- TEE ATTORNEY GENERAL 

OF TEXAS 

Honorable Chet Brooks Opinion No. JM-1164 

Chairman 

Health and Human Services Re: Inclusion of fringe beneCommittee fits in calculating the preTexas State Senate vailing wage under article 

P. 0. Box 12068 5159a, V.T.C.S. (RQ-1857) 

Austin, Texas 78711 

Dear Senator Brooks: 

You ask whether article 5159a, V.T.C.S., requires the 

inclusion of fringe benefits in the calculation of the prevailing wage. That article governs the payment of wages for 

the construction of public works on behalf of the state or 

its various political subdivisions. Section 1 provides in 

part: 

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, or any officer or 

public body thereof, shall be deemed to be 

employed upon public works . . . . 

Section 4 of the article provides in part: 

The term 'general prevailing rate of per diem 

wages1 shall be the rate determined upon as 

such rate by the public body awarding the 

contract, or authorizing the work, whose 

decision in the matter shall be final. 

In Attorney General Opinion H-350 (1974) this office 

was asked about the permissibility of including fringe 

benefits in the calculation of the prevailing wage. That 

opinion noted that a governing body's determination fixing 

the prevailing wage rate was final and not judicially 

p. 6151 
Honorable Chet Brooks - Page 2 (JM-1164) 

reviewable. See Texas Hiahwav Comm'n v. El Paso Blda. & 

-1 cost . 234 S.W.2d 857 (Tex. 1950). 

opinion concluded that 'a public body 

The 

had discretion under 

the statute to consider fringe benefits in determining a 

prevailing wage rate. 

You ask us to modify the holding of Attorney General 

Opinion H-350 and to construe the statute to require the 

inclusion of the value of fringe benefits in the 

determination of the prevailing wage rate. you tell us that 

this request is prompted by the current practice of the 

University of Texas System to no longer include fringe 

benefits in its wage table calculations for its construction 

contracts in given localities. 

In its response to your request, the University of 

Texas System indicates that in those areas where union 

contractors represented the prevailing work force in a given 

locality, its wage tables included fringe benefits, because 

the payment of fringe benefits is not prevailing practice in 

those areas. In those areas where open-shop work represents 

the prevailing work force, we understand that the University 

System's wage tables do not include fringe benefits. Thus, 

the University System’s wage tables appear to reflect the 

prevailing practice in a given locality.1 Consequently, 

your question does not accurately describe the practice as 

described by the University of Texas System. 

In our opinion, the inclusion of the value of fringe 

benefits in a governmental body's determination of the 

prevailing wage must be a matter for the governmental body. 

If the entity determines that wages in a given locality for 

similar work typically include fringe benefits, that factor 

should be considered in the calculation. It would be inconsistent, in our opinion, to read the statute as requiring 

the inclusion of fringe benefits when the prevailing 

practice in the locality is otherwise. As indicated in the 

brief filed by the University of Texas System, the inclusion 

of fringe benefits in such a locality would compel the 

contracting authority to pay wages at a rate that is higher 

than the prevailing rate. 

We note that several attempts to amend article 5159a to 

expressly include fringe benefits have been unsuccessful.2 

1. We accept the University System's description as 

accurate, because this is a factual matter not appropriately 

determined in the opinion process. 

2. Legislation introduced in the 63rd, 64th, and 68th 

(Footnote Continued) 

p. 6152 
Honorable Chet Brooks - Page 3 (JM-1164) 

. 

While this fact alone does not preclude an interpretation 

that fringe benefits are mandated by the current language, 

it supports this office's earlier reading of the statute in 

Attorney General Opinion H-350. We are not persuaded that 

the University of Texas System's method of determining the 

prevailing wage for a given locality is inconsistent with 

article 5159a. Therefore, we decline to modify Attorney 

General Opinion H-350. In our opinion, a governing body is 

not required by article 5159a to include the value of fringe 

benefits in its calculation of the prevailing wage in a 

given locality. It is proper for the governing body to 

include the value of fringe benefits in its calculation if 

it determines that payment of fringe benefits is the prevailing practice in the locality. 

SUMMARY 

A governing body is not required by article 

5159a, V.T.C.S., to include the value of 

fringe benefits 

prevailing wage 

-, - 

in its calculation of the 

in a given locality. L 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

(Footnote Continued) 

Legislative Sessions would have amended article 5159a to 

include fringe benefits in the rate of pay calculated under 

that article. None of these amendments was adopted, 

however. See S.B. 329, 63d Leg. (1973); H.B. 936, 63d Leg. 

(1973); S.B. 804, 64th Leg. (1975); S.B. 1259 64th Leg. 

7 (1975); S.B. 950, 68th Leg. (1983); H.B. 1399, 68th Leg. 

(1983). 

p. 6153