                    THE        ATTORNEY                    GENERAL
                                       OFTEXAS




Honorable    Sidney Latham
secretary    of state
Austin,   Texas

Dear   Sir:                                       Opinion No. O-5171A
                                                  Re:   Whether    resort   may be had to
                                                        the journals    of the legislature
                                                        to determine     the effective   date
                                                        of an act.

         In our opinion No. O-5171 we were confronted                  with a situation    in
which the journals        of the legislature      reflected     that a bill containing    an
emergency      clause had passed both houses of the legislature                  with the two-
thirds record      vote required     to make it effective         immediately,     but in which
the enrolled     bill itself showed, through the certificate              of the Secretary     of
the Senate, that the bill had passed the Senate only by a viva vote vote.
In that opinion we held that the “enrolled              bill rule” governs      this situation
and that the journals        cannot be employed         to contradict     the recital   of the
vote as contained       in the enrolled     bill.   Further      consideration    of this prob-
lem has convinced         us that we were in error          in this, portion of opini.on No.
O-5171, and said opinion is hereby overruled                  insofar as it is in conflict      with
the following     discussion.

        The ““enrolled   bill rule” has been stated by our courts in extremely
broad language.      Thus, for example,     in the case of Ellkon       v. Texas Liquor
Control   Board,  154 S. W. (2) 332 (error       refused),   quoted in our prior opin-
ion, the Court said that the enrolled      bill ‘“constitutes    a conclusive    record
of the passage   of the act as enrolled”,      and added that where the certificate
of the Secretary    of the Senate stated that the Senatb had receded           from cer-
tain amendments      to the act in question    “it must be conclusively       presumed
that the Senate receded      in a timely and proper way”.     If such language
could be considered     apart from its context and be given a literal      interpreta-
tion, extrinsic  evidence     could not be used to contradict   any fact affirmatively
stated in the enrolled    bill, and our prior opinion would stand unchallenged.
However,    we find that such an interpretation     is not permissible.
Honorable     Sidney     Latham,   Page    2, O-5171A



               Section     39 of Article   III of our CDnstitution    provides:

               “No law passed by the Legislature,           except the general
        appropriation      act, shall take effect or go into force until
        ninety days after the adjournment          of the session at which it
        was enacted,      unless in case of an emergency,        which emer-
        gency must be expressed           in a preamble   or in the body of the
        act, the Legislature       shall, by a vote of two.-thirds    of all the
        members      elected    to each House, otherwise      direct;  said vote
        to be taken by yeas and nays, and entered            upon the journals.”

             In the cae.e of Ewing v. Duncan, 16 S. W. 1000 (1891) our
Supreme   Court, in applying  this section    of the Constitution to a situation
akin to the one under consideration,     said:

                “This act was passed March 5, 1891, and took effect
        from its passage.        There   is a manifest    error   in the certifi-
        cate of the Secretary       of the senate attached to the bill; and,
        since the printed laws will probably           contain the certificate
        as written,   we think it proper      to call attention    to it. It reads
        as follows:    ‘I certify   that the within named H.S.S.B.        No. 15
        passed the senate by 2/3 vote; yeas 24, nays 24. March 5th,
        1891.’ We have caused the senate journal              to be examined      as
        being the best evidence        of the actual vote upon the passage         of
        the bill and find that it received       largely   more than a two-
        thirds majority.      For this action there is ample authority.
         1 Whart. Ev. § 290, and cases cited, especially             Ottwaw v.
        Perkins,    94 U. S. 260.”

                In Williams     v. Teylor, 19 S. W. 156 (1892), the Supreme
Court   explained   Ewing     v. Duncan as follows:

                “In Ewing v. Duncan, (Tex. Sup.) 16 S. W. Rep. 1000, the
        question was not whether        the bill had passed, but whether       it
        had been carried      by a sufficient   majority    to put it in immediate
        effect.    The signatures    of the presiding    officer   and the governor
        attested    the passage   of the act, but did not determine       that it had
        taken effect from the date of its passage.           There being no method
        of attesting    the fact that a bill which purports      to take effect from
Honorable    Sidney   Latham,    Page   3, O-5171A



        its passage  has received   the required two-thirds  majority,            we
        deemed the journals    the best evidence  upon that question,            and
        looked to them for that purpose only.”

            A like explanation   was made in El Paso & S. W. R. Co.                  V. Foth,
100 S. W. 171, reversed   on other grounds, 105 S. W. 322.

               In Railway     v. McGlamory,      92 Tex. 150, 41 S. W. 466, it appears
that the Supreme      Court turned to the journals       of the legislature     to determine
the effective    date of an act, but the propriety      of this action was not discussed
by the Court.      In Ellison    v. Texas Liquor    Control   Board, supra, we find the
statement:     ‘“The (district)     court by its judgment found that the vote in ques-
tion was duly entered        upon the journals.    The contention     of appellants     that the
act will not be effective       until ninety days after adjournment        is therefore     over-
ruled.”    While in neither of these cases does it appear that the certificate                on
the enrolled    bill differed    from the record    in the journal,    yet the cases do im-
ply that the journals      are determinative     of the vote upon emergency         legislation

                An examination      of the cases involving     the “enrolled    bill rule” re-
veals that in each ins.tance where the rule has been applied the facts sought
to be shown by the journals        have been facts which are not required           by the
Constitution    to be included in the journals.       Thus,   for  example,    virtually     all
of the cases involving      the rule, including the leading case of Williams             v.
Taylor,    supra, have involved      attempts   to employ the journals       to show that
bills have not been referred        to committees    or have not been read on three
several    days, and the journals      are nowhere    required    by the Constitution       to
show the occurrence        of either of these facts.     Likewise,    in Ellison    V. Texas
Liquor    Control   Board,   supra, the attempt was to show that the Senate had
never receded      from its prior amendments        to a House bill;      again, such fact
is not required     by the Constitution    to be shown in the journals.

               On the other hand, we find no case where the “enrolled               bill rule”
has been invoked to pr,event recourse           to the journals   to ascertain    facts which
are required     by the Constitution      to be shown on such records.         Indeed, not-
withstanding    the rule, our courts have on several          occasions    allowed,the    journals
to be used to establish       such facts.    Thus, in Hunt v. State, 3 S. W. 233 (1886)
since Section 38 of Article        III of the Constitution   requires    that the presiding
officers   of the legislature     sign all bills and joint resolutions      in the presence
of their respective      bodies and that the fact of such signing be entered            on the
Honorable     Sidney   Latham,       Page   4, 0-517lA




journals, the Court of Appeals    permitted  recourse   to the journals   to es-
tablish such fact. In the case of In re Tipton,    13 S. W. 610 (1890) the
same Court reconciled    its action wlth~ the “enrolled   bill rule” as follows:

              ‘In   Hunt v. State,     22 Tex.   App.    396, 3 S. W. Rep.    233,
      this court held that where the constitution             expressly    requires
      that the journals       shall show a particular       fact or action of the
      legislature     in the enactment        of a statute, as that a bill was
      signed by the presiding         officer    of each house, such fact or ac-
      tion must affirmatively         appear in the journals,       or the statute
      will be invalid.       But, where there is no express          constitutional
      requirement       that the journals       shall show affirmatively      that a
      constitutional      requirement      has been observed,      it will be con-
      clusively    presumed      that such requirement        was observed;      and
      neither    the journals,     nor any other evidence,       will in such case
      be allowed     to impeach the validity         of the statute.”

             In Williams  v. Taylor,   supra, the Supreme      Court said, with re-
spect to the Tipton case, “the well-considered         opinion in that case fully
accords   with our views n , w hile in Holman v. Pabst, 27 S. W. (2) 340
(1930) (error   refused) the decision    and the opinion in the Tipton case
were again approved.     Likewise,    in H. & T. C. R. R. Co. v. Odum, 53
Tex. 343 (1880), since the Constitution      requires    that the vote upon a
bill vetoed by the governor    be entered    upon the journals,    the journals
were deemed determtnative       of the question    of whether   a bill was prop-
erly passed over the governor’s       veto.

             Since the requirement       that the vote upon emergency           legisla-
tion be entered   in the journals     is expressly     contained    in the Constitution,
it is our opinion that the instant situation       falls under the above authorities
rather than under those which expound and apply the “enrolled                   bill rule”,
and you are respectfully      advised that the journals        of the legislature        are
the ultimate   and determinative       authorities   on the question      of whether       or
not the required   two-thirds     vote has been received.         Under this conclu-
sion the bill in question became effective         immediately       upon its passage
and approval    and no corrective      measures     are required      to effect     this
result.
Honorable      Sidney   Latham,    Page   5, O-5171A




               Trusting  that the foregoing   rectifies    the error       in our prior
opinion     and fully answers   your inquiry,   we are

                                                           Very    truly   yours

                                                       ATTORNEY       GENERAL       OF TEXAS




                                                                  R. Dean Moorhead
                                                                         Assistant
RDM:mp



APPROVED         MAY    24, 1943




ATTORNEY         GENERAL      OF TEXAS



                                                               This Opinion
                                                               Considered
                                                               and Approved
                                                              in Limited
                                                              Conference
