Untitled Texas Attorney General Opinion

The Attorney General of Texas
June 12, 1978
JOHN L. HILL
Attorney General

Honorable Chris Victor Semos Opinion No. H- 1182
Chairman
House Committee on Business Re: Conflicts between article
& Industry 2368a and city charters.
State Capitol
Austin, Texas 787ll

Dear Representative Semos:

You ask whether home rule cities are subject to the provisions of article
5160, V.T.C.S., relating to contractor’s surety bonds for public works. Article
5160 provides in part:

A. Any person . . . entering into a formal contract
in excess of $25,000 with . . . any municipality of this
State, department, board or agency thereof . . . shall
be required before commencing such work to execute
to the aforementioned governmental authority or
authorities, as the case may be, the statutory bonds as
hereinafter prescribed, but no governmental authority
may require a bond if the contract does not exceed
the sum of $25,000.

(Emphasis added). The underlined language was added in 1977. -See Acts 1977,
65th Leg., ch. 809, at 2027.

The article 5160 provisions on construction bonds are incorporated by
reference into article 2368a, which deals with contracts entered into by cities
and counties. This statute defines “city” to include:

all cities and towns incorporated under General or
Special Laws, and all cities operating under charter
adopted under the provisions of Article 11, Section 5, of
the Constitution of Texas, unless especially excepted
under the terms of this Act.

See. 1. Section 2 provides in part:

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Honorable Chris Victor Semos - Page 2 (H-1182 1

if the contract is for the construction of public works, then
the successful bidder shall be required to give a good and
sufficient bond in the full amount of the contract price, for
the faithful performance of such contract, executed by some
surety company authorized to ado business in this state in
accordance with the provisions of Article 5160, Revised
Statutes of 1925, and the amendments thereto.

It is well established that one statute may incorporate another by reference.
Trimmier v. Carlton, 296 SW. 1070 (Tex. 1927); Western Casualty & Surety
Company v. Young, 339 S.W.2d 277 (Tex. Civ. App. - Beaumont 1960, writ ref’d).
Subsequent amendments to the incorporated statute may also be included in the
adopting act, if the language of the adopting act shows a clear legislative intent to
include them. In Trimmier v. Carlton, 296 S.W. 1070 (Tex. 1927), the Supreme Court
determined that the adoption by reference of a statute “and amendments thereto”
included future amendments. -Compare St. Paul Mercury Insurance Company v.
Billiot. 342 S.W.2d 161 (Tex. Civ. ADD. - Beaumont 1960. writ ref’d) (incorooration
ofcle of “Revised Civil Statute$‘of Texas, 1925, as amended” dfd~not evidence
legislative intent to include future changes). In our opinion, the 1977 amendment to
article 5160 prohibiting bonds for projects under $25,000 in value has been
incorporated into article 2368a, section 2.

Article 2368a, section 2, also contains the following provision:

Provisions in reference to . . . the furnishing of surety
bonds by contractors and the manner of letting of contracts,
as contained in the charter of a city, if in conflict with the
provisions of this Act, shall be followed in such city
notwithstanding any other provisions of this Act.

Home rule cities must follow their charter provisions on the furnishing of surety
bonds, in the event they conflict with article 2368a. In our opinion, the article 5160
provision prohibiting construction bonds on projects under $25,000 has become a
provision of ,article 2368a. Consequently, home rule cities are directed by article
2368a to follow their own charter provisions in the event that they conflict with
article 5160.
SUMMARY

Article 2368a incorporates by reference the provisions of
article 5160 and amendments thereto. Home rule cities shall
follow their own charter provisions on construction bonds in
the event that they conflict with the provisions of article
5160 as incorporated by 2368a.

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Very truly yours,

Attorney General of Texas

APPROVED:

C. ROBERT HEATH, Chairman
Opinion Committee

jsn

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