JOHN L. HILL 

Attorney General 

The Attorney General of Texas 

June 12, 1978 

Honorable Chris Victor Semos 

Chairman 

House Committee on Business 

& 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 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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Honorable Chris Victor Semos - Page 3 (H-1182) 

Very truly yours, 

APPROVED: 

Attorney General of Texas 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jsn 

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