                      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:




                                                    P.   4767
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.




                                        p.     4768
Honorable Chris Victor Semos    -   Page 3     (H-1182)




                                           Very truly yours,




                                           Attorney General of Texas

APPROVED:




C. ROBERT   HEATH,   Chairman
Opinion Committee

jsn




                                      P.     4769
