-                TEE    ATTORNEY    GENERAL
                           OF TEXAS




    Honorable Chet Brooks          Opinion No.    JM-1164
    Chairman
    Health and Human Services      Re: Inclusion of fringe bene-
       Committee                   fits in calculating the pre-
    Texas 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 pre-
    vailing 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   sub-
            division 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



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Honorable Chet Brooks - Page 2     (JM-1164)




reviewable.  See Texas Hiahwav Comm'n v.        El Paso Blda. &
co st .
-1                       234 S.W.2d 857        (Tex. 1950).    The
opinion concluded that 'a public body 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 incon-
sistent, 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 pre-
         vailing 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  in its calculation    of the
                prevailing wage 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).



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