.
OFFICE OF THE ARORNEY GENERAL OF TEXAS
AUSTIN.
Rcnoreble C. R. PElller, Commlsaicner
Tezas Jnemgloyment Compensation
Austin, Texas
Doer Sir:
which reads as follows:
“1s the regulation c.,uotod ,a valid one
under the Constitution of Texas’?”
After carefully considering the above letter, we
concluded that the only constitutional question involved
?:herein is whether the LeCislaturo onn validly authorize
the Texas Unemployment Corzpensation Commission to derine
n~‘;eek” es is authorized in Article 5221b-17(p), supra.
__._-- - -
Honorable C. R. killer, Page 2
The definition of *week” becomes important in
determining if and when an employer beoomes an employer
subject to the provisions ot the Unemployment Compensation
Act, same beinS Artiole !3221b, Chapter 14 of Title 83,
Vernon’s Annotated Civil Statutes. Seotion (i) (1) of.
Artiole 5221b-17, Vernonle Annotated Civil Statutes, read6
as r0u0ws:
“(f) *Employer* means
“( 1) Any employing unit which for some
portion of a day but not neoessarily sizmultan-
eously, In each of twenty (20) different weeks,
whether or not such weeks are or were con-
secutlv’e, within either the cu.-rent or the
preceding calendar year, has oz bad in employ-
ment eight (8) or more individuals (irrespective
of whether the same individuala are or were
employed in each such day) :”
To illustrate the point lr.volved, suppose an
employer employs eight persons for eighteen calendar weeks.
At the end of the eighteenth week orie employee is dismissed.
At a later date, but within the same calendar year, the em-
ployer employs a person who works fcr seven days, beeinning
amploymant on Wednesday and terminating employment on the
follo~wing Tuesday. Under the provision8 of Rule No. 37,
promulgated by the Commission by virtue of Article 5221b-17(p),
the seven days work constitutes employment during parts oi two
different weeks rather than one entire week’s employment, and,
therefore, the employer is subjeot to the provisions-oil the._:
Unemployrient Compensation Act as provided in Seotlon (f ) (1)
of Article 5221b-17, supra,
The legislative power of the State is vested in
the LeSislature by Artiole 2, Sect102 1 of the Constitution
of Texas and same reads as follows:
“The powers of the Government of the
State of Texas shall be divided into three
distinct departments each of which shall be
confided to a separate body of SiaSistraOy,
to wit: Those whioh are Legisletive to one;
those whioh are Exeoutive to antther, and those
which are Judicial to another; end no per-
son, or colleotlon or pcraons, being of one
of these departments, shall exercise any
power properly attaohed’to either of the
others, except in the instances herein ex-
pressly permitted,”
Xonornble C. R. Killer, Page 3
Generally speaking, the Legislature cannot delegatr '
the power of making laws to any other body. Green v. City
oft Amarillo, 244 S. W. 241 (Affirmed 267 2. '1. 702). This
doctrine is Bet forth in 16 Teze8 Law Review 20 which reade,
in part, a8 r0lhi8:
"The constitutional provisions which are
held to forbid delegation of pcwer are those
which set up the separation of powers. Gov em-
mental power8 are usually divided among the
executive, ,judloial, nnd legislative branches.
The separation of powers e8tZibliBhed by’the
Federal'Cons tituti on operates es on implied
llmitotion; that 18, slnae legislative power
is vested in Congress, the presumption or
implicetion is that such power may not be given
to one of the other branches. In the Texas.
Constitution, however, this separation of
power8 is not left to lmpllcatlon; It is
specirically~proviaed that no one of the three
branches may'exarcise powers properly belong-
ing to the other. The effect Of this SePara%&On
.6f goviers 88 a limitation on governmental
action 18 felt more forcibly by the legislative
body than by the other branches, beCEu8e it Is
the polioyforming agency or the government
and has been aseigned the duty Of allocating
the function8 of government undistributed
by the Constitution.
"A doctrine whi'ch has arisen a8 a sort
of buttress to, the separation or powers and
which hi8 assumed'a POSitiOn Of primary import-
ance in Am-rioan oonstltutional law 18 that
delegated power may not be redelegated. One
of the earliest and best expression8 Of the
Idea is found in Looker
"*The legislative can:not trans-
rer the power of making la-x8 to
any other band8 for, it being but
a delegated power from the People,
they who have it oannot Pass it
over to others.**
Rotwithatanding, it ha8 been a long established
fact that the Legislature Possesses many Power8 whlih maY ba
Eonorable C. R. :.filler, Page 4
exercised by it direotly or through some othor designated
aCcncy or body. In Burges8 v. American Rio Crande Land
eCIrrigation Co., 295 S. W. 649 (Wit refused), the court
said:
"The Legislature cannot delegate Its
pcwer to amke laws, nor can it clothe any
other agency of government with Judicial power
except csurts. That fundamental rule, however,
mu-t have some apparent, though not real,
exceptions. The customs of the ages have
given the Legislature the power to create
agencies to carry out the legislative intent
and administer detail8 in matters conducting
to the prosperity end Li8efUbISS.3 which could
not be fld.miniBtered, for obvious reasons, by
the Legislature. To such agencies the Leg-
lslsture doss not delegats the ?ower held by
it alone to enact laws but clothe8 them with
the powers of administration of laws created
by the Legislature. . . ."
The Legislature provlded that the word "'week' means
such period of ssvsn.(7) consecutive calendar Gays as the
Conmission may prescribe." The Legislature undoubtedly
realize? tGt the Commission, after n long and careful study
of the em?loyr?ent 4tutlon in Texas, would be in a better
position to determine what particular seven consecutive days
would best ocnstitute a Week" to er:?ectively carry out the
purposes of the Une:%ploynent Compensation Act in Texas.
The Legislature recognized that in certain situations
It might be necessary, in order to pzoperly administer the Un-
employment Compensation L&ws of TeXz:J, that a Week" should
constitute some particular seven con:3eoutive days. Therefore,
this natter was expressly given to t::e Cormission to decide.
It cannot be sala that the Legislatuze did not set a bnsio
standard or to provide a definite po:icy or rule of action
ror the Comnission to r0ii0w. Artic1.e 5221b-17( p), supra,
provides that a week must contain seven days and, further,
that the particular seven day8 must be consecutive. ?he Com-
mission is given no discretion in the, matter except designa-
ting the partioular 8even days. The Commission cannot
declare a we-k to be six day8 nor can it declare that a week
shall constitute eight days. Neither can the Commission
enact a rule to the effeot that a week shall conetitute
seven pertioular day8 which are not in OOU8eOUtiVe order.
Scnorable C. R. Killer, Pace 5
For the rsascns herein stated, we are of the opinion.
that neither Article 5221b-17(p), tupra, &living the TeXa8
Gilenploy.3nt Cozpensatlon Cormlssicn the authority to define
*I:':Qek , " nor Wgulation No. 37 of the Comlseion whioh derines
"'Yeeic," Is invalid 8s being an unlawrul delegation or ex-
eroiso 0r legislntive authorrity.
Yours very truly
ATTORNEY
GEX?XALOF TX&3
Glenn R. Lewis
Assistant
BY XL-
Lee Shoptaw
LS:eaw