OFFICE OFTHE A~ORNEY GENERAL OFTEXAS 

AUSTIN 

a.ruLo~- kH.Xleatfonoroblr, Weaver 8. Baker, Chaiman 

Board of Control 

i\ustin, Tsxas 

Sear Sir: 

na of Article 

when through 

ake or fist8 

at bstween the 

ontrol and the 

pr0~id~ r0r 8 

Your Letter and the encloauros enumerated revealed 

,the rouowing ruots: 

(1) The speoiriaations mda by you on rhloh %ord 

Conetruction Company baaed its bid oontained the follo*sfn% 
1 . 

870 

-5onorable :;eavur ii. hkzr, page 2 

*L;sJ:.H ;i;;* ,I: I:Y;i>, L.;iTy: 

“The provisions of the prevailing wage law, 

Ii. 8. 30. M, Chapter 4b, Aots or the iiceular 

Semion of the Bortp-thtrd b@slature will be 

In etreot on this aontract. The stipulated prorailing rate or per Diem wages for thls contract 

15: 

aClass “Per hour 

ntr* 

a*** 

“Ploatarers 

n+** 

Iv+** 

I)**. 

$l.W 

The Contruotor ahull r0rreit 8s a penalty to 

the Jtote ten ($13.00) dollars ros suoh laborer, 

workma or meohanle employed, ior eaah calendar 

day, or portion thereof, such laborer, mrkmen, 

or meohaaio ia paid less than the mid stipulated 

rates for any work done under said oontrnct, by 

him, or by any suboontraotor under him.* 

(2) By letter dated Pobruary 4, 1942, the looal 

Flnsterers’ tinion SO, 183, 00tiri0a the imte Board 0r Labor 

Statlstlc6 thst the prevailing rate Or wage6 tOr journey.neu 

plasterers would be lnareased from $1.50 per hour to $1.75 

per hour on oontracte entered into after April 12, 1942. 

The Local’8 letter stated that the 81.50 rate had been mlntalned for four (4) year*, but thnt increased living oosts 

neceeoltnted the raise. The letter was reoelved by the Bureau 

0r Labor %atiatics on February 17, 1842. Looal 783, arriiiatea 

with the American yederatfon of Labor, olaims Jurisdlotlon of 
871 

Honorable ieaves ii. RciiWr, page 3 

the rollowing countirrr Travis, %StTOP, Bass, LaJWasas, 

Bayette, Les, Blanoo, Burnett, Caldwell, ~lll~anaoa, Llano, 

hi Saba, and Dell. 

(3) on April let berorr the emotive aato at tbe 

above rarerred to tioreaso, the Boreao of Labor Stetirtios 

contacted numerous oontraotors in the Austin area to deter&m 

ii ths Inorease was aoaeptable to then, All r6plies received 

to inqulrirs lndloated the lnoreared rate was scoeptable and 

no raplies were recoivsd to the oontrarr. Lett6rswrrr rmamired iron a number of oontraatorr whose asMe are ret out 

fn tha letter from the Comtalosioner of thr Buseau oi Labor 

Statistios, that ths lnoreaseb rate8 wera agmeablr to timmr 

kiowrver, idoor Coaetruatioo Company doeln’t appear 08 aaid 

list. Atter reoelring the ravorable replies to It8 inquiry, 

the Bureau or Labor Statfstfos oorrected its iils to reflect 

31.75 per hour aa the prevailing wage soalo ior journeymen 

plasterers. 

(4) Your letter stated that you railed to rewire 

the Aotiae nalled you by the Bureau of Labor 6tatiotlas as 

to the increased scale 0r pay 0r plasterer8 snd you, therrrore, 

set up the rate of $1.60 in your speoliioations on the oontraot 

later awarded to Moore Construction Company. 

(5) The letter mm SioosCOAStrUatiOA COrnpSA~ toyou 

5tated that it was not notified at any time prior to 8fgAin6 

the coAtraot Hap 22, 1942, by the Labor Board, the plastererr’. 

repressAtativ0, or any other SgSAOy, oonoer~ing the inorsased 

rata of pay oi plasterera until Mar 22, 1942, when said raot 

was called to it8 attention by the plasterers’ representative. 

After aheaking with the State Labor Board, Moore Constructloo 

Company paid said prevailing waee, and now requests the Board 

of Control to remunerate it for the lncreaeed amount paid 

plastarers u&aT it above the amount set out in the speolfioatioas and oontraot, together with the additional coat of insuranoo required and a lO$ profit oa said inoressed amounta, 

Under the above raotr taken rrom four latter aad enO~~SUCO~, you propound to us three questions as rollowrr 

“1. UAdeT the tsots herein submitted and RS 

shown by the attaohed file, in the light or the law 

or this titato, do we owe c(ooro Conrtruotion Company 

on room repairs to the State Capitol OA above desoribed oontract, dated J&y 22, 1942, tha sum or 

91609.10 for 6422 hours of labor for plasterers 
Bonorable :ieaver 8. Btiksr, page 4 

paid an addltional Zb# per hour for work pariorned 

by them on said job ovw and above the $1.50 par 

hour set out in the oclntraot. 

“2. Are we bound to pay for the item or 

lnsuranoe aet out in suoh rtatement of $225.277 

“3. Are we bound to pay the 8183.44 profit 

alatied by the &ore Construction Company in view 

of the hate and law above oubmittsd?” 

It is noted that both the rpeoiflaation for bide 

and the oontrmt entered into with aore Construction Company 

eet out that the provisions or Artiole 3169a, Vornon’tt Annotated 

Civil Statutes, would be in eifeot on this ooatraat. Artiole 

5159a, V.A.C.8.. providea a5 r0~lowat 

‘580. 1. Not leas than the general prevailing 

rate at per diem wages tot work of 8 aiixilar ohnraotsr in the locality in whloh the work is performd, 

and not leas than the general prevailing r<lce of per 

diem wages for legal holiday and overtime wo.rb, shall 

be paid to all laborers, workmen and wohan~aa aployed by or on bahali af the State oi Texas, or by 

or on behalf of any county, oity and oounty, city, 

town, district or other political 6ubdSviai.m of the 

State, engaged In the construction of public worke, 

exalustve of maintenance work. Laborerr, worknen 

and meohanice employed by oontraotora or euboontraotore 

in the exeeutlon of any oontraot or oontrnots for publie works with the State, or any ofricer or publia 

body thereof, or in the execution 0r any oontruot 

or 0ontract.e tor publia worka, with any county, oity 

and oounty; oity, town, dlstriot, or other politloaL 

subdivision or thle State, or any otflaer or publla 

body thereof, shall be deemed to be employed upon 

publlo works. 

“3Jgo. 2. The publio body awarding any oontraot 

for publio work on behalf of the State, or on behalf 

or any county, alty and county, city, town, dlatriot 

or other politioal rubdivision thereof, or otherwise 

undertaking any publie work, shull aeoertaia the 

general prevaillcg rate or par diem wages ln the 

looality in which the work 18 to be performed for 
Ekmorable fleatar Ii. Sakes, page 4 

each aratt or type of workman or meohania aesded 

to exeaute the oontrattt, and 8hall speoify tn the 

call for bids ior said oontraot, and in the eontraot itaalf, what the general prevailin rate of 

per diem wage8 in the 8ai4 looality ir for eaah 

oratt or type ot workman nerded to l rooute the contraat, al8o the prevailing rate for legal holiday 

anti orertfmo work, and it shall be mandatory upon 

the oontraotor to whom the aontraot fr awarded, and 

upon any 8uboontraator under him, to pay not 1088 

than the ma14 8peoifie4 rater to all laborer8, workmen and meohanior employend by them in the exeoution 

0r the aontraot. The aontraotor shall forfeit a8 

8 penalty to the State, Oounty, oitf and oountf, 

oitf, town, dlatrlct or othar politioel eubdivf8lon 

on whose behalf the oontraot Ii! mrrdia or awarded, Ten 

&Llar# (@J.OO) for each laborer, workman, or machanio 

employed, ior eaoh calendar day 

suah laborer, workman or ~eohan 1 

or portion thereor, 

a IO paid lea8 than 

the said rrtlpulated rates for any work done under 

aaid aontraat, by him, or bf any auboontraotor under 

hira, and the said publio body awarding the oontraot 

shall aause to be inserted in the oontraot a etipulation to thin effeot. It shall be the duty of ruoh 

publio body awarding the oontraot, and it8 agent8 

and oiriaerr, to take aognlzanoe or aonplaints of 

‘I I all violatlona o? the provlpllons ot this Act aomaitted in the course of the execution or the oontraot, 

and, when rnisklng paymntato the eontractor or monier 

bemaing due undor said contraot, to withhold and retain therefrom all aicaa and e,munte which shall have 

been forieited pursuant to the herein said etipulation and the terms oi thie not; provided, however, 

that no 8uta 8hall be 80 withheld, retained or forfelted, except from the tinal puyrsent without a rull 

investigation by the awarding body. ft shall be lawful for any oontractor to withhold from any auboontraotor under him suffioient 8ume to oover any penaltler 

withh4ld irota him by the awarding body on aooount of 

the said nubaontraator’s tailum to oomplp with the 

ternu of thlr hot, and if payaent ha8 already been 

awl6 to him the aontraator may recover rrons him the 

amount of the penalty or iorfelture In a ruit at law. 

*Sea. 3. The ooatraotor and each ouboontraotor 

rball keep, or oause to be kept, an aoourete reoord 

ehowing the mm%8 and oaaupatlonr of all laborerr, 
IIonorable ,r'iesver Ii. i3akar, PUBS 6 

worknan and msohsnics employed by him, in aonneotion with the raid pub110 work, and showing also 

the aotual per diem wages paid to each of suoh 

workers, whloh record shall be open at all reasonable hour8 to the inspection of tb pub110 body 

awarding the contract, It8 officers and agentl. 

Veo. 4. Any oonetruotion or repair work 

dons under contraot, and paid for in whole or in 

part out of pub110 fund8, other than work done 

dir8Otly by any publi0 utility 008ipar~y pUr8Ufh 

to order of the Railroad Co1mlr8lon or other pubblio authority, whether or not don8 Under pub110 

supervl8lon or direstion, or paid for wholly or 

in part out or publio funds, ehall bs held to ba 

'pub110 works’ within the ,msaning of thir Act. The 

tern 'looality in whloh the work is performed* 

shall be held to 5eean the oounby, city and oounty, 

oity, town, district or other polltlonl subdlrislon 

of this State in whioh the building, highway, road, 

sxoavation, or other 8tructun, project, deoelopment or Lmproremeat 18 8itUdOd. in all oa8e8 in 

whiah the oontreat is awarded by the State, or any 

pub110 body thereof, and shall bo held to mean the 

limit8 of tha county, oity and aounty, oity, town, 

dlstrlot or other polltloal subdlolslons on wkosr 

behalf the OOutraOt I8 awarded in all other CaSe8. 

The term 'general prevailing rate of psr diem wages' 

shall be the rate dotermlnsd upon a8 such rate by 

the pub110 body awarding the oontraot, or authorizln$ the work, whose dsolslon in ths matter shall be 

tinaL. Nothing in this Bat, however, shall be construed to prohibit the paymsnt to any laborer, workman or meohanlo employed on any publio work aa afore8aid ot mqre than the said general prevailing rate 

Section8 6 and d of said 

are 08rrled a8 Hrtiole lB81a 0S the 

tO11OW8 3 

Aot being penal prOYi8iOn8 

Penal Code and prorlde a8 

*'Yea. 5. Any oiflosr, agent or reprssentatire OS the State or any Polltlosl subdlvlelon, 

dlstriot or munlo~palitg theroof, who wllfully 

shall violatr,or omit to oomplf with, any of the 
' .honordbls ::savcr 8. Dakur, page 7 

provl8ionr of thir Aot, and any OOntrSJOtOr or 

suboontraotor, or agent or representative thereof, 

doing publio work a8 aforeraid, who shall hegleot 

to keep, or cause to be kept, an acourate reoord 

OS the n3xe8, occupation and actual wages paid to 

each laborer, workman and n%chanIo employed by him 

in oouneotion with the 8aId pub110 work, or who 

shall refuse to allow &00%%8 to 8a:ae at any r%aIonable hour to any person authorizsd to’ lnspeot aarc 

under thir Act, rha11 be guilty of a inI8d4meanor, 

and ugon oon?iotion shall be punished by a fine of 

not exo%eding Plve Hundred Dollar8 $SOO.OO), or by 

impri8oIment for not %rc%%ding six I 6) months, or by 

both such fine and imprisonment, in th% di8Or4tiOQ 

of the Co*a.rt. 

*SW. 6. If any eeotioa, 84ntenc4, otause or 

part of thI8 Aot Is for any rea8on held to bs uhOOIl8titUtiOIld suoh d4Oi6lOn rha11 Ilot affeot th4 

remalnihg portion8 of this Act. The Legislature 

hereby deOlare8 that It would hilve passed thls Act, 

and each motion, sentenoe, clause, or part thereof, 

irr48p4otIv% 0S the foot thet one or more 84ctloa8, 

8entenc48, clauses or part8 thereof be deolared 

unoonst ltut ional.” 

ThI8 Aot ha8 been 00n8tZ?Fndc;; the Texas Court8 in 

the following oase81 southern &i 

8. w. (24) 0061 Awin 

oanr *. Rsnnels, 119’ 

674; EUIQ AU8tin 

in whioh t 

Brldue CO~~ehll v. TeaRUe, 149 s. W. (2d) 

Erla& Oomuaar 'I. Teauue. lS2 S. W. (24) 1091; 

;he 8UDlWilS Court reVsr8sd the 

of Civil Appeal; in~the aame Oa84. 

-judgmnt or th%CourtV 

The above QecIsionr are not helpful to u8 in th18 

imvtanoe because they involve faot 8ituatIone entirely difrerent from those presented hare. 

In the ~oUthemPri8on Company Oa84 th6 public body 

awarding ths wxk never made any determination of the prerailing wags scale for the type of work done by plaintlfi, 

In the Austin Bridge Coiepany 488% there wa8 a oontrorerey a8 to whether the type of work don6 by the plaintiff 

was 8killed or unskillQa labor. 

8’75 
honorable Sje~avcr H. Bakar, page 5 

Ih the fLI8tant 0884, we are confronted by a mutual 

alstake of fact made by the State 2okrJrd of Control and the 

hfoore Construotion Compehy a8 to the prorsllIn$ wag0 scale 

ior plasterer8. 

The oontract entered into between them 8at out that 

the provision8 or House Bill 54, Chapter 45, Acts oi the Begular &melon of the Borty-third Legirlature, (Artiole 5159a, 

V.A. 0. 8.. and Artiole 155la, Penal Code) would be la @Meat 

on the oontraot. Both parti to the oontract were bound by 

8aId hot and &ore COnstrUotlOn Co!qm~y paid the pretaillng 

rate on ascertaining what it wa8. 

It is %lem%ntsry that whsre there 18 a mutual uilstake or faot that a oontraot will be r%iormed to express the 

true intent of the partie8, eraspt when rights of third pertie8 twre Intsrvened, and in 808% other ihstsnCs8 not involrea 

here. 

The rule 18 8tated 10 “RELfTATE-i?X;T OP TifS I&# OF 

CONTRACTS,Vol. ” 2, page 968, Section 504, a8 ~ollowor 

n* * * where both parties have an ldentloal 

intention ce to the terrm to be embodied la a 

propoasa written oonveyanos, assignment, oontraot or disohmge, and a writing eseoutsd by 

thea la materially at variance with that intention, either party oan get a dears% that the 

writing shall be raformed so that It shall express the intention oi the parties, ii innooent 

third parsons will hot be unfairly afr%Oted thsreby. * 

Prom the above, It 18 apparent that our an8wer to 

your first qu48tlon ir that the State Board of Control is suthorlzed to pay Moore Construction Coxpsuy the sum OS #1,809.10 

being an additional twenty-five (28#) cent8 per hour for 6422 

hour8 oi labor by plastererl, 8am having besn paid said plaeterer8 aocordi.ag to the letter from Moore Construction Company in 

addition to the 31.50 

$ 

r hour pmvlded In the oontroot and 

said total psyment of *1.75 per hour being ths rsoognizsa pmrailing wage scale for plasterers In this vloinlty. 
The amwer to tour second queetlon in aontrolled 

by tho answer to the first quecrtloa. The Board of Control 

is authorized to pay the amount of additional insurance paid 

by the contraotor whloh wan ooOasioned by auld oontraotor 

paying the prevailing wage aoalo prosoribed by law instead 

ot the bwar raalo eet out in the aontraot* 

Our anawor to your third quo&ion ID that the Board 

or Control ia not authorized to pay tea (lO$) per oent profit 

on the two above rororred to itomr, naavlyr tho additional 

amount paid tho plastererr an4 the addltioaal insuranoo pal4 

oooarlonod by tho higher r&o of pay, baoauao tho Oontcaot lnvalved hero was not a Ooet ~1~8 oontroot, no atandardlr are ret 

up in ram to ebow how prof itr aro to be arrived at, or oten 

to show that tho oontraotor oxpeotod to make a aaah proiit on 

thla traaeaotion. 

Idew tines oontraotr era made without erpeotation 

or oash prorlt Ln order to koop regular vmrkmon miploged, to 

obtain future business, oto. 

The Itema whioh we have hold subjeot to pIpOAt 

hero wero pald by tho oozitraotor in oonplfanoo with Ststo law. 

The ltmn of ten per oent (lop) profit on maid paymenta doer 

not tall within this oatogory, 

Very truly youra, 

ATTORNEY GiNERAL OF TEXAS