- TEE ATTORNEY GENERAL
OF TEXAS
Honorable Chet Brooks Opinion No. JM-1164
Chairman
Health and Human Services Re: Inclusion of fringe bene-
Committee fits in calculating the pre-
Texas State Senate vailing wage under article
P. 0. Box 12068 5159a, V.T.C.S. (RQ-1857)
Austin, Texas 78711
Dear Senator Brooks:
You ask whether article 5159a, V.T.C.S., requires the
inclusion of fringe benefits in the calculation of the pre-
vailing wage. That article governs the payment of wages for
the construction of public works on behalf of the state or
its various political subdivisions. Section 1 provides in
part:
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, and not less than the general
prevailing rate of per diem wages for legal
holiday and overtime work, 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 sub-
division of the State, or any officer or
public body thereof, shall be deemed to be
employed upon public works . . . .
Section 4 of the article provides in part:
The term 'general prevailing rate of per diem
wages1 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.
In Attorney General Opinion H-350 (1974) this office
was asked about the permissibility of including fringe
benefits in the calculation of the prevailing wage. That
opinion noted that a governing body's determination fixing
the prevailing wage rate was final and not judicially
p. 6151
Honorable Chet Brooks - Page 2 (JM-1164)
reviewable. See Texas Hiahwav Comm'n v. El Paso Blda. &
co st .
-1 234 S.W.2d 857 (Tex. 1950). The
opinion concluded that 'a public body had discretion under
the statute to consider fringe benefits in determining a
prevailing wage rate.
You ask us to modify the holding of Attorney General
Opinion H-350 and to construe the statute to require the
inclusion of the value of fringe benefits in the
determination of the prevailing wage rate. you tell us that
this request is prompted by the current practice of the
University of Texas System to no longer include fringe
benefits in its wage table calculations for its construction
contracts in given localities.
In its response to your request, the University of
Texas System indicates that in those areas where union
contractors represented the prevailing work force in a given
locality, its wage tables included fringe benefits, because
the payment of fringe benefits is not prevailing practice in
those areas. In those areas where open-shop work represents
the prevailing work force, we understand that the University
System's wage tables do not include fringe benefits. Thus,
the University System’s wage tables appear to reflect the
prevailing practice in a given locality.1 Consequently,
your question does not accurately describe the practice as
described by the University of Texas System.
In our opinion, the inclusion of the value of fringe
benefits in a governmental body's determination of the
prevailing wage must be a matter for the governmental body.
If the entity determines that wages in a given locality for
similar work typically include fringe benefits, that factor
should be considered in the calculation. It would be incon-
sistent, in our opinion, to read the statute as requiring
the inclusion of fringe benefits when the prevailing
practice in the locality is otherwise. As indicated in the
brief filed by the University of Texas System, the inclusion
of fringe benefits in such a locality would compel the
contracting authority to pay wages at a rate that is higher
than the prevailing rate.
We note that several attempts to amend article 5159a to
expressly include fringe benefits have been unsuccessful.2
1. We accept the University System's description as
accurate, because this is a factual matter not appropriately
determined in the opinion process.
2. Legislation introduced in the 63rd, 64th, and 68th
(Footnote Continued)
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Honorable Chet Brooks - Page 3 (JM-1164)
.
While this fact alone does not preclude an interpretation
that fringe benefits are mandated by the current language,
it supports this office's earlier reading of the statute in
Attorney General Opinion H-350. We are not persuaded that
the University of Texas System's method of determining the
prevailing wage for a given locality is inconsistent with
article 5159a. Therefore, we decline to modify Attorney
General Opinion H-350. In our opinion, a governing body is
not required by article 5159a to include the value of fringe
benefits in its calculation of the prevailing wage in a
given locality. It is proper for the governing body to
include the value of fringe benefits in its calculation if
it determines that payment of fringe benefits is the pre-
vailing practice in the locality.
SUMMARY
A governing body is not required by article
5159a, V.T.C.S., to include the value of
fringe benefits in its calculation of the
prevailing wage in a given locality. L
-, - JIM MATTOX
Attorney General of Texas
MARY KELLER
First 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
(Footnote Continued)
Legislative Sessions would have amended article 5159a to
include fringe benefits in the rate of pay calculated under
that article. None of these amendments was adopted,
however. See S.B. 329, 63d Leg. (1973); H.B. 936, 63d Leg.
(1973); S.B. 804, 64th Leg. (1975); S.B. 1259 64th Leg.
7 (1975); S.B. 950, 68th Leg. (1983); H.B. 1399, 68th Leg.
(1983).
p. 6153