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                       The Attorney             General of. Texas
                                         October        19,     1979

MARK WHITE
Attorney General


                   Honorable W. P. Daves                          Opinion No. NW-73
                   Chairman
                   State Board of Insurance                       Re: Effect     of amendments to
                   lIlOSan Jacinto                                article 2L52 of the Insurance Code.
                   Austin, Texas 78786

                   Dear Mr. Daves:

                         You inquire about the proper interpretation of article 2L52 of the
                   Texas Insurance Code, which was the subject of three amendments during
                   the 66th Legislature.   Article 2152 was originally enacted .in 1977. It
                   required insurance companies to permit holders of health insurance policies
                   to choose a doctor of podiatric medicine to perform medical services
                   covered by the policy that fall within hi license. Three recently enacted
                   amendments add other kinds of practitioners to the coverage of article
                   2L52.                       . ~..

                          Senate Bi 96 became effective on March 7, 1979. It adds doctors of
                   optometrvto    the coverage of article 2L52. An act speaks from the date
                   that it takes effect   TrioIndependent School District vi Sabinal Independent
                   School District, 192 S.W.2d 899 (Tex. Civ. App. - Waco 1946, no writ); city
                   of Corpus Christi v. Herschbach, 536 S.W.%d 653 (Tex. Civ. App. - Corpus
                   Christi 1976. writ ref’d n.r.e.1 (amendments). House Bill 291 and House Bill
                   860 became effective on August 27, 1979. They both attempted to amend
                   article 2152 of the Insurance Code as already amended by Senate SiIl 96.
                   You wish to know which provisions of House Sill 291 and House Bii 860
                   became valid and effective law on and after August 27,1979.

                         House Hi 29l, which was approved May 11, 1979, includes doctors of
                   optometry and doctors of chiropractic within article 21.52 of the Insurance
                   Code.    House Rii 860,: which was approved June 7, 1979, adds doctors of
                   optometry and licensed dentists to article 2152 of the Insurance Code. The
                   provisions relating to dentists apply only to insurance policies delivered,
                   renewed or issued for delivery more than ninety days after the effective
                   date of House Bill 860.

                         The Code Construction      Act,      article   5492b-2,   V.T.C.S.,   provides as
                   follows:




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     Honorable W. P. Daves         -   Page Two     (MW-73)



                  . . . if amendments to the same statute are enacted at the same
                  session of the legislature, one amendment without reference to
                  another, the amendments shall be harmonized if possible, so that
                  effect may be given to each. If the amendments are irreconcilable,
                  the latest in date of enactment prevails.

      Sec. 3.05(b).    See also Attorney General Opinion H-838 (1976).

             In our opinion, the provisions relating to the inclusion of various practitioners within
      article 2152 are not inconsistent, but are cumulative of one another. Thus, article 2152
      Will apply to doctors of podiatric medicine, optometry, and chiropractic, and to licensed
      dentists as well.

            It has been suggested that House Bill 291 may be applicable to existing policies
      issued prior to the effective date of the bill and that it may therefore be unconstitutional
      because of its impairment of the obligation of a contract. -See U.S. Const. art. I, § 10, cl.
      I; Tex. Const. art. I, 5 16.

               It is a cardinal rule of statutory construction that a statute must be presumed to be
         valid and that all doubts as to its constitutionality are to be resolved in favor of
         constitutionality.    Smith v. Davis, 426 S.W.2d 827 (Tex. 19681: Duncan v. Gabler, 215
         S.W.2d 155 (Tex. 1948); & Dmtc TSmith, 441 S.W.2d 544 (Tex. ~&~~~     im. ADD.
                                                                                    ~=~. 1969): . .._
                                                                                         ~~ ~. Texas
‘_ ‘---~ Optometry Board v. Lee ! ‘ision Center, Inc., 515 S.W.2d 380 (Tex. Civ. App. - I&?=          i
         1974, writ ref’d nr.e.).

            It is also a guiding rule of statutory construction with respect to a statutory
      amendment that original provisions of an amended act are regarded as being effective
      from the date of enactment, and that new provisions are to be construed as having been
      enacted at the time that the amendment took effect.     Therefore, it is presumed that an
      amendment is prospective in aonlication unless the terms of the statute clearlv mandate
      retrospective application. American Surety Co. of New York v. Axtell Co., 36 S.W.2d 715
      (Tex. 193% City of Corpus Christi v. Herschbach, supra.

            In Trinity Universal Insurance Co. v. Rogers, 215 S.W.2d 349, 352 (Tex. Civ. App. -
      Dallas 1948, no writ), the court stated:

                      The renewal of a policy is a new contract of insurance and ‘cannot
                      be effected or consummated without the mutual assent of the
                      parties; Le., a meeting of the minds as to the essentials of the
                      contract.’
           .
            In Harrington v. Aetna Casualty & Surety Co., 489 S.W.2d 171,176 (Tex. Civ. App. -
      Waco 1972, writ ref’d n.r.e), the court stated: “It is the general rule that a renewal of a
      policy constitutes a separate and distinct. contract for the periods of time covered by the
      renewal.”

            House Bill 291 applies to policies delivered, renewed or issued for delivery although
      it does not specifically indicate whether it applies to previously issued policies or only to




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.


    Honorable W. P. Daves    -    Page Three   (blw-73)



    those issued after the statute became effective.      It is our opinion that House Bill 291
    applies only to policies issued, delivered or renewed after August 27, 1979, which was the
    effective date of the Act, and does not impair the obligation of any existing contract.

          House Bill 291 and House Bii 860 provide for compliance “by the use of riders and
    endorsements which have been approved by the State Board of Insurance or by the filiig of
    new or revised policy forms for approval by the State Board of Insurance.” House Bill 291
    states that policies “shall” be brought into compliance by these specified means, while
    House Bill 860 states that policies “may” be brought into compliance by these specified
    means. Senate Bill 96 states that a policy form “may be brought into compliance with this
    Act by the use of riders and endorsements which have been approved by the State Board of
    Insurance,” and that language is identical to the language of article 2152 of the Texas
    Insurance Code prior to the amendments in question.

          It is our opinion that these provisions are not in conflict, as they merely set forth
    alternative methods by which existing policy forms may be brought into compliance with
    the statute, as amended.

                                           SUMMA’RY

               The provisions of House Bill 291, House Bill 860, and Senate Bill 96
               amending article 2152 of the Insurance Code can be harmonized.
               On the effective date of these amendments, new insurance policies
               subject to article 2L52 of the Insurance Code applied to doctors of
               chiropractic medicine and licensed dentists, as well as to doctors of
               podiatric   medicine and doctors of optometry;        however, the
               provisions relating to dentists apply only to insurance policies
               delivered, renewed, or issued for delivery more than ninety days
               after the effective date of House Bill 860.,




                                                    MARK     WHITE
                                                    Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    TED L. HARTLEY
    Executive Assistant Attorney General

    Prepared by Susan Garrison
    and Nancy Ricketts
    Assistant Attorneys General




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                      Honorable W. P. Daves   -   Page Four        ita+73)



                      APPROVED:
                      OPINION COMMITTEE

                      C. Robert Heath, Chairman
                      David B. Brooks
                      Bill Campbell
                      Susan Ga@on
                      Bob Gauss
                      Rick Gilpin
                      William G Reid
                      Nancy Ricketts
                      Bruce Youngblood




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