        TBDC ATNDISNF,Y GENERAL
                OF %-ExAs
                 All-.        -         7e711


                         March 29, 1977




The Honorable Eddie Bernice Johnson             Opinion No.   H-965
Chairperson
Labor Committee                                 Re: Constitutionality
House of Representative6                        of Fire and Police
Austin, Texas 10767                             Employee Relation6
                                                Act.

Dear Chairperson Johnson:
     You have requested our opinion concerning whether article
5154c-1, V.T.C.S., ia an unconstitutional delegation of
authority. Article 5154c-1 provide6 for collective bargaining
by police and fire employees where authorized by the voters
of a political subdivision. Sec. 5. Section 10 provide6
for voluntary arbitration in the event of an impasse, and
section 16 provides for judicial action when a political
subdivision elects not to submit an impasse to arbitration.
Section 20(b) states that a collective bargaining contract shal
take precedence over state and local civil service provisions
where the contract so provides. Thus, in the event of an
impasse, the act provides for a delegation of the authority
to fix the terms of employment to an arbitration board or
the judiciary.
       Section 11 of article 5154c-1 provides for the voluntary
selection of an ad hoc arbitration board to resolve an impasse;
its provi6ions operate independently of the General Arbitration
Act. V.T.C.S. art. 239, et seq. While we have discovered no
Texas cases dealing with such a delegation, the rulings of
courts   of other states have been held applicable to Texas "on
the subject of delegation of legislative power." Trinunierv  1
Carlton,    296 S.W. 1070, 1079 (Tex. 1927).
     The validity of collective bargaining statutes requiring
compulsory, binding arbitration for public employees has
recently been examined by the court6 of several states.
Such statutes have been generally upheld againet attacks
based upon an alleged unlawful delegation of authority to ad
                         Town of Arlington v.
hoc arbitration panels. --                 ---Board of



                                  p. 4021
The Honorable Pddie Bernice   Johnson - page 2   (X-965)


Conciliation and Arbitration, 352 N.E.Zd 914 Mass. 1976);
'~h%&%f%&             ~~~.~~':3~'~~E::~6290
(N.Y. 1975); Cit orwarwick v. i&wick Re ular Firemen'6
Assoc.,    256 A.-d zbb(R.I,Tgm6V);State   *       of LaramZe,
m2d         295 (Wyo. 1968). In Cityofize      or c mrd
Teacher's Assoc.,    304 A.2d 387 (Me.T973), the c=rt ruled
that such aqation         would be lawful where sufficient
standards are given for the exercise of the delegated
authority, but held the act before it unconstitutional for
lack of such standards. In Dearborn Fire Fi hters Union No.
412 v. Cit of Dearborn, 231 N W 2d 2237NbS~e70tr
judges-7% sp it evenly on the queition of whethe; such A delegation
could be made to an ad hoc arbitration panel. The only
courts   which have held such a delegation to be unconstitutional
regardlea of standards have done so pursuant to constitutional




similar to that of Texas is that such a delegation is proper
where sufficient standards are provided. Of course, such
standards are clearly necessary under Texas law. See, e. .,
Housin Authority of City of Dallas v. Hi inbothaiiiiii14 S W 2d
d.13140)1       A ttorney Gcemtter  -  -i%+%&        42%7h.

     In light of the authorities concerning compulsory
arbitration, it is our opinion that the courts of Texas
would uphold the voluntary arbitration and collective bargaining
provisions of article 5154c-1 so long as sufficient etandards
have been provided. Section 4 of the act provides that
political subdivision6 shall provide firemen and policemen
with "compensation and other condition6 of employment . . .
which prevail in comparable private sector employment. . . .I
Section 13(a) provider that an arbitration panel is to
consider "hazards of employment, physical qualifications,
educational qualifications, mental qualifications, job
training, and skills," among other factors, in reaching a
decision. We believe it clear that euch arbitrators should
likewise consider the standard provided in section 4, su ra.
These standard6 are substantially identical to those foun
                                                       %
sufficient in the aforementioned authorities. See --
                                                   Town of
Arlington v. Board of Conciliation and Arbitrat%i, supra;
City o-fAmzerdam v. Heleby,  supra;&      of
                                          - Warwick vL Warwick




                              p. 4022
The Honorable Eddie Bernice Johnson - page 3   (H-965)



Regular Firemen's Assoc., supra. Accordingly, in our
opinion sufficient standards have been provided for the
exercise of authority by an arbitration board convened
pursuant to article 5154c-1 and the delegation of such
authority is constitutional.
     Section 16 of article 5154c-1 provides that in the event
a political subdivision elects not to arbitrate, the collective
bargaining association may bring an action in district court
and that the court
          ehall have full power, authority, and
          jurisdiction to enforce the requirement6
          of Section 4 hereof as to any unsettled
          issue relating to compensation and/or other
          terms and condition6 of employment for
          firefighters and/or policemen.
If the court finds the political subdivision to be in violation
of section 4, it "shall . . . declare the compensation and/or
other terms and conditions of employment required by Section
4...."
     As previously noted, section 4 provides for:

          compensation and other conditions of
          employment that are substantially the
          same as [those] . . . which prevail in
          comparable private sector employment. . . .
     The fixing of salaries and terms of employment is a
legislative or administrative act. Highway Cormnissionv.
El Paso Buildin and Construction Trades Council, 234 Sx.2d
857-x4            w           Assoc.ofrris     Count% v. City
of Houston, 105 S. .         (Tex.9=).         Tex. o=t.
Gt. 3, s 44. We have found no Texas casein which a court
has fixed compensation and other term6 of employment. See
Austin Fire and Police Departments v. Cit of Austin, 21B
S.W.Zd m($%.m;                       --+- o wmort--
                         Fire Department                  Worth
v. Cit of Fort Worth, 2fl.W.Zd      664 (TG. 1949).   In our
ZeE+h--t e fixingofompensation     is analogous to rate-setting.
It is well established that the doctrine of separation of
powers precludes a court from setting rates; it may only re-
view the rates set to determine their legality. State v.
                                    526 S.W.Zd 526 (Tex. m75):
                                              93 S.W.Zd 372
            ; WiSSOUri, K.
                        --- 6 T. Railway Co.
                                         --  v. Empire EXpre6S



                          p. 4023
The Honorable   Eddie Bernice   Johnson - page 4   W-965)



Co.* 221 S.W. 590 (Tex. Comm'n App. 1920, jdpt. adopted).
The courts have required a certain rate only under statutory
provisions requiring equality of rates and evidence of a
certain rate charged by one of the parties to others. Edin-
&gL:Eg;t:;;     Co. v. Paschen, 223 S.W.  329 (Tex. Civ.K    --
               O),an'mS.W.          1085 (Tex. Comm'n App.
1922, judgmt. adopted).
     While section 4 of article‘5154c-1 requires '6ubatantially
the same* compensation as that prevailing in the private
sector, this standard falls far short of the precisenes6
of the requirements enforced in Xdinbur
quite similar to that of sectiondkm?v%?$                 and
       of San Francisco v. Cooper, 534 P.2d 403 (Ca   .-
       ZiTinvolved    a zanenge   to the legality of an
ordinance which set the compensation and term6 of employment
for public employees. The court began its analysis  by noting
that the ordinance was "clearly legislative in nature." - Id.
at 411. The court explained:
           In'addition, because a fair prevailing
           wage determination may take into account
           many component elements - such as various
           fringe benefits - which are frequently
           not susceptible to precise appraisal, a
           substantial measure of legislative dir-
           cretion is inevitable. -Id. at 417.
See Christy-Dolph v. Gragp, 59 F.2d 766 (W.D. Tex. 1932).
-
      Consequently, when a district court sets the terms and
 conditions of employment in accordinance with leotion 4 of
 article 5154c-1, it inevitably exercises legislative
 discretion. Such an exercise of legirlative powerr by the
 judiciary is specifically prohibited by article 2, rection 1




                               Accordingly, in our opinion,
 section 16 of article 5154c-1 unconstitutionally delegated
 legislative power to the judiciary.



                                p. 4024
,   ,,.   1




              The Honorable Eddie Bernice Johnson - page 5 (H-965)


                                    SUMMARY

                          The delegation of authority to an arbitra-
                          tion board to fix compensation and other terms
                          of employment under article 5154c-1 is con-
                          stitutional. The delegation of such authority
                          to the judiciary by section 16 of article 5154c-1
                          violates article 2, section 1 of the Texas
                          Constitution.

                                              Very truly yours,




              APPROVED:



                           NDALL, First Assistant




              C. ROBERT HEATH, Chairman
              Opinion Committee
              km1




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