The Honorable Jackie W. St. Clair Opinion No. H-845 

Commissioner 

Texas Department of Labor and Re: Authority of the 

Standards Texas Department of Labor 

P. 0. Box 12157, Capitol Station and Standards in the 

Austin, Texas 78711 enforcement of the prevailing wage statute, 

article 5159a, V.T.C.S. 

Dear Commissioner St. Clair: 

You have requested our opinion regarding the authority 

of the Commissioner of the Texas Department of Labor and 

Standards to enforce article 5159a, V.T.C.S., the "prevailing 

wage" law. Article 5159a provides, in section 1: 

Section 1. Not less than the general 

prevailing rate of per diem wages for 

work of a similar character in the 

locality in which the work is performed, 

and not less than the general prevailing 

rate of per diem wages for legal holiday 

and overtime work, shall be paid to all 

laborers, workmen and mechanics employed 

by or on behalf of the State of Texas, 

or by or on behalf of any county, city 

and county, city, town, district or other 

political subdivision of the State, engaged 

in the construction of public works, 

exclusive of maintenance work. 

The public body awarding the contract is directed to: 

p. 3562 
The Honorable Jackie W. St. Clair - page 2 (H-845) 

ascertain the general prevailing rate of 

per diem wages in the locality in which the 

work is to be performed for each craft or type 

of workman or mechanic needed to execute 

the contract, and [to] specify in the call 

for bids for said contract, and in the 

contract itself, what the.general prevailing 

rate of per diem wages in the said locality 

is for each craft or type of workman needed 

to execute the contract, also the prevailing 

rate for legal holiday and overtime work . . . . 

Sec. 2. 

Furthermore, any contractor who fails to pay the prevailing 

rate is required to forfeit the sum of ten dollars per day, 

per worker, and the contracting public body is required to 

insert this stipulation into every contract. Section 2 

also directs the public body to "take cognizance . . . of 

all violations . . . and, when making payments to the 

contractor . . . to withhold and retain therefrom all sums 

and amounts which shall have been forfeited . . . ." 

Article 5159a does not refer to the Texas Department of 

Labor and Standards, or to its Commissioner. The statute is, 

however, included in Chapter 3 of Title 8.3 of the Revised 

Civil Statutes, Article 5159, also included therein, provides: 

The Commissioner of Labor Statistics 

[presently the Commissioner of Labor 

and Standards] shall 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. (Emphasis 

added). 

When article 5159 was originally enacted, in 1915, it read, 

in pertinent part: 

It shall be the duty of the Commissioner 

of Labor Statistics to inquire diligently 

for violations of this Act . . . ., 

(Emphasis added). - 

p. 3563 
The Honorable Jackie W. St. Clair - page 3 (H-845) 

As originally enacted, article 5159 appeared as section 3 of 

an act regulating the time period for payment of wages to 

certain employees. 

When the Civil Statutes were revised and codified in 

1925, the word "chapter" was substituted for "act" in newly 

revised article 5159. At that time, there was only one 

substantive provision in the "chapter." Article 5159a was not 

enacted until 1933, and there was no indication in that Act 

where the statute was to be placed in relation to other 

statutes. Both article 5159a and article 5159 were subsequently grouped by West Publishing Company into the Title 

83, Chapter 3 series as it appears today. While a reading 

of the statutes as printed in Vernon's Texas Civil Statutes 

would suggest that the Commissioner has enforcement duties 

under the prevailing wage law, there is no legislative act 

which would indicate that the enforcement provisions of 

article 5159 were intended to extend to article 5159a, the 

prevailing wage law. The apparent relationship between the 

two statutes is the result of action by the publishing company 

and not the Legislature. As a result, it is our opinion 

that the enforcement duties presently imposed upon the 

Commissioner by article 5159 do not embrace the provisions 

of article 5159a. 

We believe this conclusion is mandated by the Supreme 

Court's decision in Texas Highway Commission v. El Paso 

Buildin and Construction Trades Council 

~n~950). In that case, a labor'o:~~n?k~;%""' 

challenged the prevailing wage rate set by the Texas Highway 

Commission. The Supreme Court noted that, prior to its 

amendment by the Senate, the original version of article 

5159a had provided that the Commissioner of Labor should 

make the final determination in any dispute involving the 

prevailing wage rate. But, as the Court observed, 

[tlhis provision was deleted from the 

bill before final passage and the present 

Pr;;zsion substituted so the Act now 

: 'The term 'general prevailing 

rate of ner diem waces' shall be the 

in the matter shall be final.' 

~d~,234S.w.zd=~ 

(Emphasis 

p. 3564 
The Honorable Jackie W. St. Clair - page 4 (H-845) 

The Court concluded, "[wle fail to see how more clear language 

showing the intention of the Legislature could have been used." 

Id. Thus, it appears from prior case law that the Commiszoner of the Texas Department of Labor and Standards is 

neither required nor permitted to enforce the provisions of 

article 5159a. 

Your next five questions inquire about the investigatory 

and administrative authority of the Department under article 

5159a. As we have indicated, the Department has no responsibility under that statute. The Commissioner is?iven no 

authority to inquire into the prevailing wage rate set by a 

public body; to ascertain whether such rate is correct; or 

to take any action whatsoever regarding the public body's 

determination. 

You also ask a number 

responsibilities of public 

answers to these questions . . _ 

of questions as to the duties and 

bodies under article 5159a. The 

depend largely upon the facts of 

absent specific examples, we are . 

eacn particular case, and, 

unable to address these inquiries. 

Finally, you ask what is embraced within the meaning of 

"legal holiday" in section 1 of article 5159a, which requires 

a public body to pay "not less than the general prevailing 

rate of per diem wages for legal holiday and overtime work." 

Article 4591, V.T.C.S., enumerates those dates which "are 

declared legal holidays." In our opinion, therefore, a 

particular date is a "legal holiday" for purposes of article 

5159a if it is included within the enumeration of legal 

holidays in article 4591. 

SUMMARY 

The Commissioner of the Texas Department 

of Labor and Standards is neither required 

nor permitted to enforce the provisions of 

article 5159a, V.T.C.S. A particular date 

is a "legal holiday" for purposes of article 

5159a if it is included within the enumeration 

of legal holidays in article 4591, V.T.C.S. 

Attorney General of Texas 

p. 3565 
The Honorable Jackie W. St. Clair - page 5 (H-845) 

Opinion Committee 

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p. 3566