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          OFFICE   OF THE ARORNEY          GENERAL   OF TEXAS
                                 AUSTIN.




    Rcnoreble C. R. PElller, Commlsaicner
    Tezas Jnemgloyment Compensation
    Austin, Texas

    Doer Sir:




    which reads    as follows:




               “1s the regulation    c.,uotod ,a valid   one
          under the Constitution    of Texas’?”
                After carefully   considering    the above letter,  we
    concluded that the only constitutional        question involved
    ?:herein is whether the LeCislaturo       onn validly authorize
    the Texas Unemployment Corzpensation Commission to derine
    n~‘;eek” es is authorized   in Article   5221b-17(p),  supra.
  __._--      -   -




Honorable         C. R. killer,   Page 2


           The definition    of *week” becomes important in
determining if and when an employer beoomes an employer
subject to the provisions     ot the Unemployment Compensation
Act, same beinS Artiole    !3221b, Chapter 14 of Title 83,
Vernon’s Annotated Civil Statutes.      Seotion (i) (1) of.
Artiole  5221b-17, Vernonle    Annotated Civil Statutes, read6
as r0u0ws:

                  “(f)   *Employer* means
                 “( 1) Any employing unit which for some
           portion of a day but not neoessarily      sizmultan-
           eously, In each of twenty (20) different      weeks,
           whether or not such weeks are or were con-
           secutlv’e, within either  the cu.-rent or the
           preceding calendar year, has oz bad in employ-
           ment eight (8) or more individuals     (irrespective
           of whether the same individuala    are or were
           employed in each such day) :”
           To illustrate   the point lr.volved,  suppose an
employer employs eight persons for eighteen calendar weeks.
At the end of the eighteenth week orie employee is dismissed.
At a later date, but within the same calendar year, the em-
ployer employs a person who works fcr seven days, beeinning
amploymant on Wednesday and terminating      employment on the
follo~wing Tuesday.    Under the provision8   of Rule No. 37,
promulgated by the Commission by virtue of Article      5221b-17(p),
the seven days work constitutes     employment during parts oi two
different  weeks rather than one entire week’s employment, and,
therefore,  the employer is subjeot to the provisions-oil     the._:
Unemployrient Compensation Act as provided in Seotlon (f ) (1)
of Article  5221b-17, supra,
           The legislative   power of the State is vested in
the LeSislature   by Artiole  2, Sect102 1 of the Constitution
of Texas and same reads as follows:
                  “The powers of the Government of the
           State of Texas shall be divided into three
           distinct   departments   each of which shall be
           confided to a separate body of SiaSistraOy,
           to wit:    Those whioh are Legisletive     to one;
           those whioh are Exeoutive to antther, and those
           which are Judicial    to another; end no per-
           son, or colleotlon    or pcraons, being of one
           of these departments, shall exercise       any
           power properly attaohed’to     either of the
           others, except in the instances      herein ex-
           pressly permitted,”
Xonornble     C. R. Killer,   Page 3


            Generally speaking, the Legislature  cannot delegatr      '
the power of making laws to any other body.     Green v. City
oft Amarillo,  244 S. W. 241 (Affirmed 267 2. '1. 702).  This
doctrine   is Bet forth in 16 Teze8 Law Review 20 which reade,
in part, a8 r0lhi8:

               "The constitutional      provisions    which are
       held to forbid delegation         of pcwer are those
       which set up the separation          of powers.     Gov em-
       mental power8 are usually divided           among the
        executive, ,judloial,      nnd legislative     branches.
       The separation of powers e8tZibliBhed by’the
       Federal'Cons tituti on operates es on implied
        llmitotion;    that 18, slnae legislative         power
        is vested in Congress, the presumption or
       implicetion     is that such power may not be given
       to one of the other branches.            In the Texas.
        Constitution,     however, this separation       of
        power8 is not left to lmpllcatlon;           It is
        specirically~proviaed       that no one of the three
       branches may'exarcise        powers properly belong-
        ing to the other.       The effect     Of this SePara%&On
       .6f goviers 88 a limitation       on governmental
       action 18 felt more forcibly          by the legislative
       body than by the other branches, beCEu8e it Is
        the polioyforming      agency or the government
        and has been aseigned the duty Of allocating
        the function8     of government undistributed
        by the Constitution.
             "A doctrine whi'ch has arisen a8 a sort
       of buttress   to, the separation   or powers and
       which hi8 assumed'a POSitiOn Of primary import-
       ance in Am-rioan oonstltutional       law 18 that
       delegated power may not be redelegated.        One
       of the earliest    and best expression8    Of the
       Idea is found in Looker
                    "*The legislative can:not trans-
              rer the power of making la-x8 to
              any other band8 for, it being but
              a delegated power from the People,
              they who have it oannot Pass it
              over to others.**
              Rotwithatanding,    it ha8 been a long established
fact   that   the Legislature    Possesses many Power8 whlih maY ba
Eonorable   C. R. :.filler,   Page 4


exercised    by it direotly or through some othor designated
aCcncy or body.     In Burges8 v. American Rio Crande Land
eCIrrigation    Co., 295 S. W. 649 (Wit refused),  the court
said:
            "The Legislature   cannot delegate Its
     pcwer to amke laws, nor can it clothe any
     other agency of government with Judicial power
     except csurts.     That fundamental rule, however,
     mu-t have some apparent, though not real,
     exceptions.     The customs of the ages have
     given the Legislature     the power to create
     agencies to carry out the legislative           intent
     and administer detail8      in matters conducting
     to the prosperity     end Li8efUbISS.3     which could
     not be fld.miniBtered, for obvious reasons, by
     the Legislature.      To such agencies the Leg-
     lslsture    doss not delegats the ?ower held by
     it alone to enact laws but clothe8 them with
     the   powers of administration         of laws created
     by the Legislature.      . . ."
           The Legislature   provlded that the word "'week' means
such period of ssvsn.(7)    consecutive  calendar Gays as the
Conmission may prescribe."     The Legislature   undoubtedly
realize?  tGt the Commission, after n long and careful study
of the em?loyr?ent 4tutlon    in Texas, would be in a better
position  to determine what particular    seven consecutive  days
would best ocnstitute    a Week" to er:?ectively   carry out the
purposes of the Une:%ploynent Compensation Act in Texas.
           The Legislature    recognized    that in certain   situations
It might be necessary,     in order to pzoperly administer the Un-
employment Compensation L&ws of TeXz:J, that a Week"          should
constitute  some particular    seven con:3eoutive days.      Therefore,
this natter was expressly     given to t::e Cormission to decide.
It cannot be sala that the Legislatuze        did not set a bnsio
standard or to provide a definite       po:icy or rule of action
ror the Comnission to r0ii0w.       Artic1.e 5221b-17( p), supra,
provides that a week must contain seven days and, further,
that the particular seven day8 must be consecutive.           ?he Com-
mission is given no discretion      in the, matter except designa-
ting the partioular     8even days.    The Commission cannot
declare a we-k to be six day8 nor can it declare that a week
shall constitute    eight days.    Neither can the Commission
enact a rule to the effeot that a week shall conetitute
seven pertioular day8 which are not in OOU8eOUtiVe          order.
Scnorable   C. R. Killer,   Pace   5



               For the rsascns herein stated, we are of the opinion.
that neither Article 5221b-17(p),       tupra, &living the TeXa8
Gilenploy.3nt Cozpensatlon Cormlssicn the authority       to define
*I:':Qek , " nor Wgulation   No. 37 of the Comlseion   whioh derines
"'Yeeic," Is invalid 8s being an unlawrul delegation      or ex-
eroiso 0r legislntive       authorrity.

                                            Yours   very    truly

                                       ATTORNEY
                                              GEX?XALOF TX&3


                                                     Glenn R. Lewis
                                                          Assistant


                                       BY    XL-
                                                           Lee Shoptaw

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