The Honorable Jackie W. St. Clair OpinionNo. 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 enforcementof the prevailing wage statute, article 5159a,V.T.C.S.
Dear Commissioner St. Clair:
You have requestedour opinion regarding the authority of the Commissionerof the Texas Departmentof Labor and Standards to enforce article 5159a,V.T.C.S., the "prevailing wage" law. Article 5159aprovides, 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 inwhich the work is performed, and not less than the general prevailing rate of per diem wages for legal holiday and overtimework, shallbe 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 subdivisionof the State, engaged in the constructionof public works, exclusive of maintenancework. The public body awarding the contract is directed to:

p.3562The Honorable JackieW. 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.generalprevailing 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 overtimework

. . . . Sec. 2. Furthermore,any contractorwho fails to pay the prevailing rate is required to forfeit the sum of ten dollars per day, per worker, and the contractingpublic body is required to insert this stipulation into every contract. Section 2 alsodirects the public body to "take cognizance

. . .of allviolations

. . . and, when making payments to the contractor
. . . to withhold and retain therefrom all sums and amountswhich shall have been forfeited

. . . ." Article 5159a does not refer to the Texas Departmentof 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 [presentlythe Commissionerof Labor and Standards] shall inquire diligently for violations of this chapter and instituteprosecutions 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 5159was originally enacted, in 1915, it read, inpertinentpart:

It shallbe the duty of the Commissioner of Labor Statistics to inquirediligently for violations of thisAct
. . . ., (Emphasisadded). -

p.3563The 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 Statuteswere revised and codified in 1925, the word "chapter"was substituted for "act" in newly revised article 5159. At that time, therewas only one substantiveprovision in the "chapter." Article 5159awas not enacted until 1933, and there was no indication in thatAct where the statutewas to be placed in relation to other statutes. Both article 5159a and article 5159were 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 inVernon's Texas Civil Statutes would suggest that the Commissionerhas enforcementduties under the prevailingwage law, there is no legislativeact which would indicate that the enforcementprovisions of article 5159were intended to extend to article 5159a, the prevailingwage law. The apparent relationshipbetween 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 enforcementduties presently imposed upon the Commissionerby article 5159 do not embrace the provisions of article 5159a.
We believe this conclusion ismandated by the Supreme Court's decision in Texas Highway Commissionv. El Paso Buildin and ConstructionTrades Council ~n~950). In that case, a labor'o:~~n?k~;%""' challenged the prevailingwage 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 Commissionerof Labor should make the final determination in any dispute involving the prevailingwage rate. But, as the Court observed,

[tlhisprovisionwas deleted from the bill before finalpassage and the present Pr;;zsion substituted so theAct now : 'The term 'generalprevailing rate of ner diem waces' shallbe the

in thematter shallbe final.' ~d~,234S.w.zd=~ (Emphasis

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

The Court concluded, "[wle fail to see how more clear language showing the intentionof 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 administrativeauthority of the Departmentunder article 5159a. As we have indicated, the Departmenthas no responsibilityunder that statute. The Commissioner is?iven no authority to inquire into the prevailingwage rate set by a public body; to ascertainwhether such rate is correct; or to take any action whatsoever regarding the public body's determination.
You also ask a number responsibilitiesof 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 embracedwithin themeaning of "legalholiday" 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 overtimework." Article 4591,V.T.C.S., enumerates those dates which "are declared legal holidays." In our opinion, therefore, a particulardate is a "legalholiday" for purposes of article 5159a if it is includedwithin the enumerationof legal holidays in article 4591.
SUMMARY The Commissionerof 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 "legalholiday" for purposes of article 5159a if it is includedwithin the enumeration of legal holidays in article 4591,V.T.C.S.

Attorney General of Texas

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

Opinion Committee jwb

p.3566