By:  West, Lucio                                       S.B. No. 227
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to a bond executed in connection with a public works or
    1-2  public construction contract.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Article 5160, Revised Statutes, is amended by
    1-5  amending Section A and by adding Section J to read as follows:
    1-6        A.  Any person or persons, firm, or corporation, hereinafter
    1-7  referred to as "prime contractor," entering into a formal contract
    1-8  in excess of $25,000 with this State, any department, board or
    1-9  agency thereof; or any county of this State, department, board or
   1-10  agency thereof; or any municipality of this State, department,
   1-11  board or agency thereof; or any school district in this State,
   1-12  common or independent, or subdivision thereof; or any other
   1-13  governmental or quasi-governmental authority whether specifically
   1-14  named herein or not, authorized under any law of this State,
   1-15  general or local, to enter into contractual agreements for the
   1-16  construction, alteration or repair of any public building or the
   1-17  prosecution or completion of any public work, shall be required
   1-18  before commencing such work to execute to the aforementioned
   1-19  governmental authority or authorities, as the case may be, the
   1-20  statutory bonds as hereinafter prescribed, but no governmental
   1-21  authority may require a bond if the contract does not exceed the
   1-22  sum of $25,000.  Each such bond shall be executed by a corporate
   1-23  surety or corporate sureties in accordance with Section 1, Chapter
   1-24  87, Acts of the 56th Legislature, Regular Session, 1959 (Article
    2-1  7.19-1, Vernon's Texas Insurance Code).  In the case of contracts
    2-2  of the State or a department, board, or agency thereof, the
    2-3  aforesaid bond <bonds> shall be payable to the State and shall be
    2-4  approved by the Attorney General as to form.  In case of all other
    2-5  contracts subject to this Act, the bond <bonds> shall be payable to
    2-6  the governmental awarding authority concerned, and shall be
    2-7  approved by it as to form.  Any bond furnished by any prime
    2-8  contractor in an attempted compliance with this Act shall be
    2-9  treated and construed as in conformity with the requirements of
   2-10  this Act as to rights created, limitations thereon, and remedies
   2-11  provided.  Any provision in any bond furnished by a prime
   2-12  contractor in attempted compliance with this Act that expands or
   2-13  restricts the rights or liabilities provided under this Act shall
   2-14  be disregarded and the provisions of this Act shall be read into
   2-15  that bond.
   2-16        (a)  A Performance Bond shall be executed for any contract in
   2-17  excess of $100,000 in the amount of the contract conditioned upon
   2-18  the faithful performance of the work in accordance with the plans,
   2-19  specifications, and contract documents.  Said bond shall be solely
   2-20  for the protection of the State or the governmental authority
   2-21  awarding the contract, as the case may be.
   2-22        (b)  A Payment Bond shall be executed, for any contract in
   2-23  excess of $25,000, in the amount of the contract, solely for the
   2-24  protection of all claimants supplying labor and material as
   2-25  hereinafter defined, in the prosecution of the work provided for in
   2-26  said contract, for the use of each such claimant.
   2-27        Notwithstanding any provision in this Act or in Chapter 252
    3-1  or 262, Local Government Code, if the governmental authority fails
    3-2  to obtain from the prime contractor a payment bond in compliance
    3-3  with this Act covering a contract in excess of $25,000, the
    3-4  authority is subject to the same liability as that of a surety who
    3-5  had issued a valid bond if the authority had complied with this
    3-6  section, and a claimant is entitled to a lien on funds due the
    3-7  prime contractor in the same manner and to the same extent as if
    3-8  the contract were subject to Subchapter J, Chapter 53, Property
    3-9  Code.
   3-10        J.  A governmental authority that awards the contract for the
   3-11  construction, alteration, or repair of a public building or for the
   3-12  prosecution or completion of any public work may provide for
   3-13  payment of the prime contractor in installments based on completion
   3-14  of work under the contract.
   3-15        SECTION 2.  Section 252.044, Local Government Code, is
   3-16  amended to read as follows:
   3-17        Sec. 252.044.  CONTRACTOR'S BOND; INSTALLMENT PAYMENTS.
   3-18  <(a)>  If the contract is for the construction of public works, the
   3-19  <bidder to whom the contract is awarded must execute a good and
   3-20  sufficient bond.  The bond must be:>
   3-21              <(1)  in the full amount of the contract price;>
   3-22              <(2)  conditioned that the contractor will faithfully
   3-23  perform the contract; and>
   3-24              <(3)  executed, in accordance with Article 5160,
   3-25  Revised Statutes, by a surety company authorized to do business in
   3-26  the state.>
   3-27        <(b)  If the contract requires an expenditure of less than
    4-1  $100,000, the bond is not required if the contract provides that
    4-2  payment is not due to the contractor until the work is completed
    4-3  and is accepted by the municipality.>
    4-4        <(c)  The> governing body of a home-rule municipality <by
    4-5  ordinance> may:
    4-6              (1)  by ordinance adopt the provisions of <this section
    4-7  and> Article 5160, Revised Statutes, relating to contractors'
    4-8  surety bonds, regardless of a conflicting provision in the
    4-9  municipality's charter; and
   4-10              (2)  provide that a contractor will be paid in
   4-11  installments based on completion of work under the contract.
   4-12        SECTION 3.  Subsection (b), Section 262.032, Local Government
   4-13  Code, is amended to read as follows:
   4-14        (b)  The county may provide in the bid notice or request for
   4-15  proposals that money will be paid to the contractor in installments
   4-16  based on completion of work under the contract. Within 10 days
   4-17  after the date of the signing of a contract or issuance of a
   4-18  purchase order following the acceptance of a bid or proposal, the
   4-19  bidder or proposal offeror shall furnish a performance bond to the
   4-20  county for the full amount of the contract if that contract exceeds
   4-21  $100,000 <$50,000>.
   4-22        SECTION 4.  This Act takes effect September 1, 1993, and
   4-23  applies only to a contract entered into on or after that date.  A
   4-24  contract entered into before the effective date of this Act is
   4-25  governed by the law in effect when the contract was entered into,
   4-26  and the former law is continued in effect for that purpose.
   4-27        SECTION 5.  The importance of this legislation and the
    5-1  crowded condition of the calendars in both houses create an
    5-2  emergency and an imperative public necessity that the
    5-3  constitutional rule requiring bills to be read on three several
    5-4  days in each house be suspended, and this rule is hereby suspended.