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2002 Mississippi Attorney General Reports and Opinions 1 (2002)

handle is hein.sag/sagms0075 and id is 1 raw text is: Mississippi Attorney General Opinions

Tommie S. Cardin, Esq.
Office of the Attorney General
November 12, 2002
Office of the Attorney General
State of Mississippi
*1   Opinion No. 2002-0616
*1 November 12, 2002
Re: Retroactive Application of H.B. 1562 (Laws, 2002)
*1 Tommie S. Cardin, Esq.
*1 Butler, Snow, O'Mara, Stevens & Cannada, PLLC
*1 Post Office Box 2567
*1 Jackson, Mississippi 39225-2567
Dear Mr. Cardin:
*1 Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your
letter, on behalf of the Mississippi State Board of Contractors, reads as follows:
*1 House Bill 1562 amended Miss. Code Ann. Section 31-5-33 to reduce the retai nage amount on public contracts from ten percent (10%) to five
percent (5%). The bill provided that it would take effect from and after July 1,2002. The Board requests your opinion as to whether H.B. 1562
applies retroactively to contracts already in existence prior to July 1, 2002.
*1 The general rule regarding the retroactive application of statutes is that unless it is clearly stated or can be clearly inferred, statutes enacted by
the legislature will be deemed to operate prospectively. MS AG Op., Hicks (November 14, 1984). That being said, we call your attention to a
previous opinion issued by this office specifically in relation to Section 31-5-33. MS AG Op., Capps (September 6, 1996). In that opinion, we said
in regard to the 1996 amendments to this statute (Ch. 495, Section 2, Laws of 1996) that the retainage reduction provisions.., apply to all public
construction contracts now in existence, whether entered into prior to July 1, 1996, or thereafter. As basis for that opinion, we relied on certain
language contained in the 1996 amendments and continued in the 2002 version, opining that [u]se of the language in the 1996 amendment, held
to date, to describe the retainage to be effected by the statute shows, in our opinion, the intent of the Legislature that this amendment should
apply to all existing contracts executed both before and after the effective date of the statute.
*1 Upon further review, we are now of the opinion that this is an incorrect interpretation of the language held to date. The portion of the statute in
question reads as follows:
*1 On any contract as described herein, of which the total amount is Two Hundred Fifty Thousand Dollars ($250,000.00) or greater, or on any
contract with a subcontractor, regardless of amount, five percent (5%) shall be retained until the work is at least fifty percent (50%) complete, on
schedule and satisfactory in the architect's and/or engineer's opinion, at which time fifty percent (50%) of the retainage held to date shall be
returned to the prime contractor for distribution to the appropriate subcontractors and suppliers. Provided, however, that future retainage shall be
withheld at the rate of two and one-half percent (2 %).
*1 The language retainage held to date applies to any retainage held as of the date that the contract is at least 50% complete, and does not
bear any relation to the date upon which the statute or amendment thereto became effective.
*2 Having reviewed House Bill 1562 (2002), we find no language in that legislation which either clearly states or from which it can be implied that
it is to become effective retroactively. Therefore, it is the opinion of this office that the amendments to Section 31-5-33 contained in House Bill
1562 (2002) do not apply retroactively to contracts already in existence prior to July 1, 2002. This opinion supersedes our prior opinion (MS AG
Op., Capps [September 6, 1996]) to the extent that it is in conflict.
*2 If our office may be of further assistance, please advise.
*2 Mike Moore
*2 Attorney General
*2 By: Heather P. Wagner
*2 Assistant Attorney General


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