn the vork la being proposed shall alvays be 

f 

lven 

preference in such omploymmt; provided also that a 1 

other dspartzsents, bureaus, coamisslons md lnstltutlms 

of the Qtote of Texas in all construction vork of every 

character requiring employnont, of Cay labor shall llkevise be authorlsed and ompovered to exercise the same 

authorlty horoln conferrod on the State Ylghvag Comslsslon. 

%ec. 2. Hereafter, in advertising for bid3 for 

the construction, maintenance, or lmprovomnt of any 

designated State Hlgbwsp, the Comisslon, in the event 

it deolres to exercise th4 authority herein conferred 

to require a provision for such mlnlnnm vage, sball so 

state in the advertlsezaent, so that all bidders may be 

avaro of such requirement in subzzlttlng bids for such 

York." 
aon. Joe Kunschlk, Page 6 

Consequently, it XSSY be seen in harmonizing Articles 

9598 and 6674p, Vernon’s Annotated Civil Statutes, that vu14 

the State Ki@vay CO~SS~~ has the dut to detertsine and specify 

the prevailing wag4 Mts, it 14 also + .nvosted vith the :-over 

to require in Its contract that no person %-- 

s6nual labor In the course of the construe- 

~a, aslntenance and laprore3mnt of State hlghvays at a vage 

& 10s~ than thirty cents par hour. 

A final question remains to be ansvered and that 1s 

*&her or not a contract for the construction of a bvn sprinkler 

spsta on Rlghvay Iio. 81 north of Austin in Travis County constitutes the "construction of pub110 vorks" opoken of In Article 

95ga, Yoz’.QoD’S Annotated Cl~ll Statu?.ca, or the "constructioc, 

~~tenanc4 or improvement of any daslgnated State hlghvay" 

spoken of In Article 667&p, Vernon's Annotated Clvll Statutes. 

y. hold that such construction fulfills both requlremsnts. 

The definition of what shall constitute "pub110 vorks" 

1s specifiCally set out in Seatlon Ir of Artlcl4 5159a, Vernon's 

motated Civil Statutes, to read ea follws: 

*Any construction or repair work done under contract, 

and paid for in whole or in part out of the publio funds, 

. . . shall be held to be 'public vorksf vlthln the meaning 

of this Act." 

S8e also EIsploYers C2uIualty Co. v. Stuart Abstract co.. 

(Co& App. 1!%9), in VhiCh Jud@ Speer held that the construction 

or a county road Is a pub110 vork. Ue feel that the construction 

of a sprlnklor systea for the improveuont of a hlghvay also 18 

8 npnblfc vork" Vithin th4 m4ULing of Article 5159, Vernon’s 

motated Civil Statutes, and the "iaproveawnt 0r A d4signat4d 

stats Bighvar” vithln the ming of Article 6674p, Vernon's 

motated Civil Statutes. 

Consequently, It is the opinion of thin de~rtaont 

aad you am msP4Ctffily advised that the contract of the State 

fL1ghvay Commlsslon for the construction of a lavn s?rlnkler 

rJatsn on Elghvay No. 81, north of Austin in Travis County, 

vi11 be governed by the provlslons of both Artlales 5159a md 

g74p, VBCPOP'S Annotated Civil Statutes, that under the provis;om of Article 51594, Vernon's Annotated Civil Statutea, it la 

~0 duty of the l%lghvay Comalesion to nsoerttin the &moral. 

prsdllng vage rates In Travis County and specify the sama 
Eon. Joe Kmschik, Page 7 

for each onft or type of rorkaan or mechanic %n its call for 

bida (conditioned by its pover under Artlole 6674~~ Verncux's 

kpnouted Civil Statute8 ). @%XJ.@lly, thst the flndla#l of the 

u&vay Coxal8slon M to the prelaillng vage ntew am fInal. 

Yours very tray 

A!i’TORREY (mERAL OF ‘ncxA3