Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
June 7, 1978
JOHN L. HILL
Attorney General
Honorable Joe Resweber Opinion No. H- 1176
Harris County Attorney
Harris County Courthouse Re: May Harris County require
Houston, Texas 77002 performance and payment bonds
from contractors doing work on
contracts not in excess of
$25,000.
Dear Mr. Resweber:
You have requested our opinion as to whether Harris County may
require its contractors to furnish payment and performance bonds on
contracts not in excessof $25,000.
From 1975 to 1977, article 5160, V.T.C.S., required payment and
performance bonds on all public works contracts in excess of $15,000. As we
held in Attorney General Opinion Ii-813 (l976), however, a governmental
authority was not prohibited by the statute from requiring a contractor to
execute a bond when the contract was in a lesser amount, since common law
bonds were recognized in Texas. In 1977, the Legislature amended article
5160 by increasing to $25,000 the amount above which contractors must
furnish the statutory bonds. House Bill 305, Acts 1977, 65th Leg., ch. 809, at
2027. .To overcome the effect of Attorney General Opinion H-813, the
Legislature added a proviso to article 5160:
. . . but no governmental authority may require a bond
if the contract does not exceed the sum of $25,000.
You first contend that this portion of the statute is invalid because the title
of House Bill 305 fails to give notice of the proviso’s effect.
The title to House Bill 305 states:
An Act relating to contractor’s performance and
payment bonds and certain liens for contracts over a
Honorable Joe Resweber - Page 2 (R-1176)
certain amount: amending Subdivision A of ‘Article 5160 and
Article 542’7a, Revised Civil Statutes of Texas, 1925, as
amended.
(Emphasis added). It is your position that, by failing to give notice of its intent to
affect the requirement of bonds for contracts below a certain amount, the title
contravenes article 3, section 35 of the Texas Costion, which invalidates every
part of a statute “which [is] not expressed in the title.”
ln Robinson v. Hill, 507 S.W.Zd 521 (Tex. 1974), the Supreme Court held that
article 3, section 35 requires only that
the title state the general subject; it need not explain the
details.
507 S.W.2d at 525. To amend a bill, a mere
reference to the act or section to be amended is adequate,
as long as the subject matter of the amendment is germane
or reasonably related to the content of the original act.
Smith v. Davis, 426 S.W.2d 827, 833 (Tex. 1968). The precise effects of the bill
need not be described in its title
so long as the subject of the amendatory act is not “remote”
from the subject of the original act.
-Id. at 833.
So, far from being “remote” from the subject of the original act, the proviso
in question would appear to complement it: the one describes the legislative intent
with regard to the requirement of bonds on public contracts in excess of a
particular amount, while the other describes the legislative intent with respect to
the requirement of bonds on public contracts not in excess of that amount. In our
opinion, no portion’ of article 5160, as amended in 1977, is invalid by virtue of a
defective title.
The answer to your initial question, then, is that, as a general rule, Harris
County may not, under the present language of article 5160, require that payment
and performance bonds be furnished on public works contracts not in excess of
$25,000. The Harris County Road Law, however, requires a different result for
certain kinds of public works contracts.
p. 4751
. *
Honorable Joe Resweber - Page 3 (~-11761
The Harris County Road Law, enacted in 1913and amended a number of times
thereafter, grants to the Commissioners Court of Harris County the authority to
enter into contracts for the construction and maintenance of roads, bridges and
drainage facilities. Acts 1967, 60th Leg., ch. 555, SS 1, 2, 9, at 1228. Section 9 of
the Road Law requires a performance bond on any such contract in excess of
$1.000. Section 33 provides that, in the event of a conflict with general law, the
Road Law controls as to Harris County. In City of Piney Point Village v. Harris
479 S.W.2d 358 (Tex. Civ. App. - Houston [lst Dist.1 1972, writ ref’d
n.r.e., appeal dismissed, 410 U.S. 976 (19731, the court affirmed this statutory
=?
declaration:
This [the Harris County Road Law] is a special law and its
provisions, where in conflict with the general law, on the
same subject will control.
479 S.W.2d at 365.
We conclude, therefore, that Harris County must require a performance bond
on every public works contract that is “incident to” the construction of roads,
bridges or drainage facilities, provided the contract amount is greater than $1,000.
It may not require a performance bond on any other kind of public works contract
unless the amount of the contract is in excess of $25,000, and it may not require a
payment bond on any public works contract, including those related to roads,
bridges and drainage, unless the amount of the contract exceeds $25,000. We
cannot here determine whether any particular public works project is “incident to
. . . roads, bridges and drainage.”
SUMMARY
Harris County must require a performance bond on every
public works contract that is “incident to” the construction
of roads, bridges or drainage facilities, provided the con-
tract amount is greater than $1,000. It may not require a
performance bond on any other kind of public works contract
unless the amount of the contract is in excess of $25,000,
and it may not require a payment bond on any public works
contract, including those related to roads, bridges and
drainage, unless the amount of the contract exceeds
$25,000.
Attorney General of Texas
p. 4752
.I .
Honorable Joe Resweber - Page 4 (H-1176)
APPROVED:
&%$%.J2z
C. ROBERT HEATH, Chairman
Opinion Committee
p. 4753