OFFICE   OF THE Al7OWNEY         GENERAL    OF TEXAS
                              AUBTIN




Sonorablo D. C. Greer
s t3te BiGhVmy En&ncer
Tosas %I$Iw~~ Departnent
Austin, Texns

Dear Sir:




                                                 ths,,xaderal'




     whrhdle6: in $ct    $,-on ,I"sdG:ral funds If. the', rulss
     or re&:tioss     of ths inter&ted       Federal Azsncy
     requIrea .or"pez5+,ittcd &og%sr hours, hoy;ev&r, upon
     pzojec~s fiosmed     wholly Trot State :'unds c'e have
     conscientiously   observed all of ths '~roviaions in
     tke act.    Since the 'passage of .ths Fair Labor
     Standards Act of 19.3 (U.:?.C.A.,TItls        ZS,, Sets;
     201 to 219), we hzve not attenpted to decide which
     law governsd but have Included In all contracts             a
     notIce to contractors      that all applicable     laws per-
     taining to labor ars a part of such contract.              It
.‘,
      I




          Esnorabls   D. C. Gresr,   ?azS 2


                now aeezs to be nscsesary to deterrlns which
                of ths acts, the Stats or the Federal, governs
                the working hours of labor on jobs In which ths
                Federal Govsrnuent doss not participate, and ws
                would apprsoiate receiving your advice in this
                IclBtter.V*
                    That portion of Article  1580 of the Texas Penal
          Code which Is applicable to the situation  at hand reads as
          r0ii0v~3:

                       “All coatracts    nads by or on behalf of
                the Stste of Texas, or by or on behalf of any
                county, nunicipslity       or other legal or politi-
                cal aubdIvIsIon of the Stats, with any cor;or-
                ation, Fezson or association        of persons for
                performncc     of any work, shall be deem8 and
                considered as mde upon the basis of eight (C)
                hours constItutInS      a day’s vcork. Tho tize con-
                sued by the laborer In, Going to and returning
                from the place of work shall not be considered
                as part of the hours of -iroxk. It shall be un-
                13.~~33~1 for any corasration,     p3rson or association
                of pezaoaa having a coxtract        T:iIth the Stats or
                any political     subdivision    thereof’, to require
                or per&t any such labozors,         workzen, or mchon-
                Its to work aoxe than sISht (8) houra per calcu-
                dar day In doing such work, except In cases of
                siergeacy,    v:hich nay arice In tinsa of war’, or
                ir cajcs    whsre it zay become necessary to work
                sore than eight (8) hours per calendar day for
                the protection     of property,    humn life or the
                necessity    of housing Imates       of public Institu-
                tions IO case of firs or dsotruction          by ths sls-
                rants or In cases where tha total nmber of hours
                per week required or lerzitted         of any such. la-
                borer, wortian or rochanic , engaged on vrork
                financed In whole or In part by the Fcdsral Gov-
                 ermsnt or any agency thereof,         does not excesd
                 the nu=lber of houra per week allo:rod by any reg-
                 ulation of the Yederal Governusnt or any agsncy
                 thereof.    In such e~srgencies      tbe laboxsrs,   work-
                Len, or nechanics 30 saployed and working to ex-
                 ceed eight (9) houro per calendar day shall be
                 paid on the basis of sight (8) hours constItutln&
                 a day’s work. . .*
Eonorable     D. C. Greer,   Page 3


              The following definition     Is from Section    203,
Ch. 8,    Title 29, U. S. C. A.:

                "(d)    **YizployerV Includes any person act-
        Ina directly      or Indirsctly    In the interest  of
        an mployer       In rslatlon    to au employee but
        shall not include the Uaited States or any state
        or poiitical      subdivision    of a state,  or any la-
        bor organization       (other than whsn acting as an
        enplogor),      or anyone acting In the capacity of
        officer      or agent of such labor organIzatIonrW
          You will note that ths Texas statute is directly
In point.  Xoreover,    the yederal Act spscIfically     excepts
a state or a political    subaivieion   of a state from the require-
ncnts of the Fair Labor Standnrds Act.       It Is the opInIon
of this departmnt     that the grov:sions   of Article   1500,
Texas penal Code must be obesrved and soforced,        and that
It Is not withinthe     pov:er or provinoe of the IiIghway Ds-
partmnt to waive such provisions.


                                          Yours very truly




                                                        Assistant

iG:ew