Could Houston use a weighted-average wage study instead of determining the general prevailing wage for each public-works craft?

Texas AG Opinion JM-329: Houston Prevailing Wage Method

Plain-English summary

A Texas legislator questioned Houston's method for setting prevailing wages on city public-works construction. The city planned to use a contractor's study based on "a weighted average rather than determining a general prevailing wage rate." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Article 5159a required public bodies to pay at least "the general prevailing rate of per diem wages" for similar work in the locality. It also required the contracting public body to determine the rate for each craft or type of worker needed for the project. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

JM-329 emphasized the statute's worker-protection purpose. Prior cases described the law as protecting workers from being required to accept less than the wages prevailing for the same class and character of local work. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

The statute did not prescribe a single calculation formula, but it required a method that demonstrated compliance with the prevailing-wage standard. The opinion stated that the governmental entity had to determine "what actual wage rate is predominant for each craft." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

JM-329 treated the request as assuming that weighted average and prevailing wage were different standards. On that assumption, it concluded that using the weighted-average standard instead of the prevailing-wage standard failed to comply with article 5159a. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Currency note

This opinion was issued in 1985. 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, deadline, or remedy mentioned here.

Common questions

What rate did article 5159a require?

It required the general prevailing per diem wage for work of a similar character in the locality where the public work would be performed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Did the city have to set one rate for every construction worker?

No. Section 2 required a prevailing rate "for each craft or type of workman or mechanic" needed to perform the contract. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Did JM-329 prescribe a precise statistical formula?

No. It said Texas law did not set out a methodology, but whatever method the city adopted had to demonstrate compliance with the statutory prevailing-wage standard. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Why was a weighted average potentially invalid?

The question assumed that a weighted average and the predominant prevailing wage were different measures. Under that assumption, JM-329 said adopting the former instead of the latter did not comply. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

How had the wage rate to be stated?

Section 4 made it mandatory for the public body to state the prevailing wage "as a sum certain, in dollars and cents." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Background and statutory framework

Sections 1 and 2 of article 5159a required public bodies to pay and determine prevailing local rates for public works. Section 4 made the public body's decision final but still required a dollar-and-cent rate and allowed employers to pay more. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

The opinion linked the Texas statute to the federal Davis-Bacon Act and quoted the 1933 emergency clause describing depressed wages and the lack of adequate protection for public-works laborers and mechanics. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Attorney General Opinion O-2059 had read the statute as requiring the governing body to ascertain prevailing wage rates for the respective trades. JM-329 restated that duty as finding the actual predominant wage for each local craft. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Citations and references

• V.T.C.S. article 5159a, sections 1, 2, 4, and 7
• Davis-Bacon Act, 40 U.S.C. sections 276a to 276a-5
• Southern Prison Co. v. Rennels, 110 S.W.2d 606, 609 (Tex. Civ. App. - Amarillo 1937, writ dism'd)
• Texas Highway Commission v. El Paso Building & Construction Trades Council, 234 S.W.2d 857 (Tex. 1950)
• Cullipher v. Weatherby-Godbe Construction Co., Inc., 570 S.W.2d 161, 164 (Tex. Civ. App. - Texarkana 1978, writ dism'd)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0329
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0329.pdf

Original opinion text

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

The Attorney General of Texas

July 1, 1985

Honorable Lloyd Criss
Chairman
Committee on Labor and Employment Relations
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-329

Re: Authority of a city to establish prevailing wage rates under article 5159a, V.T.C.S.

Dear Representative Criss:

You have inquired about the propriety of the procedures being used by the city of Houston to determine the prevailing wage rates to be paid to workers engaged in the construction of public works for that city. You state that

obviously, the establishment of a prevailing wage rate for building construction by the city of Houston will dramatically affect the livelihood of many working people in the Harris County area.

It is my understanding that the city of Houston city council intends to adopt an alleged wage rate study recently completed by an independent contractor to the city in the very near future. The basis for the findings and conclusions of this alleged study is a weighted average rather than determining a general prevailing wage rate.

My concern relates to the methods used by the city's agent to establish such a prevailing wage rate when tested by the unambiguous proscriptions and statutory directives of article 5159a, V.T.C.S.

The pertinent parts of article 5159a read as follows:

Section 1. Not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed . . . shall be paid to all laborers, workmen and mechanics employed by or on behalf of the State of Texas, or by or on behalf of any county, city and county, city, town, district or other political subdivision of the State, engaged in the construction of public works. . . .

Sec. 2. The public body awarding any contract for public work . . . or otherwise undertaking any public work, 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. . . .

. . . .

Sec. 4. . . . The term "general prevailing rate of per diem wages" shall be the rate determined upon as such rate by the public body awarding the contract, or authorizing the work, whose decision in the matter shall be final. It is mandatory that the public body state such prevailing wage as a sum certain, in dollars and cents. Nothing in this Act, however, shall 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 less than the prevailing wages paid . . . for the same class and character of work.

Southern Prison Co. v. Rennels, 110 S.W.2d 606, 609 (Tex. Civ. App. - Amarillo 1937, writ dism'd). This conclusion was quoted as authoritative by the Texas Supreme Court in Texas Highway Commission v. El Paso Building & Construction Trades Council, 234 S.W.2d 857 (Tex. 1950), and has been recently reaffirmed in a case which reiterated that a primary objective of the statute was "to protect the workman from working at rates below the prevailing wages in the locality." Cullipher v. Weatherby-Godbe Construction Co., 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. §§276a to 276a-5 (1982)), upon which it was modeled, is clearly stated in the act's "emergency clause" as follows:

Sec. 7. The fact that there is no adequate law protecting laborers, workmen and mechanics engaged in doing and performing work on public works in Texas and its political subdivisions, and the further fact that many contractors are taking advantage of the present industrial and economic condition to beat down wages to a level far below that required to maintain a laborer, workman or mechanic in reasonable circumstances, and the further fact that this condition has created a social problem demanding the immediate attention of the legislative department of our State, create an emergency and an imperative public necessity. . . .

Acts 1933, 43rd Leg., ch. 65, §7, at 93. While the Texas law did not set out a methodology for the determination of the prevailing wage rates for the respective trades, this office very early held that it was the duty of the appropriate governing body "to ascertain the general prevailing wage rates" for the respective trades in the locality in question. Attorney General Opinion O-2059 (1944). This opinion simply restated the straightforward statutory directive to establish what is "the general prevailing rate" of pay for each particular craft and trade. The essence of this statutory mandate is 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 prevailing rate of per diem wages," 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 which demonstrates compliance with the "prevailing wage" standard. Your question implies that "prevailing wage" and "weighted average" constitute different standards. Assuming this is correct, if a city adopts a "weighted average" standard, in contrast to a "prevailing wage" standard, it has, in our view, failed to comply with the statute.

SUMMARY

A city is required by article 5159a, V.T.C.S., to pay "the general prevailing rate of per diem wages" in awarding a contract for public works construction.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Colin J. Carl & Rick Gilpin
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

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