                         4Bfficerf &e &Ittornep@?knetal
                                     %tate of ,Qexafl
DAN MORALES
 ATTORX‘
      GENERAL
        EI’                              July 12.1993



     Honorable David H. Cain               opinion No. DIM-234
     chair
     Committ~onTmnspoztation               ltlx constructionofrecentmnwdmwtsto
     Texas House ofRqmxntatives            section 106.001(c)(2) of the Cii Practice and
     P.O. Box 2910                         Runedies code regding           a mlmicipalityJs
     Austin, Texas 78768-2910              progmm to increase participation by minority
                                           businessenterprises in public contract awards and
                                           dated questions (RQ-516)

     IkURcprrrentativeC8bl:

            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@includingrdluing 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
     “minoritybusiness 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,ooOor 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




                                          p.   1210
Honorable David H. Cain - Page 2        (DH-234)




          qualified
                  indrpmdmt mu?w         to establish
                                                   to what extentminority
          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 municipalityas
          determined by the hakpe~nt source.
See Acts 1987.7Oth Leg., ch. 1058.5 1. at 3590 (emphasisadded).

        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 subdivisionswith certain populations “so that the statutes continue to apply under
the 1990 feded census to the same politkd subdivisionsto which the statutes applied
under the 1980 census.” Senate Comm. on State Affairs,Bii Analysis,C.S.S.B. 992,72d
Leg. (1991). The amendmentto subsection (c)(2) of section 106.001 of the Civil Practice
and Remedies Code changed the italicizedfiguw “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. Q2? 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         censusfrom
          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 municipalityestabljshes a goal of haying a
          cettain~ofitspubliccontmctawsrdsmadetominority
          busirmsentapri#s,thegavaningbody~luseaquali6edin-
          hmtseaudittoestablishtowhatatentminoritybudnessent~
          inthemunicipality~rvrilabletonceiverwardsforeachofthe
          vatiotts kinds of wnuntuion of public commcts that will be
          marded. The pmwtage goal shall not cxcd the wailabiity of
          minority business entepisesinthemunicipalityas 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 &section (c)‘s exception to the general prohibition
 &nst discMi&on in section 106.001 only to municipalitieswith a pop&ion of one
millionormon~tothemortrrcmtfedaalcawr,MendmmtBwoYldaaend
it to municipalitieswith “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 municipalitiesaccording to the most recent federal census.” In
dditi09 unendmwt A requim municiptditiesto use “a qua&d independent source” to
establish the extent to which tttbhy business enterprims in the municipalityare available
to~wntnas~~rwndmartBwouldrrquirrnnmi~~esto~”a
fpdilkd in-house audit”for this purpose.3 Because amendmentB 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 section3 11.025(b)of the Code Construction Act. Therefore, to the
extatttheywnflict.wtwdmwt     BprmmilsoveramendmwtA

        Nat, you ask what the term “in-houseaudit”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 “independentsource” 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 municipalitiesthcmebs.” Hmings on H.B. 338 Before
the HOUseCotttm. 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 followinglanguage 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 municipalitiesto establishinga goal only for public construction wntracts.
See Tqlor v. Firemen’smdPoiicemen’s Civil Servile Comm’nof 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
determinethe legislature’sintent with respect to spec%cprovisions).

        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
municipalitiesare authorized to consider different categories of wntracts separately. To
wnchtde that municipaUtiesare limited to establishing one ovemchhtg goal would read
this language out of the statute. Therefore, we wnchrde that subsection (c)(2) permits
municipalitiesto 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 followingsentence in subsection(c)(2):
           ThepenwUgegoalshaUootexceedtheavailabiiofminority
           bushess wtesptisa in the mtmicipalityas determhmdby 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 availableto 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 wcwkin the tmmicipaUty. This ambiguity is resohxd, however, by the prior
aentenw of subsection (c)(2) which requhes municipalitiesto “use a qualified in-house
audit to establish to what extent mitforiv busines enlerprises in lhe municipali~ are
availableto receive awards.” Id. (emphasisadded). Clearly, this sentence refers only to
minority business enterprise located in the municipalii. The&ore, we wnclude that
subsection (c)(2) does not authorize municipahtiesto take into acwunt minotity business
enterprises which are not located in the municipalityin establishingthe percentage goal.’




        ‘We note, hmem, that nothingin subscuh (cX2) wndd rncdudca mmicipaliryfnm
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 “abidder’s
hihue to meet the ‘ttnifotm atandds designed to assure a reasonable degree of
participation by tninotity businus enterpri&?sin the perfotmance of any public wntmct’
 [may] be considered as a factor in detennining the bidder’sresponsibii.” 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
tntmicipalhyto use such at&ads to acreenbids. We rlro base our wnclusion on the f&t
that were this not the case, this aeumd acntence would merely be surplusage. &e
C%ewanCop., 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 municipalityto 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)




          municipalityto take into account minority business enterprises which
          are not located in the municipalityin 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 muaicipalitiesto &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
