                                       The Attorney             General            of Texas

JIM MATTOX                                                  July 1, 1985
Attorney General



Supreme   Coun     Building           Eouorable   Lloyd Cr,l~w                             Opinion No.   JM-329
P. 0. Box 12548                       cheirQlan
A”,llrl. TX. 78711.2546               Committee on Labor and Employment                    Re: Authority of a city to
5121475.2501                             Relations                                         establish  prevailing   wage
Telex 9101674.1367
~e,scopier   51214750266
                                      Texas Rouse of Repmaentativea                        rates under article   5159a,
                                      P. 0. Box 2910                                       V.T.C.S.
                                      Austin, Texas   78X9
714 Jackson. Suits 700
Da~hr. TX. 75202-4506
                                      Dear Representative     Criss:
2147428944

                                           You have inquired about the propriety    of the procedures    being
 u)24 Albd,,~     Ave.. Suit0   160   used by the city elf Rouston to determine the prevailing  wage rates to
 E, paso. TX.     793052793           be paid to workem engaged in the construction      of public vorka for
 9lY533-3464                          that city.  You state that

 1001 Texas. Suite 700
                                                   obvioual.g , the establishment     of 5 prevailing    wage
 “ous.,o~, TX. 77002-3111                          rate for building      construction     by the city     of
 7l312235886                                       P.ouston will dramatically    effect   the livelihood   of
                                                   many voxking people in the Earris County area.
 906 Broadway. Suite 312
                                                       It i~r my understanding thst the city of Eouston
 ,.ubWck.   TX. 79401.3479
 806i747-52%                                       city corn~cil intends to adopt an alleged wage rate
                                                   study recently      completed by 5n independent con-
                                                   tractor   ‘to the city   in the very near future.    The
  4309 N. Tenth. Suite B
                                                   basis   I’or the findings     and conclu5iona    of this
  McAllen. TX. 78501~1685
  512l6S.24547
                                                   alleged    atudy~ is a veighted    average rather than
                                                   determixlng a general prevailing      wage rate.

  200 Main Plaza. Suite 400                            My concern relates    to the methods used ‘by the
  San An,on,o. TX. 782052797
                                                   city’s   agent to establish    such a prevailing   wage
   5121225-4191
                                                   rate vhen tested by the una.mbiguoua proscriptions
                                                   and    a~:atutox-y directives     of  article    5159a.
   An Equal OppOftunilYl                           V.T.C.S.
   Affirmalive Aclion EmPbYer

                                              The pertinent    parts   of article    5159s read as follova:

                                                        Section    1. Not leas than the general      pre-
                                                    vailing    rate of per diem wages for vork of a
                                                    aimilax character    in the locality    in which the
                                                    work is performed      . . . shall   be paid to al1
                                                    laborel s, workmen and mechanics employed by or on
                                                    behalf of the State of Texas, or by or on behalf
                                                    of anJ’ county , city      and county,    city, town.


                                                                       p.   1507
llonorable   Lloyd Crlar          - Paat. 2   (RI-329)




             district  or other political      subdivision               of the
             Stste.  engaged  III the    construction      of             public
             works . . . .

                 Sec. 2.   The public body awarding any coutract
             for public work . . . or otherwise undertaking any
             public   work,   ahat:, ascertain the general   pre-
             vailing  rate of per diem wages in the locality   in
             vhich the vork is to be performed for each craft
             or type of vorkmm or mechanic needed to execute
             the contract.   . . .

                  .   .   .   .

                  Sec.4.     . . . .  The term ‘general   prevailing
              rate of per diem wages’ shall be the rate deter-
              mined upon as such rate         by the public      body
              avardlng the contract,      or authorizing   the work,
              whose decision    ia the matter shall be final.       It
              is mandatory thrt      the public    body state     such
              prevailing   wage as a sum certain,     in dollars   and
              cents.     Nothing 111 this Act, however,      ahhall be
              construed to prohibit    the payment to, any laborer,
              workman or mechanic employed on any public work as
              aforesaid   of more ,than the said general prevailing
               rate of wages.

        One of the primary purposes            of    the   statute   is to

              protect  workmen, laborers.    and mechanics  from
              being required, if they accept employment, to work
              for leas than the prevailing  wages paid . . . for
              the same class at.d character of work.

  Southern Prison Co. v. Renuels. 110 S.W.Zd 606, 609 (Tex. Civ. App. -
  Auarlllo  1937. writ diam’d~,    This conclusion   “aa quoted 55 authori-
  tative by the Texas Supreme Court in Texas Righvay Cosmiaaion v. El
  Paso Building and Conatrwtion      Co., 234 S.W.Zd 857 (1941).     and has
  been recently   reaffirmed  cl a case vhich reiterated     that a primary
  objective  of the statute rre.5 “to protect   the workman from working at
  rates below the prevailing;     wages in the locality.”      Cullipher- v.
  Weatherby-Godbe Construction    Company Inc.,   570 S.W.2d 161. 164 (Tex.
  Civ. App. - Texarkana 1978, writ dism’d).

        The genesis of the Texas Prevailing   Wage Statute,   like that of
  the federal Davis-Bacon Act, 46 Stat. 1494 (codified    as amended at 40
  U.S.C. 55276a to 276a-5 (13132)). upon which it was modeled, is clearly
  stated in the act’s “emergancy clause” as follows:

                   Sec. 7. The fact           that   there 15 uo adequate lav
               protecting  laborers.          workmen    and mechanics engaged


                                              p. 1508
..       ’
     *

             Ronorabla   Lloyd Criaa - Paga 3           (J&329)




                         in doing and perfomiug           vork   on public vorka in
                         Texas and ita         political     aubdivlalona.     and the
                         further     fact   that     many  contrqctora     are   taking
                         advantage of the present           iaduatrisl   and ccoaomic
                         condition     to beat d,wn vages to a lavel far belov
                         that    required    co mslntain a laborer.         vorkman or
                         mechanic      in reasonable       circumstances,      and the
                         further     fact   that this condltloa        has created      a
                          social   problem dewnding         the immediate attention
                         of the legislative        department of our State, create
                          an emergency       and an imperative          public   neces-
                          sity.   . . .

             Acts 1933, 43rd Leg., ch. 65, 07, at 93.             While the Texas lav did not
             set out a methodology        for t!x determination        of the prevailing      vage
             rates for the respective        trades,   this office    very early held that It
             vas the duty of the appropriate              governing body ‘to      ascertain     the
             general    prevailing    vage rates”       for   the respective     trades     in the
             locality    in question.     Atto,rney   General Opinion O-2059 (1944).           This
             opinion    simply restated      thd straightforward       statutory    directive    to
             establish     what   is “the    gexral      prevailing   rate” of pay for each
             particular     craft and trade.       The essence of this statutory       mandate 1s
              simply that the governmental entity            determine for its locality        what
              actual wage rate is predominant for each craft.

                    Article    5159a requires   a governmental body to pay “the general
              prevalllng    rate of per diem Tdages.” but it does not define          the term.
              Although section      4 delegates    that determination     to “the public body
              awarding the contract ,” the statute clearly          requires   that, in making
              the   determination,      a methodology     be adopted       vhich   demonstrates
              compliance with the “prevailing        wage” standard.    Your question Implies
              that “prevailing       Wage” and “veighted     average” constitute      different
              standards.      Assuming this ~1s correct,      if a city adopts a “veighted
              average” standard,      in cont’rast    to a “‘prevailing    vage” standard,      it
              has. in our view, failed      to c,omply vith the statute.

                                                   SUMMARY

                             A city is requl,red by article             5159a. V.T.C.S..
                          to pay “the   gene,:al prevailing            rate of per diem
                          wages” in avarding a contract                for public   works
                          construction.




                                                                -
                                                                    JIH     MATTOX
                                                                    Attorney General of Texas



                                                  ‘,.    1509
Hooorable       Lloyd   Criss      -   Page 4     (Jn-329)




TO?l GREEN
First  Assistant        Attorney        Ceruxal

DAViD R. RICHARDS
Executive Assistant             Attorney     General

ROBERTGRAY
Special Assistant            Attorney      General

RICK GILPIN
Chairman. Opinion Committee

 Prepared by Colin           J. Carl 6
 Rick Gilpln
 Assistant       Attorneys      General

 APPROVED:
 OPINION COMMITTEE

 Rick Gilpin,   Chairman
 Colin Carl
 Robert Gray
 Jim noellinger
 Jennifer Riggs
 Sarah       Woelk




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