JOHN L. HILL Attorney General 

# The Attorney General of Texas
June 12, 1978

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

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

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 sumof $25,000. (Emphasis added). The underlined language was added in 1977. See Acts 1977, - 65th Leg., ch. 809, at 2027. The article 5160provisions 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 ofArticle 11,Section 5,of the Constitution of Texas, unless especially excepted under the terms ofthis Act. See. 1. Section 2provides inpart:

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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 adobusiness 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 aclear legislative intent to include them. InTrimmier v.Carlton, 296S.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). Inour opinion, the 1977amendment 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 bycontractors and the manner of letting of contracts, as contained in the charter ofa city, if in conflict with the provisions of this Act, shall be followed in such city notwithstanding any other provisions ofthis Act. Home rule cities must follow their charter provisions on the furnishing of surety bonds, inthe event they conflict with article 2368a. Inour 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 5160and 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 5160as incorporated by2368a.

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Very truly yours,

APPROVED: Attorney General of Texas

C. ROBERT HEATH, Chairman Opinion Committee jsn

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