The El Paso Court of Appeals has ruled that a lawsuit brought by Associated General Contractors of Texas and a local highway contractor against the El Paso County Commissioners Court may proceed.
Ricardo A. Samaniego, in his official capacity as County Judge; Carlos Leon, in his official capacity as a County Commissioner; David Stout, in his official capacity as a County Commissioner; Illiana Holguin, in her official capacity as a County Commissioner; and Carl L. Robinson, in his official capacity as a County Commissioner v. Associated General Contractors of Texas, Highway, Heavy, Utilities & Industrial Branch and A. Brothers Milling, LLC (No. 08-22-00029-CV; delivered March 27, 2023) over the commissioners court’s determination of the prevailing per diem wage rates for relevant classifications of trade or work for heavy/highway work in El Paso County for the year 2020. AGC filed a declaratory judgment action seeking declaratory and injunctive relief, as well as attorney’s fees, alleging that the commissioners court acted ultra vires when they adopted rates based on inaccurate, incomplete, and improper data. AGC sought a declaration that the rates were void and unenforceable and an injunction against the county enforcing the rates and prohibiting the county from entering into an agreement with other public entities allowing them to use the rates for public works contracts. Each of the commissioners filed a combined plea to the jurisdiction, which the trial court denied.
In an opinion by Justice Palafox, the court of appeals affirmed. AGC’s ultra vires claim required it “to ‘allege, and ultimately prove, that the [public] officer acted without legal authority or failed to perform a purely ministerial act.’” As SCOTX has held, an ultra vires claim may not be asserted if a government official has absolute discretion to act but only against an official with “some discretion to interpret and apply the law” who has allegedly acted outside that authority (citations omitted). Here the operative statutory grant of authority is § 2258.022(a), Government Code, which requires a political subdivision to determine the prevailing rate of per diem wages for public works projects in the locality by either: “(1) conducting a survey of wages received by classes of workers employed on projects of a character similar to the contract work, in the political subdivision in which the work is to be performed; or (2) by ‘using the prevailing wage rate as determined by the United States Department of Labor (DOL) in accordance with the Davis-Bacon Act . . .”
AGC argued that § 2258.022(a) gave the commissioners some discretion in the conduct of the required survey (they did not use the DOL rates) and exceeded their discretion in two ways: (1) they “collected incomplete and inaccurate data regarding the prevailing wage rates for heavy-highway workers performing work in El Paso County”; and (2) they “calculated the ‘prevailing’ wage rates of the various workers based on incomplete and improper data.” These allegations, the court concluded, asserted an ultra vires action within the subject matter jurisdiction of the trial court. The court then turned to the interpretation of § 2258.022(a) to determine whether the commissioners acted beyond their authority. While the court observed that the statute does not tell the commissioners precisely how to conduct the survey, it does tell them that the survey must reflect the prevailing rate of per diem wages of the relevant class for workers needed to execute the contract in the locality. Because the survey conducted by the commissioners allegedly did not survey all relevant of workers in El Paso County and relied on data from outside of El Paso County, the court concluded that AGC affirmatively pleaded a valid ultra vires claim.
In response to the commissioners’ assertion that the adopted rates were final and could not be challenged, the court responded that, according to SCOTX authority, “ultra vires acts made by public officials . . . ‘should not be considered acts of the state at all’” (citation omitted). After all, an ultra vires claim is “not an attempt to assert control over the state, but an attempt to reassert control of the state over one of its agents and enforce existing policy determinations” (citation omitted). The court of appeals affirmed the trial court’s denial of the commissioners’ plea to the jurisdiction and returned the case to the trial court.
We applaud TCJL member AGC for holding the commissioners’ feet to the fire and the court of appeals for not putting up with any funny business. Once again, for those willing to assert their rights, our judicial system works the right way far more often than not, even if it takes time, effort, and resources to make it so.
