GOVERNMENT CODE

TITLE 10. GENERAL GOVERNMENT

SUBTITLE F. STATE AND LOCAL CONTRACTS AND FUND MANAGEMENT

CHAPTER 2258. PREVAILING WAGE RATES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 2258.001.  DEFINITIONS.  In this chapter:
(1)  "Locality in which the work is performed" means:
(A)  for a contract for a public work awarded by the state, the political subdivision of the state in which the public work is located:
(i)  which may include a county, municipality, county and municipality, or district, except as provided by Subparagraph (ii);  and
(ii)  which, in a municipality with a population of 500,000 or more, may only include the geographic limits of the municipality;  or
(B)  for a contract for a public work awarded by a political subdivision of the state, the geographical limits of the political subdivision.
(2)  "Public body" means a public body awarding a contract for a public work on behalf of the state or a political subdivision of the state.
(3)  "Worker" includes a laborer or mechanic.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.  Amended by Acts 2001, 77th Leg., ch. 1422, Sec. 14.04, eff. Sept. 1, 2001.

Sec. 2258.002.  APPLICABILITY OF CHAPTER TO PUBLIC WORKS.  (a)  This chapter applies only to the construction of a public work, including a building, highway, road, excavation, and repair work or other project development or improvement, paid for in whole or in part from public funds, without regard to whether the work is done under public supervision or direction.
(b)  This chapter does not apply to work done directly by a public utility company under an order of a public authority.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.003.  LIABILITY.  An officer, agent, or employee of a public body is not liable in a civil action for any act or omission implementing or enforcing this chapter unless the action was made in bad faith.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

SUBCHAPTER B. PAYMENT OF PREVAILING WAGE RATES

Sec. 2258.021.  RIGHT TO BE PAID PREVAILING WAGE RATES.  (a)  A worker employed on a public work by or on behalf of the state or a political subdivision of the state shall be paid:
(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;  and
(2)  not less than the general prevailing rate of per diem wages for legal holiday and overtime work.
(b)  Subsection (a) does not apply to maintenance work.
(c)  A worker is employed on a public work for the purposes of this section if the worker is employed by a contractor or subcontractor in the execution of a contract for the public work with the state, a political subdivision of the state, or any officer or public body of the state or a political subdivision of the state.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.  Amended by Acts 1997, 75th Leg., ch. 165, Sec. 18.01, eff. Sept. 1, 1997.

Sec. 2258.022.  DETERMINATION OF PREVAILING WAGE RATES.  (a)  For a contract for a public work awarded by a political subdivision of the state, the public body shall determine the general prevailing rate of per diem wages in the locality in which the public work is to be performed for each craft or type of worker needed to execute the contract and the prevailing rate for legal holiday and overtime work by:
(1)  conducting a survey of the wages received by classes of workers employed on projects of a character similar to the contract work in the political subdivision of the state in which the public work is to be performed;  or
(2)  using the prevailing wage rate as determined by the United States Department of Labor in accordance with the Davis-Bacon Act (40 U.S.C. Section 276a et seq.), and its subsequent amendments.
(b)  This subsection applies only to a public work located in a county bordering the United Mexican States or in a county adjacent to a county bordering the United Mexican States.  For a contract for a public work awarded by the state, the public body shall determine the general prevailing rate of per diem wages in the locality in which the public work is to be performed for each craft or type of worker needed to execute the contract and the prevailing rate for legal holiday and overtime work as follows.  The public body shall conduct a survey of the wages received by classes of workers employed on projects of a character similar to the contract work both statewide and in the political subdivision of the state in which the public work is to be performed.  The public body shall also consider the prevailing wage rate as determined by the United States Department of Labor in accordance with the Davis-Bacon Act (40 U.S.C. Section 276a et seq.), and its subsequent amendments, but only if the survey used to determine that rate was conducted within a three-year period preceding the date the public body calls for bids for the public work.  The public body shall determine the general prevailing rate of per diem wages in the locality based on the higher of:
(1)  the rate determined from the survey conducted in the political subdivision;
(2)  the arithmetic mean between the rate determined from the survey conducted in the political subdivision and the rate determined from the statewide survey;  and
(3)  if applicable, the arithmetic mean between the rate determined from the survey conducted in the political subdivision and the rate determined by the United States Department of Labor.
(c)  The public body shall determine the general prevailing rate of per diem wages as a sum certain, expressed in dollars and cents.
(d)  A public body shall specify in the call for bids for the contract and in the contract itself the wage rates determined under this section.
(e)  The public body's determination of the general prevailing rate of per diem wages is final.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.  Amended by Acts 1997, 75th Leg., ch. 165, Sec. 18.02, eff. Sept. 1, 1997;  Acts 2001, 77th Leg., ch. 1422, Sec. 14.05, eff. Sept. 1, 2001.
Amended by: 
Acts 2007, 80th Leg., R.S., Ch. 728 (H.B. 2625), Sec. 1, eff. September 1, 2007.

Sec. 2258.023.  PREVAILING WAGE RATES TO BE PAID BY CONTRACTOR AND SUBCONTRACTOR;  PENALTY.  (a)  The contractor who is awarded a contract by a public body or a subcontractor of the contractor shall pay not less than the rates determined under Section 2258.022 to a worker employed by it in the execution of the contract.
(b)  A contractor or subcontractor who violates this section shall pay to the state or a political subdivision of the state on whose behalf the contract is made, $60 for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in the contract.  A public body awarding a contract shall specify this penalty in the contract.
(c)  A contractor or subcontractor does not violate this section if a public body awarding a contract does not determine the prevailing wage rates and specify the rates in the contract as provided by Section 2258.022.
(d)  The public body shall use any money collected under this section to offset the costs incurred in the administration of this chapter.
(e)  A municipality is entitled to collect a penalty under this section only if the municipality has a population of more than 10,000.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.024.  RECORDS.  (a)  A contractor and subcontractor shall keep a record showing:
(1)  the name and occupation of each worker employed by the contractor or subcontractor in the construction of the public work;  and
(2)  the actual per diem wages paid to each worker.
(b)  The record shall be open at all reasonable hours to inspection by the officers and agents of the public body.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.025.  PAYMENT GREATER THAN PREVAILING RATE NOT PROHIBITED.  This chapter does not prohibit the payment to a worker employed on a public work an amount greater than the general prevailing rate of per diem wages.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.026.  RELIANCE ON CERTIFICATE OF SUBCONTRACTOR.  A contractor is entitled to rely on a certificate by a subcontractor regarding the payment of all sums due those working for the subcontractor until the contrary has been determined.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

SUBCHAPTER C. ENFORCEMENT;  CIVIL AND CRIMINAL PENALTIES

Sec. 2258.051.  DUTY OF PUBLIC BODY TO HEAR COMPLAINTS AND WITHHOLD PAYMENT.  A public body awarding a contract, and an agent or officer of the public body, shall:
(1)  take cognizance of complaints of all violations of this chapter committed in the execution of the contract;  and
(2)  withhold money forfeited or required to be withheld under this chapter from the payments to the contractor under the contract, except that the public body may not withhold money from other than the final payment without a determination by the public body that there is good cause to believe that the contractor has violated this chapter.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.052.  COMPLAINT;  INITIAL DETERMINATION.  (a)  On receipt of information, including a complaint by a worker, concerning an alleged violation of Section 2258.023 by a contractor or subcontractor, a public body shall make an initial determination as to whether good cause exists to believe that the violation occurred.
(b)  A public body must make its determination under Subsection (a) before the 31st day after the date the public body receives the information.
(c)  A public body shall notify in writing the contractor or subcontractor and any affected worker of its initial determination.
(d)  A public body shall retain any amount due under the contract pending a final determination of the violation.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.053.  ARBITRATION REQUIRED FOR UNRESOLVED ISSUE.  (a)  An issue relating to an alleged violation of Section 2258.023, including a penalty owed to a public body or an affected worker, shall be submitted to binding arbitration in accordance with the Texas General Arbitration Act (Article 224 et seq., Revised Statutes) if the contractor or subcontractor and any affected worker do not resolve the issue by agreement before the 15th day after the date the public body makes its initial determination under Section 2258.052.
(b)  If the persons required to arbitrate under this section do not agree on an arbitrator before the 11th day after the date that arbitration is required under Subsection (a), a district court shall appoint an arbitrator on the petition of any of the persons.
(c)  A public body is not a party in the arbitration.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.054.  ARBITRATION AWARD;  COSTS.  (a)  If an arbitrator determines that Section 2258.023 has been violated, the arbitrator shall assess and award against the contractor or subcontractor:
(1)  penalties as provided by Section 2258.023 and this section;  and
(2)  all amounts owed to the affected worker.
(b)  An arbitrator shall assess and award all reasonable costs, including the arbitrator's fee, against the party who does not prevail.  Costs may be assessed against the worker only if the arbitrator finds that the claim is frivolous.  If the arbitrator does not find that the claim is frivolous and does not make an award to the worker, costs are shared equally by the parties.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.055.  ARBITRATION DECISION AND AWARD FINAL.  The decision and award of the arbitrator is final and binding on all parties and may be enforced in any court of competent jurisdiction.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.056.  PAYMENT BY PUBLIC BODY TO WORKER;  ACTION TO RECOVER PAYMENT.  (a)  A public body shall use any amounts retained under this chapter to pay the worker the difference between the amount the worker received in wages for labor on the public work at the rate paid by the contractor or subcontractor and the amount the worker would have received at the general prevailing wage rate as provided in the arbitrator's award.
(b)  The public body may adopt rules, orders, or ordinances relating to the manner in which a reimbursement is made.
(c)  If the amounts retained by a public body under this chapter are not sufficient for the public body to pay the worker the full amount owed, the worker has a right of action against the contractor or subcontractor and the surety of the contractor or subcontractor to recover the amount owed, reasonable attorney's fees, and court costs.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.057.  WITHHOLDING BY CONTRACTOR.  (a)  A contractor may withhold from a subcontractor sufficient money to cover an amount withheld from the contractor by a public body because the subcontractor violated this chapter.
(b)  If the contractor has made a payment to the subcontractor, the contractor may withhold money from any future payments owed to the subcontractor or sue the subcontractor or the subcontractor's surety for the amount withheld from the contractor by a public body because of the subcontractor's violation.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.

Sec. 2258.058.  CRIMINAL OFFENSE.  (a)  An officer, agent, or representative of the state or of a political subdivision of the state commits an offense if the person wilfully violates or does not comply with a provision of this chapter.
(b)  A contractor or subcontractor of a public work under this chapter, or an agent or representative of the contractor or subcontractor, commits an offense if the person violates Section 2258.024.
(c)  An offense under this section is punishable by:
(1)  a fine not to exceed $500;
(2)  confinement in jail for a term not to exceed six months;  or
(3)  both a fine and confinement.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.49(a), eff. Sept. 1, 1995.