Case Information
*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Bon. Jo. Kunsohik, Cori8slormr
&me8U of I&or bt8tlstlos
Audln, Tous ,I,
Dsrs sir, Oplni0B wo. O-2059 '\,. \ Be: whbthbr or n0t '&v8, Deput- ment Otmpti"rikh# ablmtm vego on+ybllo vork# laws.
Th8Bk you for
in& thb apiaion of this not tab Toxu Stab
po~i~i088 0r md0lb
insofu u 8 ocnrtr8ot
falloatouoortdn Pbr' diON V8@. iB or type of VorkmB or b OontMot fo thb OOB- b r l ystbnl on m g hv8y lo.
in TMViB c ounty.
body 8h&lMOeP- th. ~nW8l~V8i~~bin
thb lootiity lnrhiohthowrk 18 to k p.?,to=d ioF eaoh 0-t tn. O? VO?km8~ or medm~i0 BMdbd t0 l xeOUte OOntl'0Ot, and th~l 8peOifJ 8UOh W48 8-O in it8 call ?or bid8 anb in the oantrrat it8Olf.' *2 Bon. Joe Kunachlk, Prge 2
Artlola 51598, Veron'o bnnotatod Civil Statutea, Acta 43rd Legislature, p. 91, oh. 45, read3 a8 follovs: "3ec. 1. Not less than the general prevailing for uork of G slmllar character rate ot per diem vases the looallty In vhlch the vork is perfomd, and not leer than the general PrevallIng rate of psr diem vages Sor legal holiday and overtime vork, ohall bs paid to all laborers, vorkw~~~ and ntschanlc~ employed by or on behalf of the St&to oi Tex&3, 01' by GI- on bahalf of a?g county, city and dounty, city, tom, dlotrlct OF other polltioal rubdivision of tho State, engaged in the oonstructlon of public vorks, exclusive of main- tenance work. Laborera, vorkmn, and meabanlcs mployod b3 contractorb or subcontraotors ir, the execution of any contmbct or contraota Par Fiblic works vlth the State, or any officer or public bcdy thereof, or in the exeoutlon of any contract 01’ contracts for public vocks, vlth any county, city and oountg, city, tom, district or other political subdivision of tNs State, or any ofrlcer or ?ubllc body thereof, shall be dewed to be employed u;>on public works.
R3ec. 2. The public body warding any contraat for public vork on behalf of the Ytato, on behalf of any oounty, city and county, city, tom, diotrlct other politioal 8UbdiV18iOn Ohersof, or othervlsc under- taklna any public vork, shall aaoertain the genolul preva.lllng rate or per dir vages in the locality in vhich the vork 1s to be perfomod for eaoli oraft or type of vorkman or meohanlc needed to execute tract, and shall specify the con-
in the call for bids for said and in the oontraot ItaeLf, what the general in the #aid locality prevailing rata per diem vages is each craft or type of v~rlmmn needed to execute tha contract, aloo tho prevalllng rate legal holi- dsg and overtime voPk, and it ohall be nmndatory upon la avardad, on3. upon the contraotor to vhom the contmct any subcontractor u&or him, to pay not lees thsn bho said specified rates to all laborera, vorkmen and neoh- anlcs employed by them in the execution of the contract. The contractor shall forfelt aa a penalty to the State, county, city and county, city, tom, district or other polltical subdivision on vhoae behalf the contract Ia mbde or avarded, Ten Dollus ($lO.m) for each laborer, ~~dsman or me=hanIo ewloyod, each calendar day, or such laborer, vorkaan meohaalo Is portion thereof, *3 non. Joe Kunschik, Page
paid less than the said otlyulatcd ratea for any work by him, or by any subcontractor dons undar ml& ur.dar him, and the aald public body avardlng the contract shall cause to be Inserted In the contract a stipulation to this effect. It shall be tho duty of such pub110 body awarding tha oontract, and it3 agents and officers, to tako cognizance of Complaints of all violations of the prorl- sions of this Act oommittsd In the course of tho execution of t&e uontraot, and, vhen making payments to the con- traator of monies beuoming due under said contract, to vithhold and retain therefrom all sums and amounts vhlch shall have been forfeited purouaat. to tho herein said stipulation and the terms ot this Act; provided, hovevor, that no sum shall bo 80 vfthhold, retained or forfeited, exoept from the final paymsnt , vithout a fill lnvestiga- It ai be unlavful r0r my tion by the avardin~ body. contraotor to vitbhold from any subcontractor under him stiflclcnt sums to Covar any penalties vlthhold from him by the warding body on account or’ the said subcontractor’s ralluw to comply vith the tonns of this Act, and if payment has already been audo to him the contractor may roomer from him the smount or the penalty or forfolturo in a suit at lav. 3. The contractor and oath subcontractor “330.
shall kee;?, or cause to be kopt , an accurate record shov- ing the namea and OCCUpatLon3 of all laborera, vorkntm and machatica employed by him, in connection vlth the sald pub110 vork, and shoving also thn actual per diem vagsa puld to eaoh ot such vorkers , vhich record shall be open at all reasonable hours to the Inspection of the public body avardlng the contract, its o:ficors and agents.
“3ea. 4. Any construction or reqair vork done undlirr contract, and paid for in vhols or in part out of the public funds, other than vark done dlrootly by any public utlllty company pursuant to order of the RaIlroad Comxlsslon or other public authority, vhsther cr not done under public suparvlslon or direction, raid for ~-holly or in part out public funds, ~211 be held to ba ‘public vorks’ vlthln ~tho meanlry ot this Act. The t9rm I locality in vhich the vork la pertormod’ shall be held to mean the county, city and county, city, or othar political tovn, district subdlvlsion of this State in vhlch the building, highway, road, exaavation, development lmproveasnt or other structure, projeot, all cases in vhich th3 contraot is sltueted is warded by the Stato, any public body thsreof, and *4 Bon. Joe KunrrahIk, Page 4
shall be held to n&u the llmltr, qf the county, city and county, oIty, tovn, district or other political Is avarded in subdlvlslons on vhoso behali the contract all othar cases. The term *general yrovalling rate of shall be the rate deterfined upon aa such per dims vaps’ rate by the publIo body avardIng the contract, or author- In :tho matter shall be Ielng the vork, vho8e declolon Rothlng In this Act, however, shall be construed final. vorkman to prohibit the payment to auy laborer, ~chanlc employed on any PubUc vol‘k 03 nioresald of more thau the aald general prevalllr~ rate of vages."
Tour rlrst questiozl Is vhether or not the Tombs State 3Ighvsy Coxnlaslon coznes vlthln the provis1o.m of Artlclo 515ga, vo.~-non’s Annotated Civil Statutes , providing ror the pxw~aIlIng per dl&n vage r&to on publio vorks.
The Texas IIIghvay CommIssIon is an M.mInlstratIvo agency of our State emtrusted vlth that segment government daali$lg Vi*th eatobllshment , m?dntonnnca and control oi :he st8ta m @rays. Article 6663 Vernon’y Amoated Civil Statutes; lOc5; !+wks v. State v. 3tit.h (Clv. A p.) $2 S.U. (26) *itton 131; Flslrn v. lkes, I.21 Tex. 355, 48 App.), 88 3.U. (2d P In matters of judgment touahing its ftmctlona, ;;.I24 fm. I; is Invested with ride dlsoretloa. Johnson v. Ferguaon, 55 3.W. (26) writ dlsalseed. Moreover, a controot asde by the State ~i&hvay Comlaslon Is a contraot of the State. Artlole 6674k Vsrnon's Annotated Civil Statutesi Sherman v. Case (Clv. App.! 279 3.V. 508.
Consequently, vc hold that the State Aigbvay Commlsslon Is the "public bodf' dlrectad by the Legislature In Seotlon 2 of hticle 5159a, Vernon's Annotated Civil Statutes, to ascertain the general prevalll~ rato OS psr diesi vagos and to specify t&e sama In Its calls fw bldii.
In tbiu conhectlon you point out that; "In theso protests, our attontlon vas called to the ,CAct that the Texas State FIlghvay Department had adver- tised scale of va@8, vhIch for aovoral types of vork- men, vES huer than the scale being paid on the Harsh~ll and the wale being paid on vcark for Ford daa project the Travis County Hater Control and Improvsmnt Dlstriot Ko. 1, as ~011 as on other construction vork In the City of Austin and in Trawls Countg.R
lion. SOS Kunsohlk, paga 5
The deteWnation and reguletlon of prevailing vags rates mcler ArtiCle 5159a 13 a legislative and not a judicial function (gocthem Prison Co. v. Rennels (C.C.A. 1937) 110 S.Y. (2d) 606); revailing rate by the State md an admlnistretive finding of that t mghvay Comslsslon 13 tlnal. Section of Article 5159, Vernon's hotated Clvll Statutes, Southern Prison Co. v. Rennels, supra.
Please permit us to call your attention also to 667hp, Vernon'8 Annotated Civil Statutes, Acts 1911, &ticle 42~d LeglsLoture, page chapter 46, vhich deals specifically vith minimum wages hlghwap labor and reada as follws:
3ec. 1. Rereaftor the State Rlghvay Conunlsslon in contracts ior the construction, maintenance or im- letting provement of any deslgmted State iii$wvey, ~hsll be auth- oTised to require that all contrectu f%r any such VOW%, co?ltaln a provision that no peroon vi11 be mployed, by the ccntractor, to perform manual labor in tho course of the constmiction, maintemnce or lmyrovenent of any such hlghvny at a uage of less than thirty cents per hour, u:d that any violation of any such provlslons of the contract by the contractor, subcontractor, or other person subject to such provision of tho contract, shall authorize the ComnLsslon to vlthhold f‘rom any noney duo the contractor a suf~lclent sum to pay any person such minfmum vage for any labor performed, or the Commission may, for the benefit of any euch person, r&over such sum on the bond of the contractor, if It does not have in its posaossion monq wing the contractor, applicable such purposes. That citlxem or the United States and of the county wherofn the vork la being proposed shall alvays be lven in such omploymmt; provided also that f preference other dspartzsents, bureaus, coamisslons md lnstltutlms of the Qtote of Texas in all construction vork of every employnont, of Cay labor shall llke- character requiring vise be authorlsed and ompovered to exercise the same authorlty horoln conferrod on the State Ylghvag Comslsslon.
%ec. 2. Hereafter, for bid3 in advertising the construction, maintenance, or lmprovomnt of any designated State Hlgbwsp, the Comisslon, in the event it deolres to exercise th4 authority herein conferred to require a provision for such mlnlnnm vage, sball so state in the advertlsezaent, so that all bidders may be avaro such requirement in subzzlttlng bids for such York."
aon. Joe Kunschlk, Page 6
Consequently, it XSSY be seen in harmonizing Articles 9598 and 6674p, Vernon’s Annotated Civil Statutes, that vu14 the State Ki@vay CO~SS~~ has the dut to detertsine and specify + the prevailing wag4 Mts, it 14 also .nvosted vith the :-over to require in Its contract that no person %-- s6nual labor In the course of the construe- ~a, aslntenance and laprore3mnt of State hlghvays at a vage & 10s~ than thirty cents par hour.
A final question remains to be ansvered and that 1s *&her or not a contract the construction of bvn sprinkler spsta on Rlghvay Iio. 81 north of Austin in Travis County con- the "construction of pub110 vorks" opoken of In Article stitutes 95ga, Yoz’.QoD’S Annotated Cl~ll Statu?.ca, or the "constructioc, or improvement of any daslgnated State hlghvay" ~~tenanc4 spoken of In Article 667&p, Vernon's Annotated Clvll Statutes. y. hold that such construction fulfills both requlremsnts.
The definition of what shall constitute "pub110 vorks" 1s specifiCally set out in Seatlon Ir of Artlcl4 5159a, Vernon's Civil Statutes, to read ea follws: motated
*Any construction or repair work done under and paid for in whole in part out of the publio funds, . . . shall be held to be 'public vorksf vlthln the meaning of this Act."
S8e also EIsploYers C2uIualty Co. v. Stuart Abstract co.. VhiCh Jud@ Speer held that the construction (Co& App. 1!%9), or a county road Is a pub110 vork. Ue feel that the construction a sprlnklor systea for the improveuont of a hlghvay also 18 8 npnblfc vork" Vithin th4 m4ULing of Article Vernon’s motated Civil Statutes, and the "iaproveawnt 0r A d4signat4d stats Bighvar” vithln the ming of Article 6674p, Vernon's motated Civil Statutes.
Consequently, It is the opinion of thin de~rtaont aad you am msP4Ctffily advised that the contract of the State of a lavn s?rlnkler fL1ghvay Commlsslon construction rJatsn on Elghvay No. 81, north of Austin in Travis County, vi11 be governed by the provlslons of both Artlales 5159a md g74p, VBCPOP'S Annotated Civil Statutes, that under the provi- s;om of Article 51594, Vernon's Annotated Civil Statutea, it la the &moral. ~0 duty of the l%lghvay Comalesion to nsoerttin vage rates In Travis County and specify the sama prsdllng *7 Eon. Joe Kmschik, Page or type of rorkaan mechanic %n its call
for each onft bida (conditioned
by its pover under Artlole 6674~~ Verncux's kpnouted Civil Statute8 ). @%XJ.@lly, thst the flndla#l of the u&vay Coxal8slon M to the prelaillng vage ntew am fInal.
Yours very tray A!i’TORREY (mERAL OF ‘ncxA3