## HEAI"FOWNEY GENERAL QFTEXAS

AUSTIN. **,%ZLAS** 78711 **CXAWE- “** **RD c.**  **MARTlN** February 3, 1970

Mr. Tommy V. Smith Commissioner 7wOpinion No.570
Bureau of Labor Statistics RE: Whether H.B. 156,Minimum Capitol Station Wage Act of 1970 is applicAustin, Texas 78711 able to employees of motion picture theatreswho are

Dear Mr. Smith: exempted under the provisions of the Federal Fair Labor StandardsAct of 1938, as amended. By letterof January 2, 1970 you have~requestedan opinion concerning H.B. 156,Minimum Wage Act of 1970Acts 61 Leg. Reg.Session,Ch. 769, p. 2348 (1969) (Article5159d, Sections l-16, R.C.S. of Texas) which becomes effective February 1, 1970. Rephrased,your question isas follows:
"IsH.B. 156,Minimum Wage Act of 1970, applicable to employees of motion picture theatreswho are exempted under the provisions of the Federal Fair Labor Standards Act of 1938, as amended." Section 4(a) of the Texas Minimum Wage Act of 1970 reads as follows: "Theprovisions of thisAct shall not apply to any person covered by provisions of the Federal Fair Labor StandardsAct of 1938, as amended." (Emphasisadded) Section 213 of the Federal Fair Labor StandardsAct of 1938 (29U.S.C. 213) contains numerous specific exceptions, among which is subsection (a)(9),which reads as follows: "(a) The provisions of Section 206 and 207 of this title shall not apply with respect to -

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"(9) Any employee employed by an establishment which IS a motion picture theater:" (Emphasisadded.) Sections 206 and 207 of the Federal Fair Labor Standards Act provide forminimum wages andmaximum hours for certain individualsnot exemptedby Section 213. Section 4(a) of the Texas Minimum Wage Act of 1970 is an express exception to the general rule and policy as stated in other provisions of the act. It has long been the rule of the courts to construe exceptions and provisions strictly. Missouri-Kansas-TexasRailroad Co. of Texas v. Thomason, 280 S.W. 325 (Ct.Civ.App.1926) err. ref. The Gnauaae of a statute is Dresumed to have been selected by the legislatureand u&d with care and deliberationwith full knowledge of all existing statuteson the subject matter. 53 Tex.Jur.Zd 270, Sec. 181; Robertsonv.State, 406 S.W.2d 90, Ct.Civ.App. 1966, err. ref. n.r.e. Where questions arise concerning the interpretationof the words used in the statute, the Texas Legislaturehas provided that the ordinary signification shallbe applied to those words. Art. 10, R.C.S.
As commonly understood the word "provisions"means articles, clauses or stipulations. Webster's 3rd New International Dictionary,Unabridged, 1969,p. 1827. Obviously all sections of an enactment are "provisions"within the ordinary significationof that word, regardless of the contents of thoseprovisions. Consequently, Section 213 of the Federal Fair Labor StandardsAct of 1938, and the amendments thereto, collectively comprise **one** of the "provisions" of the federalwage and labor act or agreement. Insofar as we are aware, the words "coveredby" have never been interpretedby the courts of Texas. The words "covered by" are ordinarilydefined as "includedin the group with respect to which a particular agreement is in force." Webster's 3rd New InternationalDictionary,Unabridged, 1969, p. 524. To cover a person would mean to protect him by means of a minimum wage provision. In the field of insurante, to "cover" is interpretedas meaning to protect by way of insurance. See Black's Law Dictionary, 4th Ed., p. 439 "cover.

11The FederalAct is a particularundertaking to include certain employees and businesses under regulations

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as tomaximum hours and minimum wages and exclude other employees as amended in Sec. 213. The FederalAct is not in force and does **not** regulate those persons Set, 213 exempts. The words of the statute and their significanceas used may be determinedwith reference **to** the **object** and purpose of the enactment, reading the intention andmeaning of the legislature from the statute as a whole. Gden v. Gates, 119 Tex. 76, 24 S.W.2d 381, 1930. Owens v. Stovall 64 S.W.?d 360 (Ct,Civ.App.1933) err, ref.; 53 TexJurb2d 191, Sec. 130. Consideration of the policy and the whole of the Texas Minimum Wage Act of 1970make it,clear that the legislature was primarily concerned in specificallyexcluding from Texas regulations any employee protected or regulatedby the FederalAct. Those persons not included in Sec. 213 of the Federal Act (Sec. 213) are subject to regulation of the Texas Act, except where the Texas Act (Set,4[a]) specifically exempts some of these same individuals,e.g., certain telephone employees. The Texas Act seeks to avoid conflictwith thewage and hours regulationsof Sections 206 and 207 of the Federal Act and to accomplish its purpose by regulating those employees in areaswhich the Federal Act has not pre-empted, Although a strict interpretation of express exceptions is usually employed, it is axiomatic that a statutemay be liberally construed to effectuate the general remedies sought. The express exemption of Set, 4(a) of the Texas Minimum Wage Act of 1970 only exempts those employeeswhich are regulated, or covered by, the provisions of the Federal Fair Labor StandardsAct of 1938, Under this reasoning, it is therefore the opinion of this office ion picture employees are not among those persons he Federal Fair Labor StandardsAct ***covers*** and are therefore subject to regulationby the Texas Minimum Wage Act of 1970,

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Mr. Tommy V. Smith,page 4, (M-570)

SUMMARY Motion picture emnlovees are not amone those persons "coveredby" provisions of the Federal Fair Labor Standardstic= UL 1~38, as Qmenaeu, and are therefore subject to regulationby the Texas Minimum Wage Act of 1970.

Prepared by Bennie W. Bock II Assistant Attorney General
APPROVED: OPINION COMMITTEE
Xerns Taylor, Chairman
Monroe Clayton Earl Hines Houghton Brownlee Jack Dillard
MEADE **F.** GRIFFIN Staff Legal Assistant
NOLA WHITE FirstAssistant

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