DAN MORALES 

ATTORXGENERAL ‘EI’ 

4Bffice rf &e &Ittornep 

%tate of ,Qexafl 

July 12.1993 

@?knetal 

Honorable David H. Cain 

chair 

Committ~onTmnspoztation 

Texas House ofRqmxntatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

IkURcprrrentativeC8bl: 

opinion No. DIM-234 

ltlx constructionofrecentmnwdmwtsto 

section 106.001(c)(2) of the Cii Practice and 

Runedies code regding a mlmicipalityJs 

progmm to increase participation by minority 

business enterprises in public contract awards and 

dated questions (RQ-5 16) 

You ask several questions about subsection (c) of section 106.001 of the Cii 

Practice and Remedies Code. Section 106.001 generally prohibits an officer or employee 

ofthe~eorapoliticalrubdivisionofthcrtrte~inMo5dalcapacity~m 

~~~apaononthebruisofhirorha’race,rrligion,color,sex,or 

national origirb@ including rdluing to award a wntmct to the person. Cii. Prac. & Rem. 

Code 5 106.001(a)(7). Subsection (c) provides an exception to this general prohibition 

for municipalities which adopt programs designed to increase the participation of 

“minority business enterprises”~ in public contract awards. 

~~yar~~~tooonddatheeffectoftwonantrmendmentstoseaion 

106.001. In 1991. the legkkure enacted two different versions of subsection (c)(2) of 

section 106.001. Prior to 1991. subsection (c)(2) provided as foknva: 

Neither this section nor any borne-tule charter to general law 

may be wnstrued to prevent I home-rule mtmicipaiity with a 

population of 900,ooO or more according to the most recent federal 

census horn adopting a program or progmms designed to reasonably 

increa participation by minority business enterprkes in public 

contractawards. If,asapartofapro~describesbythis 

subdivision, the goveming body of such a municipality establishes a 

gOal of having a certain pactntage of its public contract awards 

nl&ietotnbloritybusiwssentapriseqthegovaningbodyrhallusea 

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Honorable David H. Cain - Page 2 (DH-234) 

qualified indrpmdmt mu?w to establish to what extent minority 

business enterprises in she tnunicipality are available to receive 

awards for each of the various kinds of construction of public 

contractsthatwillbeawarderl. The pacentagegoalshallnotexceed 

the avail&ii of minority business enterprises in the municipality as 

determined by the hakpe~nt source. 

See Acts 1987.7Oth Leg., ch. 1058.5 1. at 3590 (emphasis added). 

ThefirstMlendment,~chyourcfertoasamendment4wasenactedasputof 

kateBill 992. Sre Acts 1991.72d Leg., ch. 597.5 56, at 2148. It was enacted on May 

25, 1991. and became efkctive on September 1, 1991. See id. 8 113. at 2158. The 

purpose of Senate Bill 992 was to change population figures in statutes that apply to 

political subdivisions with certain populations “so that the statutes continue to apply under 

the 1990 feded census to the same politkd subdivisions to which the statutes applied 

under the 1980 census.” Senate Comm. on State Affairs, Bii Analysis, C.S.S.B. 992,72d 

Leg. (1991). The amendment to subsection (c)(2) of section 106.001 of the Civil Practice 

and Remedies Code changed the italicized figuw “900,000,” to “one million.” Acts 1991. 

72d Leg.. ch. 597. 0 56. at 2148. Senate Bii 992 also wntained section 112(b) which 

provided as follows: 

Totheextemthatalawenactedbythe72ndLegislature, 

Regular session, 1991. wntlicts with this AC& the othcx law prevak. 

regardlessofthetelativedatesofenactmentorthereMiveefkctive 

dues. 

Id. 5 112(b). at 2158. 

The second ametuknt,whichyourefertouamendmentB,wasamctedas 

House Bii 338. See Acts 1991,72d Leg., ch. 665,s 1. at 2423. It was enacted on May 

I6,1991, and became effective on June 16.1991. See id. Q 2? Tbt unendment provides 

as follows: 

Neitherthissectionnoranyhome-rulechartertogwedhw 

rrmybeconstruedto~rhomarulemunicipalitythrt~a 

population of 465,000 or more according to the most recent federal 

census cw home-mk mumkipali~ bed in a caun?~ 

containing (1) a popukztion of more thun 465,000 acuW&ng to the 

most receni f&ml w, and (2) more than 35 hcoqwmted 

nmniciplities awarding to lhe most recent fm census from 

adopting a program or programs designed to reasonably increase 

participation by minority business entaprises in public contract 

p. 1211 
Honorable David H. Cain - Page 3 (m-234) 

awards. If,aspartofaprogramdescriibythissubdiion,the 

governing body of such a municipality establjshes a goal of haying a 

cettain~ofitspubliccontmctawsrdsmadetominority 

busirmsentapri#s,thegavaningbody~luseaquali6edinhmtseaudittoestablishtowhatatentminoritybudnessent~ 

inthemunicipality~rvrilabletonceiverwardsforeachofthe 

vatiotts kinds of wnuntuion of public commcts that will be 

marded. The pmwtage goal shall not cxcd the wailabiity of 

minority business entepises in the municipality as determined by the 

ins-huw audit. 

Id. 8 1, at 2423 (emphasis added). House Bii 338 did not contain a provision similar to 

section 112(b) in Senate Bii 992. 

Fpstyou~ia~~,whaherornotthesetwolmmdmaascwfli*,md,it 

they do, which amendment pmvails. We conclude that the two amendments conflict. 

While amdment A would extend §ion (c)‘s exception to the general prohibition 

&nst discMi&on in section 106.001 only to municipalities with a pop&ion of one 

millionormon~tothemortrrcmtfedaalcawr,MendmmtBwoYldaaend 

it to municipalities with “a popukion of 465.000 or more accordmg to the most recent 

federal census or home-rule municipalit[ies] located in a county wmaining: (1) a 

popdation of more that 465.000 according to tbe most recent federal census; and (2) 

more than 35 incoqmrated municipalities according to the most recent federal census.” In 

dditi09 unendmwt A requim municiptdities to use “a qua&d independent source” to 

establish the extent to which tttbhy business enterprims in the municipality are available 

to~wntnas~~rwndmartBwouldrrquirrnnmi~~esto~”a 

fpdilkd in-house audit” for this purpose.3 Because amendment B extends the exception 

toabroadaclasJofmunicipaliriesthndasunendmentAMdusesthetam”in-house 

audit” rather than the term %tdependent 8ource” used in attmdment 44 the two 

mendmaa wnflict. 

We also conclude that. to the extent they wntlict, amendment B pm& over 

amendment A Section 112(b) of Senate Bii 992 expressly provides that to the extent that 

akwenactedbythefZdLegisLturrduringits1991regukrserdonw~~withthat~ 

wfiichindudes~mdmaaA,theatha&wpmrails,~~oftherelative~esof 

enactment or the relative eiktive dates.” As you point orrt, section 311.025(b) of the 

Code Construction Act provides that “if amendments to the same statute are enacted at 

the tame session of the legislature, one amendment without reference to another, the 

amendmwts shall be hannoniz4& if possible, so that e&t may be given to each. If the 

amwdments are irreconcilable, the latest in date of enactment prevails.” Go+t Code 

5 311.025(b). Under this rule, amendment A, the amendment with the later enactment 

p. 1212 
Honorable David H. Cain - Page 4 (DM-234) 

~~wwldpmrail;bowmr.webelieve~theCodeConstrudionActnrleis 

inapplicable in these ckmsmqw. Ajthough this de of tMutory construction applies 

whenw~~Mleadmmtsmdlmtontheiuue,this~notthecarehae. Inenacting 

~onllZ(b)ofSenateBill992,thel~~~yacpnsteditsintcntwith~to 

thtpropacouncrhouldrprovirianofthrtLwMdrnothakwldoptedintheMme 

aessionwntiict. ~rpecificinsauctionsinreaiaa112@)p~owtbemongwaal 

rule qmssed in section 3 11.025(b) of the Code Construction Act. Therefore, to the 

extatttheywnflict.wtwdmwt BprmmilsoveramendmwtA 

Nat, you ask what the term “in-house audit” means as used in subsection (c)(2) of 

section 106.001 ofthe Cii Practice and Remedies Code. prior to 1991. subsection (c)(2) 

used the tam %dependent source.” Se Acts 1987.7Oth Leg., ch. 1058, 0 1, at 3590. 

The term “independent source” was replaced by the tenit ‘in-house audit” by House Bill 

338 in 1991. See Acts 1991.72d Leg., ch. 665,s 1. at 2423. The term “in-house audit” 

washttm&wdaspartofawmmitteesubatiMebii. Inexplainingthisaapectofthe 

comtnittw substiMe bill, hpmwtah Cmtky, the author of House Bii 338. stated that 

tbesettingofthepewwmge god for minority bushess cntaprisc participation would “be 

done by in-house audit by the municipalities thcmebs.” Hmings on H.B. 338 Before 

the HOUse Cotttm. on Urban AGr& 72d Leg. (March 4.1991) (tape available through 

House Committee Cwrdiwtor). Therefore, we wnclude that the term “in-house audit” 

meansutauditwnductedbyamunici~itlclf.4 

In dditio~ you ask about the following language in subsection (c)(2): 

~ua~ofap~~deJcribedbythisnrbdivisioqtbegovanine 

body of such a municipality establishes a goal of having a certain 

perwmageofitspublicwntractawardsmadetominoritybusineas 

wterpriaes,thegovaningbcdyshaUuseaqwlifkdin-houseauditto 

establish to what extent minority business enterprises in the 

municipality are avaihbIe to receive awards for ccc/r ofthe narions 

kid of consmdion ofpublic cantmets that will be awarded. 

Cii Prac. & Rem Code ~106.001(c)(2)(anp~ added). You ask whether this 

provision “allows tnunicipahties to set goals for all public wntracts” or limits 

municipahties to “setting goals for public construction wntracts.” The meaning of the 

foregoing it&iwd language is unclear, but there is no other language in subsection (c)(2) 

that suggests the subsection is limited to public wnstruction wntracts. Indeed, subsection 

(c)(2) contains several refbrences to “public wntracts” with no modifying or limiting 

bmguage. It is apparent from subsection (c)(2) as a whole that the legislature did not 

intend to limit municipalities to establishing a goal only for public construction wntracts. 

See Tqlor v. Firemen’s mdPoiicemen’s Civil Servile Comm’n of Lubek, 616 S.W.Zd 

‘WeucnoImarcdmykgidalivebiuofywhichwouldbaroathcmaningoflbctam 

‘~tnam~onwiihthctam~in-hwscaudil.” 

p. 1213 
Honorable David H. Cam - Page 5 (DM-234) 

187. 190 (Tex. 1981) (m 8taMory wnsbuwion, one must look to the attire act to 

determine the legislature’s intent with respect to spec%c provisions). 

You ala0 ask whether this provision allows muni~palities to set dEerent goals for 

different categories of wntraw, such as utility, highway, and residential construction 

wntracts. Again, subsection (c)(2) is unclear as to whether a municipality is limited to 

estabushingone~goalormayutabushmanydiffeeeJttgoals. whuethetmn 

“goal” appears only in singular foms the foregohrg italiciaed language suggests that 

municipalities are authorized to consider different categories of wntracts separately. To 

wnchtde that municipaUties are limited to establishing one ovemchhtg goal would read 

this language out of the statute. Therefore, we wnchrde that subsection (c)(2) permits 

municipalities to set different goals for different categories of wntracts. See Chcrvw 

Carp. v. Redmon, 745 S.W.Zd 314. 316 (Tex. 1987) (m statutory wnstruction, one 

should give effect to all words of a statute and not treat any statutory language as 

aqhtsage ifpossiile). 

. You also ask about the following sentence in subsection (c)(2): 

ThepenwUgegoalshaUootexceedtheavailabiiofminority 

bushess wtesptisa in the mtmicipality as determhmd by the in-house 

audit. 

Cii. Prac. & Rem. Code 5 106.001(c)(2). You ask whether this provision limits the 

pacentagegoal’toan~lninorityburinepsentapriseswithMo5wlacatedwithinthe 

city limits of the municipality” and whether minority business enterprises “whose offices 

areoutsidethechylimits.. . but who are available to do work in the municipaUty, [can] 

be included in the perwmage goal.” 

Taken by itae& the foregoing language is unclear whether the perwmage goal 

must be based only on the avaihbii of minority business enterprises located in the 

municipality, or whether it may also be based on minority business enterprises avui&ble to 

pe@rm wcwk in the tmmicipaUty. This ambiguity is resohxd, however, by the prior 

aentenw of subsection (c)(2) which requhes municipalities to “use a qualified in-house 

audit to establish to what extent mitforiv busines enlerprises in lhe municipali~ are 

available to receive awards.” Id. (emphasis added). Clearly, this sentence refers only to 

minority business enterprise located in the municipalii. The&ore, we wnclude that 

subsection (c)(2) does not authorize municipahties to take into acwunt minotity business 

enterprises which are not located in the municipality in establishing the percentage goal.’ 

‘We note, hmem, that nothing in subscuh (cX2) wndd rncdudc a mmicipaliry fnm 

wnsidering bids or awarding a 00ntnct to minority W~IICSS ancrprinr whichucnutbatcdintk 

municipality. 

p. 1214 
Honorabk David H. Cain - Page 6 (3113-234) 

l%aUy, in light of Attorney Oeneral Opinion DM-I 13 (1992). you aah about 

subsection (c)(4) of section 10$.001 qf the Cii Practice and Remedies Code which 

provides as follows: 

&nadlaworahome-ntlecimerthatmquiresoompaitive 

biddingandtheawardofpubUcwmracts to the lowest responsible 

biddersisnotaffectedbythissubsection. However,aUprospeuive 

biddersmaybemquiredtomwtuniformatatkdsdesignedto 

assure a masonable degree of panicipation by minority business 

wterpliaeaitttheperformatlce of any public wntract. 

In Attomey Oeneral Opiion DM-113. we wnchtded that exemptions fkom wmpeti& 

bidding qkemems must be expmssly authorized by the legislature. See Attorney 

Owed Opiion DM-I 13 (1992) at 7. In light ofthis opinion, you ash whether “a bidder’s 

hihue to meet the ‘ttnifotm atandds designed to assure a reasonable degree of 

participation by tninotity businus enterpri&?s in the perfotmance of any public wntmct’ 

[may] be considered as a factor in detenninin g the bidder’s responsibii.” In essence, you 

ask whether the second sentence of subsection (c)(4) creates an exemption from 

wmpethk bidding mqkmwts. Given that exemptions from competitive bidding must 

be upress, we do not believe that section (c)(4) creates an exemption from wmpetitive 

bidding. See id We do bdieve, however, that the second sentence of subsection (c)(4) 

authorins municipalities to retbse to accqt bids tiom prospective bidders that fail to 

“meet unifotm at&ads desigd to assure a masonable degree of participation by 

minority bushtus enterprises.” Webaseourwndusionontheuseoftheterm 

“’ bidders,” which suggests that this provision is intended to permit a 

tntmicipalhy to use such at&ads to acreen bids. We rlro base our wnclusion on the f&t 

that were this not the case, this aeumd acntence would merely be surplusage. &e 

C%ewan Cop., 745 S.W.2d at 316 (m statutory wnstruction, one should give effect to all 

words of a atatute and not treat any statutory language as surplusage ifpossiile). 

SUMMARY 

TotheextentaconUictexistsbetweentwoamendmentsto 

aection 106.001(c)(2) of the Cii Practice and Remedies Code 

atacted by the 72d Legislatuq Acts 1991.72d Leg.. ch. 597. 5 56. 

at 2148 smd Acts 1991, 72d Leg.. ch. 665, 0 1, at 2423. the latter 

provision prevails. 

The term “in-house audit” as used in subsection (c)(2) of section 

106.001 of the Civil Practice and Remedies Code means an audit 

petformed by a municipaUi itself. Subsection (c)(2) does not limit a 

municipality to establishing a percentage goal for wntracts awarded 

to minority business enterpriws only for public construction 

cmmacts. It permits a municipality to set different goals for different 

categories of wntracts. Subsection (c)(2) does not authorize a 

p. 1215 
Honorable David H. Cain - Page 7 (DM-234) 

municipality to take into account minority business enterprises which 

are not located in the municipality in establiq the goal. 

Subsection (c)(4) of the Civil Practice and Remedies Code does 

not create an exemption from wmpetitive bidding requirements. It 

does, however, authorize muaicipalities to &se to accept bids fkom 

prospwtive bidders that fail to “meet uniform standards designed to 

assure a reasonable degree of participation by minority business 

enterprisu.’ 

DAN MORALES 

Attorney Oeneral of Texas 

WILL PRYOR 

Pii As&ant Attomey oeneral 

MARYKELLER 

Deputy Attorney Oeneral for Litigation 

BENBAHICKS 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

PfCp-CdbyhiltyR CfOtlt~ 

Ahtant Attorney oeneral 

p. 1216