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                           THE       ATI-ORNEY    GENERAL
                                         OF TEXAS
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                                                Auguet 30, 1974


             The Honorable Jackie St. Clair           Opinion No. H-       388
             Commirsioner,
             Texas Dept. of Labor and Standards       Re:          Required time of payment
             Sam Houston Building                                  of wagee under Art. 5155,
             Auetin, Texae                                         V. T. C. S.

             .&or   Commieeioner   St. Clair:

                 You have requested. our opinion on the meaning of Article       5155,   V. T. C. S.,
             which provides in pertinent part:

                     Each person.  . . employing one (1) or more
                     persons.  . . mhall pay each of itr employeee
                     the wage! earned by him or her ae often a#
                     semimonthly, and pay to a day not more than
                     sixteen daya prior to the day of payment.

                  The 6peciSc rituation giting rice to your inquiry involves a corporation
             which propocles to adopt a new pay schedule.     The proposed pay schedule
             would.include a two week pay period beginning and ending on Sunday evening.
             Payday would be the Friday following the end of the pay period. Asruming
             for clarity of illustration that a pay period begins on a Sunday which is the
             Arat day of the month, the last day of the pay period would be Sunday the
             flft~enth. Pay&y would be Friday the twentieth.
                                                                           ,’
                  An we.underetand it this plan meets the law’s requirement that payment
             be made .at least rremi-monthly. Your question is whether the requirement
             that the employer “pay to a day not more than sixteen days prior to the day
             of payment” mandatea that payment be made within sixteen days of the day
             wageo are earned or merely within sixteen days of the end of a pay period.
             If the former is correct, the proposed~.payment schedule is improper; if
             the latter represents the correct interpretation of the law, the payment
             schedule ia perm~saible.




                                                 p. 1820
The Honorable Jackie St. Clair,   page 2   (H-388)




Statutes prescribing tbe time for payment of wages are found in most
of our fifty states.   However, judicial decisions construing the Texas
statutory language or similar provisions in our sirter states are rare
or non-existent.     We have examined the operation of similar statutes in
other states; see, e.g.,   N.Y. Labor Law, Sec. 196 (repealed 1966, now
&nrndin substance. at Sec. 191): Ran. Rev.%&,       Sec. 337.020; Mass.
Gen. Laws, c. 149, Sec. 148; American Mutual Liability Insurance Co.
v. Commissioner of Labor, 163 N. E. 2d 19 (Mass. 1959); U.S. Reduction
Co. v. Nussbaum, 6 CCH Labor Cases, P. 61,202 (Ind. App. Ct. 1942):
and we have examined the legislative history of Texas law; see generally,
Dal&Morning       News, Jan. through Feb., 19ll, Jan. through Feb., 1915:
Texas Senate Journal, 32nd Leg., p. 210 (1911). These are helptizlin
construing the language but do not provide clears or direct authority for
any interpretation.    They do suggest that Article 5155 requires pay-
ment from the first day of the pay period “to a day not more than
sixteen days prior to the day of payment, I’thus permitting an employer
to withhold wages~ for as long as sixteen days after the end of a pay
period. If they were the only aids to construction we would be inclined
to adopt that interpretation

   However,     we have been informed that your department has utilized
and enforced a consistent and long standing interpretation that the statute
require8 wages to be paid witbin sixteen dsys afterthey are earned.
Where a statute is ambiguous or uncertain a court will ordinarily uphold
a long standing interpretation given the statute by the agency charged with
its. administration.  ‘Calvert v. Kadane, 427 S. W. 2d 605 (Tex. 1968):
Shaw v. Strong, 96 S. W. 2d 276 (Tex. 1936) (Critz, J., concurring);
Franklin Fire Ins. Co..v. Hall, 247 S. W. 822 (Tex. 1923); State v. Houston.:
Gil Co. of Texas, 194 6. W. 422 (Tex. Civ.App. --Austin 1917, writ ref’d. ).
Since the statute is’unclear and since there has been no direct judicial
construction of the statutory language, we believe the departmental con-
atiuction would.be approved. Therefore, the payment plan about which
you have inquired would be invalid.                               I          \




                                   p. 1821
,


    The Honorable Jackie St. Clair,   page 3   (H-388)




                            SUMMARY

              Wages must be paid at least as often as
           semi-monthly and within sixteen days of the
           day they are earned.

                                       Very truly yours,




                                      Attorney General of Texas




    DAVID M. KENDALL,,     Chairman
    Opinion CWee




                                       p. 1822
