Case Information
*1 4Bffice rf &e &Ittornep @?knetal
%tate of ,Qexafl DAN MORALES July 12.1993 ATTORX‘EI’ GENERAL
Honorable David H. Cain opinion No. DIM-234 chair
Committ~onTmnspoztation ltlx constructionofrecentmnwdmwtsto section 106.001(c)(2) of the Cii Practice and Texas House ofRqmxntatives P.O. Box 2910 Runedies code regding a mlmicipalityJs Austin, Texas 78768-2910 progmm to increase participation by minority
business enterprises in public contract awards and dated questions (RQ-5 16) 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@ including rdluing 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 “minority business 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,ooO or 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 *2 Honorable David H. Cain - Page 2 (DH-234)
qualified indrpmdmt mu?w to establish to what extent minority 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 municipality as determined by the hakpe~nt source.
See Acts 1987.7Oth Leg., ch. 1058.5 1. at 3590 (emphasis added).
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 subdivisions with certain populations “so that the statutes continue to apply under the 1990 feded census to the same politkd subdivisions to which the statutes applied under the 1980 census.” Senate Comm. on State Affairs, Bii Analysis, C.S.S.B. 992,72d Leg. (1991). The amendment to subsection (c)(2) of section 106.001 of the Civil Practice and Remedies Code changed the italicized figuw “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. Q 2? 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 census from adopting a program or programs designed to reasonably increase participation by minority business entaprises in public contract *3 Honorable David H. Cain - Page 3 (m-234)
awards. If,aspartofaprogramdescriibythissubdiion,the governing body of such a municipality establjshes 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 entepises in the municipality as 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 §ion (c)‘s exception to the general prohibition &nst discMi&on in section 106.001 only to municipalities with a pop&ion of one millionormon~tothemortrrcmtfedaalcawr,MendmmtBwoYldaaend it to municipalities with “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 municipalities according to the most recent federal census.” In dditi09 unendmwt A requim municiptdities to use “a qua&d independent source” to establish the extent to which tttbhy business enterprims in the municipality are available to~wntnas~~rwndmartBwouldrrquirrnnmi~~esto~”a
fpdilkd in-house audit” for this purpose.3 Because amendment B 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 *4 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 section 3 11.025(b) of the Code Construction Act. Therefore, to the extatttheywnflict.wtwdmwt BprmmilsoveramendmwtA
Nat, you ask what the term “in-house audit” 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 “independent source” 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 municipalities thcmebs.” Hmings on H.B. 338 Before the HOUse Cotttm. 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 following language 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 municipalities to establishing a goal only for public construction wntracts. See Tqlor v. Firemen’s mdPoiicemen’s Civil Servile Comm’n of Lubek, 616 S.W.Zd ‘WeucnoImarcdmykgidalivebiuofywhichwouldbaroathcmaningoflbctam ‘~tnam~onwiihthctam~in-hwscaudil.” *5 Honorable David H. Cam - Page 5 (DM-234)
187. 190 (Tex. 1981) (m 8taMory wnsbuwion, one must look to the attire act to determine the legislature’s intent with respect to spec%c provisions).
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 municipalities are authorized to consider different categories of wntracts separately. To wnchtde that municipaUties are limited to establishing one ovemchhtg goal would read this language out of the statute. Therefore, we wnchrde that subsection (c)(2) permits municipalities to 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 following sentence in subsection (c)(2): ThepenwUgegoalshaUootexceedtheavailabiiofminority bushess wtesptisa in the mtmicipality as determhmd by 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 available to 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 wcwk in the tmmicipaUty. This ambiguity is resohxd, however, by the prior aentenw of subsection (c)(2) which requhes municipalities to “use a qualified in-house audit to establish to what extent mitforiv busines enlerprises in lhe municipali~ are available to receive awards.” Id. (emphasis added). Clearly, this sentence refers only to minority business enterprise located in the municipalii. The&ore, we wnclude that subsection (c)(2) does not authorize municipahties to take into acwunt minotity business enterprises which are not located in the municipality in establishing the percentage goal.’ ‘We note, hmem, that nothing in subscuh (cX2) wndd rncdudc a mmicipaliry fnm wnsidering bids or awarding a 00ntnct to minority W~IICSS ancrprinr whichucnutbatcdintk municipality.
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 “a bidder’s hihue to meet the ‘ttnifotm atandds designed to assure a reasonable degree of participation by tninotity businus enterpri&?s in the perfotmance of any public wntmct’ [may] be considered as a factor in detenninin g the bidder’s responsibii.” 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 tntmicipalhy to use such at&ads to acreen bids. We rlro base our wnclusion on the f&t that were this not the case, this aeumd acntence would merely be surplusage. &e C%ewan Cop., 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 municipality to set different goals for different categories of wntracts. Subsection (c)(2) does not authorize a *7 Honorable David H. Cain - Page 7 (DM-234)
municipality to take into account minority business enterprises which are not located in the municipality in 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 muaicipalities to &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