The Honorable Jackie W. St. Clair 

Commissioner 

Opinion No. H- 042 

Texas Department of Labor & Standards Re: Authority of 

P. 0. Box 12157, Capitol Station Texas Department of 

Austin, Texas 78711 Labor and Standards 

in enforcement of 

Payment of Wages 

Statutes. 

Dear Mr. St. Clair: 

You have requested our opinion on a number of questions 

regarding the Texas payment of wages statutes, articles 

5155-5159, V.T.C.S. Your first two questions inquire whether 

the Department of Labor and Standards is authorized or 

required to collect back wages owing to employees or former 

employees of a regulated employer, and, in addition, whether 

the Department is authorized to obtain and hold in trust for 

an employee an assignment of wages against a covered employer 

upon the filing of a complaint for an alleged violation of 

these statutes. 

The Commissioner of Labor Statistics is directed by 

article 5159 to 

inquire diligently for violations of 

this chapter and institute prosecutions and see that the same are carried to 

final termination and generally to see to 

the enforcement of the provision hereof. 

0. 3549 
The Honorable Jackie W. St. Clair - page 2 (H-842) 

The 'prosecutions" contemplated by article 5159 are 

those detailed under article 5157: 

Every person, partnership or corporation, willfully failing or refusing to 

pay the wages of any employee at the 

time and in the manner provided in this 

statute shall forfeit to the State of 

Texas the sum of fifty dollars for each and 

every such failure or refusal. Suits for 

penalties accruing under this law shall 

be brought in any court having jurisdiction 

of the amount in the county in which the 

employee should have been paid, or where 

employed. Such suits shall be instituted 

at the direction of the Commissioner of 

Labor Statistics by the Attorney General 

or under his direction, or by the County 

or District Attorney for the county or 

district in which suit is brought. 

No statute authorizes the Commissioner to take any 

action to collect back wages owing to employees or to obtain 

from an employee an assignment of wages when a complaint is 

filed. It is well established that 

an administrative agency . . , has only 

such powers as are expressly granted 

to it by statute together with those 

necessarily implied from the authority 

conferred or duties imposed. Stauffer 

v. Cit of San Antonio, 344 S.W.2d 158, 

Ym7&xT-sup. T5161) 

In our opinion, the payment of wages statutes cannot be 

construed, either expressly or by implication, to permit the 

Commissioner to collect back wages or to obtain assignments 

of wages. Thus, we answer your first two questions in the 

negative. 

You also ask whether a regulated employer violates the 

payment of wages statutes If he fails to pay an employee 

on a previously dcsi,gnated date, and, Lf so, what particular 

circumstances constitute a violation. Article 5155 provides: 
. , 

0. . 

The Honorable Jackie W. St. Clair - page 3 (H-842) 

Every person, each manufacturing, 

mercantile, mining, quarrying, railroad, 

street railway, canal, oil, steamboat, 

telegraph, telephone and express company, 

employing one (1) or more persons, and 

each and every water company not operated 

by a municipal corporation, and each and 

every wharf company, and every other 

corporation engaged in any business within 

this State, or any person, firm or corporation engaged in or upon any public work 

for the State or for any county or any municipal corporation thereof, either as a contractor or a subcontractor, therewith, shall 

pay each of its employees the wages earned by 

him or her as often as semimonthly, and pay 

to a day not more than sixteen (16) days 

prior to the day of payment. 

This statute must be read in conjunction with article 5156, 

in order to determine what is required of employers: 

An employee who is absent at the time 

fixed for payment, or who for any other 

reason is not paid at the time, shall be 

paid thereafter on six days' demand. 

Any employee leaving his or her employment, or discharged therefrom, shall be 

paid in full on six days' demand. 

We believe that article 5156 means that an employee has 

a right to rely on his employer's promise as to the date on 

which wages will be paid. Subject to the overriding provisions 

of article 5155, the precise date of payment depends upon 

the terms of the contract between the employer and his employee. 

But if a date has been designated as a pay day, and the 

employee does not receive his wages at that time, he may 

invoke the operation of article 5156 by making a demand on 

his employer. If the employee does not receive his wages 

within six days of the date of such demand, the employer 

is in violation of the statute, and thus subject to the 

fifty dollar civil penalty of article 5157. 
The Honorable Jackie W. St. Clair - page 4 (11-842) 

An employer may also violate article 5155 by failing to 

pay his employees at least as often as semimonthly, or by 

failing to "pay to a day not more than 16 days prior to the 

date of payment." In the first case, we believe that only 

one violation per employee occurs for failure to pay semimonthly. In the latter instance, however, a new violation 

may be deemed to occur for each new day's wages which become 

overdue. For example, an employer who is scheduled to pay 

wages on April 30 is in violation of the statute if on that 

date his employees are not or have not previously been paid 

for work performed through April 14. On May 1, a new violation occurs for work performed on April 15, and each day 

thereafter for each new day's wages which become overdue. 

Furthermore, if an employee makes a demand on April 30 for 

payment of wages through April 14, a separate and additional 

violation for non-payment of such wages will occur on May 6. 

See generally Attorney General Opinion H-388 (1974). - 

SUMMARY 

The Commissioner of Labor Statistics is not 

authorized to collect back wages owing 

to employees or former employees of a 

regulated employer, nor to obtain and 

hold in trust from an employee an assignment 

of wages for an alleged violation of 

articles 5155-5159, V.T.C.S. An employer 

violates article 5155 by failing to pay 

wages "to a day not more than 16 days 

prior to the date of payment," and a new 

violation occurs for each new day's wages 

which become overdue. The penalty for 

violation of article 5156 attaches only 

once to a particular set of wages due, no 

matter how often a demand is made. 

Vgry truly yours, 

$/&~: 7;&& 

L. HILL 

,' jAttorney General of Texas 

., / 

i ,’ 
. . 

The Honorable Jackie W. St. Clair - page 5 (H-842) 

APPROVED: 

bAVID M. KENDALL, First Amilitant 

opinion Committee 

p. 3553