The Honorable Jackie W. St. Clair        Opinion No. H- 042
Commissioner
Texas Department of Labor & Standards    Re: Authority of
P. 0. Box 12157, Capitol Station         Texas Department of
Austin, Texas   78711                    Labor and Standards
                                         in enforcement of
                                         Payment of Wages
                                         Statutes.

Dear   Mr. St. Clair:

     You have requested our opinion on a number of questions
regarding the Texas payment of wages statutes, articles
5155-5159, V.T.C.S.  Your first two questions inquire whether
the Department of Labor and Standards is authorized or
required to collect back wages owing to employees or former
employees of a regulated employer, and, in addition, whether
the Department is authorized to obtain and hold in trust for
an employee an assignment of wages against a covered employer
upon the filing of a complaint for an alleged violation of
these statutes.

     The Commissioner   of Labor Statistics is directed by
article 5159 to

            inquire diligently for violations of
            this chapter and institute prosecu-
            tions and see that the same are carried to
            final termination and generally to see to
            the enforcement of the provision hereof.




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The Honorable Jackie W. St. Clair - page 2 (H-842)



     The 'prosecutions" contemplated   by article 5159 are
those detailed under article 5157:

            Every person, partnership or corpora-
          tion, willfully failing or refusing to
          pay the wages of any employee at the
          time and in the manner provided in this
          statute shall forfeit to the State of
          Texas the sum of fifty dollars for each and
          every such failure or refusal.  Suits for
          penalties accruing under this law shall
          be brought in any court having jurisdiction
          of the amount in the county in which the
          employee should have been paid, or where
          employed.  Such suits shall be instituted
          at the direction of the Commissioner of
          Labor Statistics by the Attorney General
          or under his direction, or by the County
          or District Attorney for the county or
          district in which suit is brought.

     No statute authorizes the Commissioner to take any
action to collect back wages owing to employees or to obtain
from an employee an assignment of wages when a complaint is
filed. It is well established that

          an administrative agency . . , has only
          such powers as are expressly granted
          to it by statute together with those
          necessarily implied from the authority
          conferred or duties imposed. Stauffer
          v. Cit of San Antonio, 344 S.W.2d 158,
          Ym7&xT-sup.     T5161)

In our opinion, the payment of wages statutes cannot be
construed, either expressly or by implication, to permit the
Commissioner to collect back wages or to obtain assignments
of wages. Thus, we answer your first two questions in the
negative.

     You also ask whether a regulated employer violates the
payment of wages statutes  If he fails to pay an employee
on a previously dcsi,gnated date, and, Lf so, what particular
circumstances constitute  a violation.  Article 5155 provides:
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             The Honorable Jackie W. St. Clair - page 3 (H-842)



                         Every person, each manufacturing,
                      mercantile, mining, quarrying, railroad,
                      street railway, canal, oil, steamboat,
                      telegraph, telephone and express company,
                      employing one (1) or more persons, and
                      each and every water company not operated
                      by a municipal corporation, and each and
                      every wharf company, and every other
                      corporation engaged in any business within
                      this State, or any person, firm or corpora-
                      tion engaged in or upon any public work
                      for the State or for any county or any munici-
                      pal corporation thereof, either as a con-
                      tractor or a subcontractor, therewith, shall
                      pay each of its employees the wages earned by
                      him or her as often as semimonthly, and pay
                      to a day not more than sixteen (16) days
                      prior to the day of payment.

             This statute must be read in conjunction with article 5156,
             in order to determine what is required of employers:

                          An employee who is absent at the time
                       fixed for payment, or who for any other
                       reason is not paid at the time, shall be
                       paid thereafter on six days' demand.
                       Any employee leaving his or her employ-
                       ment, or discharged therefrom, shall be
                       paid in full on six days' demand.

                  We believe that article 5156 means that an employee has
             a right to rely on his employer's promise as to the date on
             which wages will be paid. Subject to the overriding provisions
             of article 5155, the precise date of payment depends upon
             the terms of the contract between the employer and his employee.
             But if a date has been designated as a pay day, and the
             employee does not receive his wages at that time, he may
             invoke the operation of article 5156 by making a demand on
             his employer.  If the employee does not receive his wages
             within six days of the date of such demand, the employer
             is in violation of the statute, and thus subject to the
             fifty dollar civil penalty of article 5157.
The Honorable Jackie W. St. Clair - page 4 (11-842)


      An employer may also violate article 5155 by failing to
pay his employees at least as often as semimonthly, or by
 failing to "pay to a day not more than 16 days prior to the
date of payment."    In the first case, we believe that only
one violation per employee occurs for failure to pay semi-
monthly.    In the latter instance, however, a new violation
may be deemed to occur for each new day's wages which become
 overdue. For example, an employer who is scheduled to pay
 wages on April 30 is in violation of the statute if on that
 date his employees are not or have not previously been paid
 for work performed through April 14. On May 1, a new viola-
 tion occurs for work performed on April 15, and each day
 thereafter for each new day's wages which become overdue.
 Furthermore, if an employee makes a demand on April 30 for
 payment of wages through April 14, a separate and additional
 violation for non-payment of such wages will occur on May 6.
-See generally Attorney General Opinion H-388 (1974).
                      SUMMARY

          The Commissioner of Labor Statistics is not
          authorized to collect back wages owing
          to employees or former employees of a
          regulated employer, nor to obtain and
          hold in trust from an employee an assignment
          of wages for an alleged violation of
          articles 5155-5159, V.T.C.S.  An employer
          violates article 5155 by failing to pay
          wages "to a day not more than 16 days
          prior to the date of payment," and a new
          violation occurs for each new day's wages
          which become overdue.  The penalty for
          violation of article 5156 attaches only
          once to a particular set of wages due, no
          matter how often a demand is made.

                                   Vgry truly yours,

                                   $/&~: 7;&&
                                      L. HILL
                             ,' jAttorney General of Texas
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    The Honorable Jackie W. St. Clair - page 5 (H-842)



    APPROVED:




    bAVID M. KENDALL, First Amilitant




    opinion Committee




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