TBDC ATNDISNF,Y GENERAL 

OF %-ExAs 

All-. - 7e711 

March 29, 1977 

The Honorable Eddie Bernice Johnson Opinion No. H-965 

Chairperson 

Labor Committee Re: Constitutionality 

House of Representative6 of Fire and Police 

Austin, Texas 10767 Employee Relation6 

Act. 

Dear Chairperson Johnson: 

You have requested our opinion concerning whether article 

5154c-1, V.T.C.S., ia an unconstitutional delegation of 

authority. Article 5154c-1 provide6 for collective bargaining 

by police and fire employees where authorized by the voters 

of a political subdivision. Sec. 5. Section 10 provide6 

for voluntary arbitration in the event of an impasse, and 

section 16 provides for judicial action when a political 

subdivision elects not to submit an impasse to arbitration. 

Section 20(b) states that a collective bargaining contract shal 

take precedence over state and local civil service provisions 

where the contract so provides. Thus, in the event of an 

impasse, the act provides for a delegation of the authority 

to fix the terms of employment to an arbitration board or 

the judiciary. 

Section 11 of article 5154c-1 provides for the voluntary 

selection of an ad hoc arbitration board to resolve an impasse; 

its provi6ions operate independently of the General Arbitration 

Act. V.T.C.S. art. 239, et seq. While we have discovered no 

Texas cases dealing with such a delegation, the rulings of 

courts of other states have been held applicable to Texas "on 

the subject of delegation of legislative power." Trinunier v 1 

Carlton, 296 S.W. 1070, 1079 (Tex. 1927). 

The validity of collective bargaining statutes requiring 

compulsory, binding arbitration for public employees has 

recently been examined by the court6 of several states. 

Such statutes have been generally upheld againet attacks 

based upon an alleged unlawful delegation of authority to ad 

hoc arbitration panels. -- Town of Arlington v. Board of --- 

p. 4021 
The Honorable Pddie Bernice Johnson - page 2 (X-965) 

Conciliation and Arbitration, 352 N.E.Zd 914 Mass. 1976); 

'~h%&%f%& ~~~.~~':3~'~~E::~6290 

(N.Y. 1975); Cit orwarwick v. i&wick Re ular Firemen'6 

Assoc., 256 A. -d zbb(R.I,Tgm6V);State * of LaramZe, 

m2d 295 (Wyo. 1968). In Cityofize or c mrd 

Teacher's Assoc., 304 A.2d 387 (Me.T973), the c=rt ruled 

that such aqation would be lawful where sufficient 

standards are given for the exercise of the delegated 

authority, but held the act before it unconstitutional for 

lack of such standards. In Dearborn Fire Fi hters Union No. 

412 v. Cit of Dearborn, 231 N W 2d 2237NbS~e70tr 

judges -7% sp it evenly on the queition of whethe; such A delegation 

could be made to an ad hoc arbitration panel. The only 

courts which have held such a delegation to be unconstitutional 

regardlea of standards have done so pursuant to constitutional 

similar to that of Texas is that such a delegation is proper 

where sufficient standards are provided. Of course, such 

standards are clearly necessary under Texas law. See, e. ., 

d.13140)1 A 

Housin Authority of City of Dallas v. Hi inbothaiiiiii14 S W 2d 

ttorney Gcemtter - -i%+%& 42%7h. 

In light of the authorities concerning compulsory 

arbitration, it is our opinion that the courts of Texas 

would uphold the voluntary arbitration and collective bargaining 

provisions of article 5154c-1 so long as sufficient etandards 

have been provided. Section 4 of the act provides that 

political subdivision6 shall provide firemen and policemen 

with "compensation and other condition6 of employment . . . 

which prevail in comparable private sector employment. . . .I 

Section 13(a) provider that an arbitration panel is to 

consider "hazards of employment, physical qualifications, 

educational qualifications, mental qualifications, job 

training, and skills," among other factors, in reaching a 

decision. We believe it clear that euch arbitrators should 

likewise consider the standard provided in section 4, su ra. 

These standard6 are substantially identical to those foun % 

sufficient in the aforementioned authorities. See Town of 

Arlington v. 

-- 

Board of Conciliation and Arbitrat%i, supra; 

City o-f Amzerdam v. Heleby, supra;& of Warwick vL Warwick - 

p. 4022 
The Honorable Eddie Bernice Johnson - page 3 (H-965) 

Regular Firemen's Assoc., supra. Accordingly, in our 

opinion sufficient standards have been provided for the 

exercise of authority by an arbitration board convened 

pursuant to article 5154c-1 and the delegation of such 

authority is constitutional. 

Section 16 of article 5154c-1 provides that in the event 

a political subdivision elects not to arbitrate, the collective 

bargaining association may bring an action in district court 

and that the court 

ehall have full power, authority, and 

jurisdiction to enforce the requirement6 

of Section 4 hereof as to any unsettled 

issue relating to compensation and/or other 

terms and condition6 of employment for 

firefighters and/or policemen. 

If the court finds the political subdivision to be in violation 

of section 4, it "shall . . . declare the compensation and/or 

other terms and conditions of employment required by Section 

4...." 

As previously noted, section 4 provides for: 

compensation and other conditions of 

employment that are substantially the 

same as [those] . . . which prevail in 

comparable private sector employment. . . . 

The fixing of salaries and terms of employment is a 

legislative or administrative act. Highway Cormnission v. 

El Paso Buildin and Construction Trades Council, 234 Sx.2d 

857-x4 w Assoc.ofrris Count% v. City 

of Houston, 105 S. . (Tex.9=). Tex. o=t. 

Gt. 3, s 44. We have found no Texas casein which a court 

has fixed compensation and other term6 of employment. See 

Austin Fire and Police Departments v. Cit of Austin, 21B 

S.W.Zd m($%.m; Fire Department --+- o wmort -- Worth 

v. Cit of Fort Worth, 2fl.W.Zd 664 (TG. 1949). 

ZeE+h-- 

In our 

t e fixingofompensation is analogous to rate-setting. 

It is well established that the doctrine of separation of 

powers precludes a court from setting rates; it may only review the rates set to determine their legality. State v. 

526 S.W.Zd 526 (Tex. m75): 

93 S.W.Zd 372 

; WiSSOUri, K. --- 6 T. Railway -- Co. v. Empire EXpre6S 

p. 4023 
The Honorable Eddie Bernice Johnson - page 4 W-965) 

Co.* 221 S.W. 590 (Tex. Comm'n App. 1920, jdpt. adopted). 

The courts have required a certain rate only under statutory 

provisions requiring equality of rates and evidence of a 

certain rate charged by one of the parties to others. Edin- 

&gL:Eg;t:;; Co. v. Paschen, 223 S.W. 329 (Tex. Civ.K -- 

O),an'mS.W. 1085 (Tex. Comm'n App. 

1922, judgmt. adopted). 

While section 4 of article‘5154c-1 requires '6ubatantially 

the same* compensation as that prevailing in the private 

sector, this standard falls far short of the precisenes6 

of the requirements enforced in Xdinbur 

quite similar to that of section dkm?v%?$ and 

of San Francisco v. Cooper, 534 P.2d 403 (Ca . - 

ZiTinvolved a zanenge to the legality of an 

ordinance which set the compensation and term6 of employment 

for public employees. The court began its analysis by noting 

that the ordinance was "clearly legislative in nature." Id. - 

at 411. The court explained: 

In'addition, because a fair prevailing 

wage determination may take into account 

many component elements - such as various 

fringe benefits - which are frequently 

not susceptible to precise appraisal, a 

substantial measure of legislative dircretion is inevitable. Id. at 417. - 

See Christy-Dolph v. Gragp, 59 F.2d 766 (W.D. Tex. 1932). - 

Consequently, when a district court sets the terms and 

conditions of employment in accordinance with l eotion 4 of 

article 5154c-1, it inevitably exercises legislative 

discretion. Such an exercise of legirlative powerr by the 

judiciary is specifically prohibited by article 2, rection 1 

Accordingly, in our opinion, 

section 16 of article 5154c-1 unconstitutionally delegated 

legislative power to the judiciary. 

p. 4024 
, ,,. 1 

The Honorable Eddie Bernice Johnson - page 5 (H-965) 

SUMMARY 

The delegation of authority to an arbitration board to fix compensation and other terms 

of employment under article 5154c-1 is constitutional. The delegation of such authority 

to the judiciary by section 16 of article 5154c-1 

violates article 2, section 1 of the Texas 

Constitution. 

APPROVED: 

Very truly yours, 

NDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

km1 

p. 4025