CHAPTER 2258. PREVAILING WAGE RATES

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, 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.