Texas Attorney General Opinion: JM-1215 Page: 2 of 5
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Honorable Mike Driscoll - Page 2 (JM-1215)
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 Govern-
mqnt 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 implica-
tion. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948);
Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Childress
County v. Stat?, 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 properlyp. 6427
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-1215, text, August 31, 1990; (https://texashistory.unt.edu/ark:/67531/metapth273653/m1/2/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.