Texas Attorney General Opinion: GA-1090 Page: 2 of 4
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The Honorable Craig Watkins - Page 2
expressly authorize a county to require higher wages in its solicitation for proposals under section
262.030. See TEX. Loc. Gov'T CODE ANN. 262.030 (West Supp. 2014). You first ask whether
section 62.0515(c) of the Labor Code supplies such express authorization. Request Letter at 1.
Chapter 62 of the Labor Code requires employers to pay employees at least the minimum
wage established under the Fair Labor Standards Act of 1938. TEX. LAB. CODE ANN. 62.051
(West 2006). Section 62.0515 provides that this minimum wage requirement "supersedes a wage
established in an ordinance, order, or charter provision governing wages in private employment,
other than wages under a public contract," except as otherwise provided. Id. 62.0515(a). Section
62.0515 does not apply "to a minimum wage established by a governmental entity that applies to a
contract . . . entered into by a governmental entity and a private entity." Id. 62.0515(c). A
private entity that enters into such a contract and agrees to comply with a minimum wage
established by the governmental entity "is subject to the terms of that contract." Id. You contend
that this enforcement provision "expressly authorizes a county to solicit and evaluate competitive
proposals based upon a private entity's agreement to pay its workers more than the state-mandated
minimum wage." Request Letter at 3.
Section 62.0515 acknowledges other statutory schemes through which the Legislature has
authorized a deviation from the state minimum wage requirement. See, e.g., TEX. Gov'T CODE
ANN. 2258.021-.022 (West 2008) (requiring that public works construction employees be paid at
least the general prevailing rate of per diem wages in the locality). Section 62.0515 is applicable in
situations in which the Legislature has specifically authorized such a departure. But section
62.0515 does not itself provide an explicit grant of authority for a county to require a contractor to
pay its workers a higher wage.4 Other provisions of the Act suggest that when the Legislature
intends to authorize a county to require bidders to comply with a specific requirement, it knows how
to do so. See, e.g., TEX. Loc. Gov'T CODE ANN. 262.025(d) (West Supp. 2014) (authorizing
certain commissioners courts to "require that a minimum of 25 percent of the work be performed by
the bidder"), 262.027(f) (permitting commissioners to "condition acceptance of a bid on compliance
with a requirement for attendance at a mandatory pre-bid conference under Section 262.0256"); see
also FM Props. Operating Co. v. City ofAustin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on the
principle of statutory construction that the Legislature knows how to enact a law effectuating its
alternative competitive proposal procedure "is in the best interest of the county." TEX. Loc. Gov'T CODE ANN.
262.030(d) (West Supp. 2014).
3For purposes of section 62.0515, the term "governmental entity" includes a county. TEX. LAB. CODE ANN.
62.0515(d) (West 2006).
41n an analogous situation, this office considered whether a school district could require outside contractors to
pay their workers a higher wage than was otherwise mandated by a prevailing wage statute. Sec Tex. Att'y Gen. Op.
No. JC-0011 (1999) (construing chapter 2258 of the Government Code, applicable to public works construction
contracts). Although the statute provided that the payment of higher wages to a worker employed on a public work was
not prohibited, this office nonetheless concluded that the statute did not expressly authorize the school district to require
a contractor to pay a higher wage. Id. at 3.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-1090, text, December 1, 2014; (https://texashistory.unt.edu/ark:/67531/metapth1051023/m1/2/: accessed September 18, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.