     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-
                                       mentOtmpti"rikh#ablmtm
                                       vego on+ybllo vork# laws.
          Th8Bk you for
in& thb apiaion of this
or 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 ly stb nl
                                                    o nm g h v8y
                                                               lo .
                                      in TM ViBc o unty.




    body 8h&lMOeP-        th. ~nW8l~V8i~~bin
    thb lootiity lnrhiohthowrk      18 to k p.?,to=d                           ioF
    eaoh 0-t   or tn.  O? VO?km8~ or medm~i0   BMdbd                          t0
     lxeOUte   the   OOntl'0Ot,     and    th~l    8peOifJ     8UOh     W48   8-O
     in it8 call ?or bid8 anb in the oantrrat it8Olf.'
Bon. Joe Kunachlk,             Prge 2


             Artlola   51598, Veron'o  bnnotatod Civil Statutea,           Acta
1933,    43rd Legislature,   p. 91, oh. 45, read3 a8 follovs:

               "3ec.      1.    Not less
                                     than the general prevailing
        rate   ot   per    diem   vases  uork of G slmllar
                                           for                 character
        in 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, or on behalf of
        any oounty, city and county, city,           tom, diotrlct     or
        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 the con-
        tract, and shall specify         in the call for bids for said
        contract,   and in the oontraot ItaeLf,         what the general
        prevailing    rata    of per diem vages in the #aid locality
        is for each craft or type of v~rlmmn needed to execute
        tha contract,      aloo tho prevalllng     rate for legal holi-
        dsg and overtime voPk, and it ohall be nmndatory upon
        the contraotor      to vhom the contmct       la avardad, on3.upon
        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,          for each calendar day, or
        portion thereof,       such laborer,   vorkaan or meohaalo Is
non. Joe Kunschik,   Page 3


     paid less   than the said   otlyulatcd    ratea   for   any work
     dons undar ml& contract,  by him, or by any subcontractor
     ur.darhim, 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-
     tion by the avardin~ body.         It ai      be unlavful r0r my
     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.
           “330. 3.  The contractor    and oath subcontractor
     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,    or
     raid for ~-holly or in part out of 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,
     tovn, district    or othar political    subdlvlsion   of this
     State in vhlch the building,      highway, road, exaavation,
     or other structure,    projeot,   development or lmproveasnt
     is sltueted    in all cases in vhich th3 contraot      is
     warded by the Stato, or any public body thsreof,          and
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
     subdlvlslons    on vhoso behali the contract    Is avarded in
     all othar cases.     The term *general yrovalling    rate of
     per dims vaps’     shall be the rate deterfined    upon aa such
     rate by the publIo body avardIng the contract,       or author-
     Ielng the vork, vho8e declolon     In :tho matter shall be
     final.    Rothlng In this Act, however, shall be construed
     to prohibit    the payment to auy laborer,   vorkman or
     ~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 of government
daali$lg Vi*th the eatobllshment       , m?dntonnnca and control oi :he
st8tam @rays.         Article   6663    Vernon’y     Amoated   Civil Statutes;
*itton   v.   3tit.h  (Clv.   A p.)  $2  S.U.   (26)   lOc5; !+wks v. State
       App.), 88 3.U. (2dP 131; Flslrn v. lkes, I.21Tex. 355, 48
;;.I24       fm.     In matters of judgment touahing its ftmctlona,
I; is Invested with ride dlsoretloa.             Johnson v. Ferguaon, 55 3.W.
(26) 153, 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 a scale of va@8, vhIch for aovoral types of vork-
     men, vES huer than the scale being paid on the Harsh~ll
     Ford daa project  and the wale   being paid on vcark for 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);
md an admlnistretive    finding of that     revailing  rate by the State
mghvay Comslsslon 13 tlnal.       Section t of Article    5159, Vernon's
hotated    Clvll Statutes,   Southern Prison Co. v. Rennels, supra.
            Please permit us to call your attention also to
&ticle   667hp, Vernon'8 Annotated Civil Statutes,  Acts 1911,
42~d  LeglsLoture,  page 69, chapter 46, vhich deals specifically
vith minimum wages for hlghwap labor and reada as follws:

            3ec.    1. Rereaftor      the State Rlghvay Conunlsslon in
     letting    contracts   ior the construction,        maintenance or im-
     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    for such purposes.
     That citlxem       or the United States and of the county
     wherofn the vork la being proposed shall alvays be lven
     preference     in such omploymmt; provided also that af 1
     other dspartzsents, bureaus, coamisslons            md lnstltutlms
     of the Qtote of Texas in all construction             vork of every
     character requiring       employnont, of Cay labor shall llke-
     vise be authorlsed      and ompovered to exercise         the same
     authorlty horoln conferrod         on the State Ylghvag Comslsslon.
           %ec. 2. Hereafter,     in advertising    for bid3 for
     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 of such requirement in subzzlttlng bids for such
     York."
aon. Joe Kunschlk,      Page 6


           Consequently, it XSSYbe 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     for the construction  of a bvn sprinkler
spsta on Rlghvay Iio. 81 north of Austin in Travis County con-
stitutes the "construction   of pub110 vorks" opoken of In Article
95ga, Yoz’.QoD’SAnnotated Cl~ll Statu?.ca, or the "constructioc,
~~tenanc4   or improvement of any daslgnated State hlghvay"
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
motated    Civil Statutes,  to read ea follws:
           *Any construction or repair  work done under contract,
    and paid for in whole or 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..
(Co& App. 1!%9), in VhiCh Jud@ Speer held that the construction
or a county road Is a pub110 vork.         Ue feel that the construction
of a sprlnklor   systea for the improveuont of a hlghvay also 18
8 npnblfc vork" Vithin    th4 m4ULing of Article     5159, Vernon’s
motated    Civil Statutes,   and the "iaproveawnt 0r A d4signat4d
statsBighvar” 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
fL1ghvayCommlsslon for the construction     of a lavn s?rlnkler
rJatsnon 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
~0 duty of the l%lghvay Comalesion    to nsoerttin   the &moral.
prsdllng   vage rates In Travis County and specify the sama
Eon. Joe Kmschik,   Page 7



for each onft     or type of rorkaan or mechanic %n its call for
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
