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Legal Memorandum: Unconstitutional Delegation of Legislative Power

Issue: In a Texas case, whether the state prevailing wage statute constituted an unconstitutional delegation of legislative power?

Area of Law: Employee Law, Government Claims
Keywords: Unconstitutional delegation of legislative power; Prevailing wage statute
Jurisdiction: California, Massachusetts, Texas
Cited Cases: 314 A.2d 361; 654 N.Y.S.2d 92; 807 S.W.2d 894; 229 N.W.2d 172; 463 N.E.2d 1300; 361 P.2d 247; 568 S.W.2d 391; 700 P.2d 184; 696 S.W.2d 648; 546 N.E.2d 367
Cited Statutes: Tex. Loc. Gov't Code 174.021, § 174.252, 174.252(a), 174.252(b)
Date: 12/01/2006

A portion of the controlling statute, Tex. Loc. Gov’t Code § 174.252, provides for the district court’s intervention in a dispute between the public employer and association of public employees. 

If the court finds that the public employer has violated Section 174.021, the court shall:

(1) order the public employer to make the affected employees whole as to the employees’ past losses;

(2) declare the compensation or other conditions of employment required by Section 174.021 for the period, not to exceed one year, as to which the parties are bargaining; and

(3) award the association reasonable attorney’s fees.

Tex. Loc. Gov’t Code § 174.252(b).

Such actions on the part of the district court may occur, according to the statute, only after the labor association has requested arbitration pursuant to § 174.021, and the employer has refused to engage in arbitration.  Id., § 174.252(a).  Similarly, if the employer has refused to engage in a requested arbitration, the court “may enforce the requirements of Section 174.021 as to any unsettled issue relating to compensation or other conditions of employment of . . . police officers.”  Id.  Section 174.021 expressly requires public employers of police officers to provide them

with compensation and other conditions of employment that are:

(1) substantially equal to compensation and other conditions of employment that prevail in comparable employment in the private sector; and

(2) based on prevailing private sector compensation and conditions of employment in the labor market area in […]

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