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 ofWages Statutes.
**Dear** Mr. St. Clair:
You have requested our opinion on anumber 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 isauthorized 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 ofwages against a covered employer upon the filing of a complaint for an alleged violation of these statutes. The Commissioner of Labor Statistics isdirected by article 5159 to

inquire diligently forviolations 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 thewages 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 inany **court** having jurisdiction of the amount in the county inwhich the employee should have been paid, or where employed. Such suits shall **be** instituted at thedirection of the Commissioner of Labor Statistics by theAttorney General or under his direction, or by the County or District Attorney for the county or district inwhich suit isbrought.
No statute authorizes the Commissioner to take any action to collect back wages owing to employees or to obtain from an employee an **assignment** ofwages when a complaint is filed. It iswell 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 SanAntonio, 344 S.W.2d 158, Ym7&xT-sup. T5161)

Inour opinion, thepayment ofwages statutes cannot be construed, either expressly or by implication, topermit the Commissioner to collect back wages or toobtain assignments ofwages. Thus, we answer your first twoquestions in the negative.
You also ask whether a regulated employer violates the payment of wages **statutes** Ifhe fails topay an employee on apreviously dcsi,gnateddate, and, Lfso,what particular circumstances **constitute** aviolation. Article 5155provides:. ,

0.

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

Every person, eachmanufacturing, 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 amunicipal corporation, and each and every wharf company, and every other corporation engaged inany business within this State, or any person, firm or corporation engaged inor upon any public work for the State or for any county or anymunicipal corporation thereof, either as a contractor or a subcontractor, therewith, shall pay each of its employees thewages earned by him or her asoften as semimonthly, and pay to aday notmore than sixteen (16)days prior to the day of payment. This statute **must** be read in conjunction with article 5156, inorder to determine what is required of employers:

An employee who is absent at the time fixed for payment, orwho for any other reason isnot paid at the time, shall be paid thereafter on sixdays' demand. Any employee leaving his or her employment, or discharged therefrom, shall be paid in full on six days' demand. Webelieve that article 5156 **means** that an employee has a right to rely on his employer's promise as to thedate on which wages will be paid. Subject to the overriding provisions of article 5155, theprecise date of payment depends upon the terms of the contract between **the** employer and his employee. But if adate has been designated as apay day, and the employee does not receive his wages at that time, hemay invoke the operation of article 5156 bymaking ademand on his employer. If the employee does not receive hiswages within sixdays of the date of such demand, the employer is inviolation 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 5155by failing to pay his employees at least as often as semimonthly, or by failing to "pay to aday not **more** than 16days prior to the date of payment." In the first case, we believe that only one violation per employee occurs for failure topay semimonthly. In the latter instance, however, a new violation may bedeemed to occur for each new day's wages which become overdue. For example, an employer who is scheduled topay wages onApril 30 is inviolation of the statute ifon that date his employees are not or have not previously been paid forwork performed through April 14. On May 1,anew violation occurs forwork performed onApril 15, and each day thereafter for each new day's wages which become overdue. Furthermore, ifan employee makes ademand onApril 30 for payment of wages through April 14, a separate and additional violation for non-payment of suchwages will occur onMay 6. See generally Attorney General Opinion H-388 (1974). - SUMMARY

The Commissioner of Labor Statistics isnot 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 5155by failing topay wages "toaday notmore than 16days prior to the date of payment," and anew violation occurs for each new day's wages which become overdue. The penalty for violation of article 5156 attaches only once to aparticular set ofwages due, no matter how often ademand ismade. Vgry truly yours, 

# $/&~:7;&&

L. HILL ,' jAttorney General of Texas

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

APPROVED:

bAVID M. KENDALL, First Amilitant

opinion Committee

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