By:  Bomer                                             H.B. No. 643
       73R3162 CAG-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the authority of a municipality or county to set
    1-3  reasonable financial criteria for a surety company that provides a
    1-4  payment or performance bond.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Subchapter C, Chapter 252, Local Government Code,
    1-7  is amended by adding Section 252.0445 to read as follows:
    1-8        Sec. 252.0445.  FINANCIAL CRITERIA FOR SURETY COMPANY.  A
    1-9  municipality may establish financial criteria for a surety company
   1-10  that provides a payment or performance bond relating to a contract
   1-11  made under this chapter.
   1-12        SECTION 2.  Section 262.025(d), Local Government Code, is
   1-13  redesignated as Section 262.0256 and amended to read as follows:
   1-14        Sec. 262.0256.  WORK TO BE PERFORMED BY BIDDER.  (a)  This
   1-15  section applies only to:
   1-16              (1) <(d)  In> a county with a population of 2.2 million
   1-17  or more; and
   1-18              (2)  a<, the county and any> district or authority that
   1-19  is located in a county with a population of 2.2 million or more, is
   1-20  created under Article XVI, Section 59, of the Texas Constitution,
   1-21  and is governed by <of which the governing body is> the
   1-22  commissioners court of the county.
   1-23        (b)  The county, district, or authority may require that a
   1-24  minimum of 25 percent of the work be performed by the bidder <and,
    2-1  notwithstanding any other law to the contrary, may establish
    2-2  financial criteria for the surety companies that provide payment
    2-3  and performance bonds>.
    2-4        SECTION 3.  Subchapter C, Chapter 262, Local Government Code,
    2-5  is amended by adding Section 262.0257 to read as follows:
    2-6        Sec. 262.0257.  FINANCIAL CRITERIA FOR SURETY COMPANY.  A
    2-7  county, district, or authority may establish financial criteria for
    2-8  a surety company that provides a payment or performance bond
    2-9  relating to a contract made under this subchapter.
   2-10        SECTION 4.  Section 271.025(e), Local Government Code, is
   2-11  redesignated as Section 271.0255 and amended to read as follows:
   2-12        Sec. 271.0255.  WORK TO BE PERFORMED BY BIDDER.  (a)  This
   2-13  section applies only to:
   2-14              (1) <(e)  In> a county with a population of 2.2 million
   2-15  or more; and
   2-16              (2)  a<, the county and any> district or authority that
   2-17  is located in a county with a population of 2.2 million or more, is
   2-18  created under Article XVI, Section 59, of the Texas Constitution,
   2-19  and is governed by <of which the governing body is> the
   2-20  commissioners court of the county.
   2-21        (b)  The county, district, or authority may require that a
   2-22  minimum of 25 percent of the work be performed by the bidder <and,
   2-23  notwithstanding any other law to the contrary, may establish
   2-24  financial criteria for the surety companies that provide payment
   2-25  and performance bonds>.
   2-26        SECTION 5.  Subchapter B, Chapter 271, Local Government Code,
   2-27  is amended by adding Section 271.0256 to read as follows:
    3-1        Sec. 271.0256.  FINANCIAL CRITERIA FOR SURETY COMPANY.  A
    3-2  county, municipality, district, or authority may establish
    3-3  financial criteria for a surety company that provides a payment or
    3-4  performance bond relating to a contract made under this subchapter.
    3-5        SECTION 6.  Section 271.055(e), Local Government Code, is
    3-6  redesignated as Section 271.0565 and amended to read as follows:
    3-7        Sec. 271.0565.  WORK TO BE PERFORMED BY BIDDER.  (a)  This
    3-8  section applies only to:
    3-9              (1) <(e)  In> a county with a population of 2.2 million
   3-10  or more; and
   3-11              (2)  a<, the county and any> district or authority that
   3-12  is located in a county with a population of 2.2 million or more, is
   3-13  created under Article XVI, Section 59, of the Texas Constitution,
   3-14  and is governed by <of which the governing body is> the
   3-15  commissioners court of the county.
   3-16        (b)  The county, district, or authority may require that a
   3-17  minimum of 25 percent of the work be performed by the bidder <and,
   3-18  notwithstanding any other law to the contrary, may establish
   3-19  financial criteria for the surety companies that provide payment
   3-20  and performance bonds>.
   3-21        SECTION 7.  Subchapter C, Chapter 271, Local Government Code,
   3-22  is amended by adding Section 271.0566 to read as follows:
   3-23        Sec. 271.0566.  FINANCIAL CRITERIA FOR SURETY COMPANY.  An
   3-24  issuer may establish financial criteria for a surety company that
   3-25  provides a payment or performance bond relating to a contract made
   3-26  under this subchapter.
   3-27        SECTION 8.  Section A, Article 5160, Revised Statutes, is
    4-1  amended to read as follows:
    4-2        A.  Any person or persons, firm, or corporation, hereinafter
    4-3  referred to as "prime contractor," entering into a formal contract
    4-4  in excess of $25,000 with this State, any department, board or
    4-5  agency thereof; or any county of this State, department, board or
    4-6  agency thereof; or any municipality of this State, department,
    4-7  board or agency thereof; or any school district in this State,
    4-8  common or independent, or subdivision thereof; or any other
    4-9  governmental or quasi-governmental authority whether specifically
   4-10  named herein or not, authorized under any law of this State,
   4-11  general or local, to enter into contractual agreements for the
   4-12  construction, alteration or repair of any public building or the
   4-13  prosecution or completion of any public work, shall be required
   4-14  before commencing such work to execute to the aforementioned
   4-15  governmental authority or authorities, as the case may be, the
   4-16  statutory bonds as hereinafter prescribed, but no governmental
   4-17  authority may require a bond if the contract does not exceed the
   4-18  sum of $25,000. Each such bond shall be executed by a corporate
   4-19  surety or corporate sureties in accordance with  Section 252.0445,
   4-20  262.0257, 271.0256, or 271.0566, Local Government Code,  if
   4-21  applicable, and with Section 1, Chapter 87, Acts of the 56th
   4-22  Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas
   4-23  Insurance Code). In the case of contracts of the State or a
   4-24  department, board, or agency thereof, the aforesaid bonds shall be
   4-25  payable to the State and shall be approved by the Attorney General
   4-26  as to form.  In case of all other contracts subject to this Act,
   4-27  the bonds shall be payable to the governmental awarding authority
    5-1  concerned, and shall be approved by it as to form.  Any bond
    5-2  furnished by any prime contractor in an attempted compliance with
    5-3  this Act shall be treated and construed as in conformity with the
    5-4  requirements of this Act as to rights created, limitations thereon,
    5-5  and remedies provided.  Any provision in any bond furnished by a
    5-6  prime contractor in attempted compliance with this Act that expands
    5-7  or restricts the rights or liabilities provided under this Act
    5-8  shall be disregarded and the provisions of this Act shall be read
    5-9  into that bond.
   5-10        (a)  A Performance Bond in the amount of the contract
   5-11  conditioned upon the faithful performance of the work in accordance
   5-12  with the plans, specifications, and contract documents.  Said bond
   5-13  shall be solely for the protection of the State or the governmental
   5-14  authority awarding the contract, as the case may be.
   5-15        (b)  A Payment Bond, in the amount of the contract, solely
   5-16  for the protection of all claimants supplying labor and material as
   5-17  hereinafter defined, in the prosecution of the work provided for in
   5-18  said contract, for the use of each such claimant.
   5-19        Notwithstanding any provision in this Act or in Chapter 252
   5-20  or 262, Local Government Code, if the governmental authority fails
   5-21  to obtain from the prime contractor a payment bond in compliance
   5-22  with this Act covering a contract in excess of $25,000, the
   5-23  authority is subject to the same liability as that of a surety who
   5-24  had issued a valid bond if the authority had complied with this
   5-25  section, and a claimant is entitled to a lien on funds due the
   5-26  prime contractor in the same manner and to the same extent as if
   5-27  the contract were subject to Subchapter J, Chapter 53, Property
    6-1  Code.
    6-2        SECTION 9.  The importance of this legislation and the
    6-3  crowded condition of the calendars in both houses create an
    6-4  emergency and an imperative public necessity that the
    6-5  constitutional rule requiring bills to be read on three several
    6-6  days in each house be suspended, and this rule is hereby suspended,
    6-7  and that this Act take effect and be in force from and after its
    6-8  passage, and it is so enacted.