Can a Texas county commissioners court require prevailing wages, health benefits, or English-speaking staff on contracts that aren't public works projects?

Texas AG Opinion JM-1215: What Can a County Require in Non-Public-Works Contracts?

Plain-English summary

The Harris County Attorney asked three questions about county contracting: whether a commissioners court may prescribe prevailing wages on public works and other contracts, whether it may require contractors to give employees fringe benefits like health insurance and vacation leave, and whether it may require an independent contractor's staff to speak English and be subject to county approval of individual work assignments.

The Attorney General concluded a county must ascertain and pay prevailing wage rates, including fringe benefits reflecting local practice, on public works contracts under article 5159a, but has no authority to require prevailing wages on other county contracts, since the County Purchasing Act requires competitive bidding for those contracts and says nothing about local wage rates. For non-public-works contracts generally, any specification, whether about fringe benefits or an English-language requirement, must be directly related to the work actually being performed; requiring health insurance for security guards or janitors, or requiring English fluency without a specific job-related reason, would improperly restrict competition. The opinion did find the county could reasonably require a security or janitorial contractor to submit a plan identifying which employees are assigned to which work, and to let the county object to and reassign a specific employee, since these provisions protected the county's legitimate interest in safeguarding its criminal justice operations.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

County commissioners courts: The opinion confirmed counties must determine and pay prevailing wages, including appropriate fringe benefits, on public works contracts, but have no authority to prescribe prevailing wages on other contracts, and any other contract specification must be directly tied to the work being purchased.

Contractors and subcontractors bidding on county contracts: The opinion meant bidders on non-public-works county contracts, like security guard or janitorial services, could not be required to provide employee fringe benefits or meet requirements like English proficiency unless the county could show a direct connection to the quality of the work being performed.

Security guard and janitorial contractors specifically: The opinion found the county could require such contractors to be properly licensed, commissioned, or registered under the state's private security statute, and to identify and account for which employees were assigned to which duties, including letting the county object to and require reassignment of a specific employee, since these requirements were directly tied to the work and to safeguarding the county's criminal justice operations.

Common questions

Does a Texas county have to pay prevailing wages on all its contracts?
No. According to the opinion, article 5159a requires a county to ascertain and pay prevailing wage rates only on public works contracts. The County Purchasing Act governs other county contracts over $10,000 through competitive bidding but does not require prevailing wages, and the opinion found no other statute requiring or implying that counties set prevailing wages outside the public works context.

Can a county require contractors on other, non-public-works contracts to provide health insurance or vacation benefits to their employees?
Only if that requirement is directly related to the work being performed, according to the opinion. A blanket fringe-benefit mandate unconnected to work quality would improperly restrict competition under the competitive bidding statute, per the reasoning in Texas Highway Commission v. Texas Ass'n of Steel Importers, Inc.

Can a county require a contractor's employees to be proficient in English?
Only if there is a specific job-related reason, according to the opinion. The Attorney General found no basis offered for requiring janitors to speak English, though it noted communication skills required of security guards could be legitimate, job-specific requirements.

Can a county reject a specific contractor employee, such as one assigned to clean an area connected to a case they're involved in?
Yes, according to the opinion, where the contract reasonably lets the county's contracting officer object to a particular employee's assignment and have that person reassigned, since this protects the county's legitimate interest in safeguarding the operation of its criminal justice system.

Background and statutory framework

Article 5159a, V.T.C.S., requires a public body awarding a public works contract on behalf of a county to ascertain the general prevailing rate of per diem wages for each craft or type of worker needed and to specify those rates both in the call for bids and in the contract itself. Separately, subchapter C of chapter 262 of the Local Government Code (the County Purchasing Act) requires competitive bidding for county contracts over $10,000 but contains no prevailing-wage requirement. Because counties possess only powers expressly granted or necessarily implied, and because the legislature imposed a prevailing-wage requirement only for public works contracts, the opinion concluded counties lack authority to require prevailing wages on other contracts, and that doing so would in fact contravene the competitive-bidding statute's mandate that contracts be awarded through competitive bids rather than fixed local wage floors.

On fringe benefits, the opinion reaffirmed an earlier 1974 opinion holding a public body may properly consider fringe benefits in setting a prevailing wage rate for public works contracts, so if local prevailing practice includes certain fringe benefits, those benefits must be included in public works contracts under article 5159a. For non-public-works contracts, any fringe-benefit specification must instead be directly related to the work performed, following the office's own prior opinion in JM-1213 involving Houston's security guard contracts. The opinion applied the same "directly related to the work" standard, drawn from Texas Highway Commission v. Texas Ass'n of Steel Importers, Inc., to the English-language and employee-assignment questions, finding no job-related justification offered for requiring janitors to speak English, but finding legitimate, work-related justification for requiring the county's approval of specific security or janitorial employee assignments, given the county's interest (citing Anderson v. Wood on the duty to keep public buildings habitable and safe) in protecting the operation of its criminal justice offices. The opinion also noted security guard companies and their personnel are separately subject to licensing, commissioning, or registration requirements under the state's private security regulation statute, and that requiring compliance with that licensing scheme would be directly related to the work.

Citations

Statutes:

• V.T.C.S. art. 5159a, § 2 (public works prevailing wage determination requirement)
• V.T.C.S. art. 5159d (Texas minimum wage law)
• Tex. Local Gov't Code § 262.022(4) (definition of "item" including services, County Purchasing Act)
• Tex. Local Gov't Code § 262.025(b)(1) (competitive bidding notice and specification requirements)
• Tex. Local Gov't Code § 291.001 (commissioners court duty to provide public buildings)
• Tex. Gov't Code § 41.107 (commissioners court authority to provide offices for county/district attorneys)
• 29 U.S.C. § 206 (federal minimum wage law)
• Tex. Const. art. V, § 21 (duty of prosecuting attorneys, referenced)
• V.T.C.S. art. 4413(29bb), §§ 13(a), 15(a)(9), 19(a), (g), 32(a), 33(c) (private security guard company licensing, commissioning, and registration requirements)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Childress County v. State, 92 S.W.2d 1011 (Tex. 1936)
• Texas Highway Comm'n v. Texas Ass'n of Steel Importers, Inc., 372 S.W.2d 525 (Tex. 1963)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1215
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1215.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

JIM MATTOX
ATTORNEY GENERAL

August 31, 1990

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-1215

Re: Whether a commissioners court may prescribe a prevailing wage for certain contracts, and related questions (RQ-1977)

Dear Mr. Driscoll:

You ask the following three questions about county contracting practices:

May Commissioners Court prescribe a prevailing wage for public works and non-public works contracts?

May Commissioners Court require contractors and subcontractors performing such contracts to provide their employees with certain fringe benefits (i.e., health and hospitalization insurance and vacation leave)?

May the Commissioners Court require an independent contractor to hire personnel who understand and speak English and whose assignment is subject to the approval of the County?

While you ask whether a commissioners court may prescribe a prevailing wage for public works contracts, we believe that article 5159a, V.T.C.S., requires the court to determine and pay prevailing wages on public works contracts. That statute reads, in pertinent part, as follows:

The public body awarding any contract for public work on behalf of . . . any county . . . shall ascertain the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft or type of workman or mechanic needed to execute the contract, and shall specify in the call for bids for said contract, and in the contract itself, what the general prevailing rate of per diem wages in the said locality is for each craft or type of workman needed to execute the contract. . . .

V.T.C.S. art. 5159a, § 2.

The plain language of that provision requires the commissioners court to ascertain prevailing wage rates for public works contracts. The provision also requires the county to specify those rates both in the call for bids and in the contract itself. Attorney General Opinion JM-329 (1985).

All county contracts requiring an expenditure of more than $10,000 are governed by the County Purchasing Act, now codified at subchapter C of chapter 262 of the Local Government Code. That subchapter requires that such contracts be submitted to competitive bidding but does not require the payment of local prevailing wages.

Counties may do only those things that they are authorized to do, either expressly or by necessary implication. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Childress County v. State, 92 S.W.2d 1011 (Tex. 1936). While the legislature has required that counties determine and pay local prevailing wage rates on public works contracts, it has made no such requirement in regard to other contracts. As noted above, chapter 262 does not require the payment of prevailing wages generally. Nor do we find any other statute that expressly requires or necessarily implies that the commissioners court establish prevailing wage rates for contracts other than public works contracts.

We believe, in fact, that prescription of prevailing wages relative to contracts outside the scope of article 5159a would contravene the express intent behind chapter 262 that contracts be permitted on the basis of competitive bids. Of course, independent contractors may still be subject to other state and federal laws governing wages. See, 29 U.S.C. § 206 (federal minimum wage law); V.T.C.S. art. 5159d (Texas minimum wage law).

You next ask about fringe benefits. This office has recently reaffirmed a 1974 opinion that considered article 5159a and concluded that "a public body may properly consider 'fringe benefits' in determining a prevailing wage rate for a particular locale." Attorney General Opinions JM-1164 (1990), H-350 (1974). Thus, we believe that if the commissioners court determines that local prevailing practice includes certain fringe benefits, those same benefits must be included in public works contracts governed by article 5159a.

With regard to your question concerning fringe benefits for non-public work, a specification requiring the adoption thereof must be directly related to the work performed. JM-1213 (1990).

Next, you ask about the county's authority to impose an English language requirement on the employees of an independent contractor who provides security personnel or janitorial services to the county. Further, you ask whether the county can approve the assignment of individual employees.

Section 262.025 of the Local Government Code requires publication of notice of the call for bids, including "the specifications describing the item to be purchased." Local Gov't Code § 262.025(b)(1). The term "item" in that statute includes a service. Local Gov't Code § 262.022(4). Thus, the competitive bidding provisions of chapter 262 apply to contracts for the services of security guards and janitors.

The leading Texas competitive bidding case is Texas Highway Comm'n v. Texas Ass'n of Steel Importers, Inc., 372 S.W.2d 525 (Tex. 1963). In that opinion, the Supreme Court gave distinct, emphatic instruction on the manner of drafting contract specifications to avoid the possibility of limiting competition:

Matters of quality should be fixed by quality specifications and not by proscriptions as to localities of manufacture or fabrication . . . . Why should not the term, "steel, free from rust" be used instead of "domestic steel" if that is the quality that is desired in re-enforcing materials used in highway construction?

Id. at 529. The court found that the highway commission rule requiring domestic steel violated the mandate of the competitive bidding statute.

Whether a certain specification is directly related to the work to be done is a fact question. You do not suggest any reason, however, that any or all janitors need to be proficient in English, or any other language. The communications skills required of security guards must be specific job requirements. See also Attorney General Opinions JM-881 (1988) (specification that 25% of work must be performed by contractor's employees violates statute); MW-139 (1980) (specification that automobiles be domestically manufactured violates statute); H-1219 (1978) (specification that printing be done by union printers violates statute); H-1086 (1977) (limiting award on basis of bidder's domicile violates statute).

Your final concern, regarding the county's approval of the assignment of employees to specific work areas, arises from an incident wherein an employee of a contractor was assigned to clean the office of an assistant district attorney who was assigned to prosecute the employee in a criminal case. We believe that the county has the authority to ensure the efficient operation of its criminal justice system. See, e.g., Local Gov't Code § 291.001 (duty of commissioners court to provide public buildings); Gov't Code § 41.107 (authority for commissioners court to provide offices for county and district attorneys); Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941) (duty to provide public buildings includes duty to keep them habitable); see also, Tex. Const. art. V, § 21; Derd . Alant, 303 S.W.2d 646 (Tex. Civ. App. - San Antonio 1957, no writ) (duty of prosecuting attorneys to investigate and prosecute all violations of criminal laws).

The proposed janitorial contract, which was filed with your request, contains a provision requiring the contractor, prior to starting the work, to submit to the county's contracting officer (or his representative) "a plan on which all daily cleaning assignments are identified to each employee (position), including schedule items and policing." Another provision allows the contracting officer's representative, in the exercise of reasonable discretion, to object to a particular employee and have that individual reassigned and replaced. We believe that these provisions are reasonably related to the quality of the work to be done and provide a reasonable method of safeguarding the operation of the county's criminal justice system.

Finally and in specific regard to security personnel, we note that a "guard company" or a "security services contractor" must be licensed under section 13(a) of article 4413(29bb), V.T.C.S. Security personnel of a guard company must be commissioned if they carry firearms, id, § 19(a), or registered if they do not, id, § 32(a). Both types of employees and the company owner are subject to the approval of local law enforcement authorities. Id. §§ 15(a)(9), 19(g), 33(c). A specification that a bidder and its employees be licensed, certified, or registered under that act would be directly related to the work to be done and may well satisfy the security concerns of the prosecuting attorneys.

SUMMARY

A commissioners court must determine, require and pay local prevailing wage rates, including fringe benefits, on public works contracts. They may not require the payment of local prevailing wages on other contracts. Contract specifications must be directly related to the work to be done.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General