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                            August 18, 1989




    W. N. Kirby, Ph.D.          Opinion No.   JM-1086
    Commissioner of Education
    Texas Education Agency      Re:   Effective date of section 7
    1701 North Congress Ave.    of   House    Bill   2566,  which
    Austin, Texas 78701-1494    revises the teacher career ladder
                                statutes   (RQ-1773)

    Dear Dr. Kirby:

         You.-- ~~~~~ about the effective date of one section of
              inquire
    House Bill 2566, adopted by the 71st Legislature to revise
    the statutes governing the teacher career ladder. A copy  of
    the bill signed by the Governor includes the following pro-
    vision:

               SECTION   23. This    Act    takes effect
            September 1, 1989, except that Section 7
            takes effect September 1, 1990.

    H.B. 2566, Acts 1989, 71st Leg., ch. 585, § 23, at 1946.

          Section 7 of House Bill 2566 amends section 13.309 of
    the Education Code, the provision stating the requirements
    for entering level three of the teacher career ladder, by
    raising the standard of performance     required to achieve
    level three.     The amended version    requires  a "clearly
    outstanding performance *Iduring the current year and one of
    the preceding two years, where the original version requires
    only "performance   exceeding expectations"  during three of
    the preceding four years. Section 23 as quoted above would
    delay the imposition of the new criteria until September  1,
    1990.

         However, the effective date provision included in the
    conference committee  report for House Bill 2566 provides
    that "Section 5 . . . takes effect September      1, 1990."
    Section 5 amends section 13.307 of the Education Code, which
    states the requirements   for entering    level one of the
    teacher career ladder. A letter to you from the Speaker of
    the House, the Lieutenant Governor,       the House    Public
    Education  Committee  and the Senate Education      Committee
    accounts for this discrepancy as follows:




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Dr. W. N. Kirby - Page 2 (JM-1086)
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             An examination of the files on this bill
          shows that the      text of the     conference
          committee report as laid before and adopted
          by both houses applied the September 1, 1990,
          effective date to Section     5 of the bill
          rather than Section    7.   The reference   to
          Section 7 came about exclusively as a result
          of an editorial change made in the process of
          enrolling the bill.    But for that editorial
          change, there would be no internal   inconsis-
          tencies in the text of the bill.

        The letter suggests that the Texas Education   Agency
could    reasonably  begin to implement the changes in level
three    made by section 7 on September 1, 1989. The State
Board    of Education has directed you to request our opinion
as to    the effective date of section 7.

     The version   of House Bill 2566 that postpones        the
effective date of section 7 until September 1, 1990, is an
enrolled bill. It was signed by the President of the Senate
and the Speaker of the House, approved by the Governor,     and
filed in the Office of the Secretary of State. See Tex .
Const. art. III, 5 38; Ellison v. Texas Liauor Control     Bd.,
154 S.W.Zd 322, 326 (Tex. Civ. App. - Galveston 1941, writ
ref'd).   In reviewing statutes, the Texas courts follow the
"enrolled bill rule, I1which holds that a duly authenticated,
approved, and enrolled statute imports absolute verity      and
is conclusive    that    an act was      passed  according   to
constitutional        requirements.        Beckendorff       V.
Harris-Galveston Coastal Subsidence      Dist., 558 S.W.2d 75
(Tex. Civ. App. - Houston      [14th Dist.] 1977), writ ref'd
n.r.e. ver curiam,    563 S.W.2d 239   (Tex. 1978). One court
has stated the rule as follows:

          [A]n act passed by the Legislature, signed by
          the proper officers of each house,   approved
          by the Governor,  or passed notwithstanding,
          and filed in the office of the Secretary   of
          State, constitutes a conclusive record of the
          passage of the act as enrolled. As against
          this record resort may    not be had to a
          proclamation of the Governor, to the terms of
          the bill    as   originally   introduced
          amendments thereto, to the journal of t;i
          Legislature, nor to par01 evidence for the
          purpose of impeaching or invalidating     the
          law.

Ellison,  suora, at   326   (citing Texas   Jurisprudence):
see also Jackson v. Walker,    49 S.W.2d 693   (Tex. 1932);
Beckendorff v. Harris-Galveston Coastal Subsidence    Dist.,




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Dr. W. N. Kirby - Page 3 (JM-1086)




suora; cq
       Nue es                 350 S.W.2d 385 (Tex. Civ. App.
- San Antonio 1961, writ ref:d); Falkner v. Memorial Gardens
Assoc., 298 S.W.2d 934 (Tex. Civ. App. - Austin 1957, writ
ref*d n.r.e.).

     The conclusiveness of the enrolled bill rule is well
illustrated by the case of m,            SUI)L~B at 326.    An
amendment to the Texas Liquor Control Act was claimed to be
unconstitutional because the the House and the Senate did
not pass the same bill. The Senate amended the version
passed by the House, but the House refused to concur in the
amendments.   The bill was not returned to the Senate and the
Senate never adopted the House version.      The Senate did
adopt a resolution     stating that it receded      from   the
amendments and declaring that the bill had passed the Senate
in the same form in which it was received from the House.
The House version was approved by the Governor.    Because  of
the enrolled bill rule, the court refused to accept evidence
from the House Journal to prove that the law was not passed
by both houses of the Legislature,      as required by the
Constitution.   &8 Tex. Const. art. IV, 5 14; see also Tex.
Const. art. III, §§ 30, 32, 39; Ellison, suora, at 327
(dissenting opinion).

     The enrolled bill rule prevents us from looking to
parol evidence to prove that House Bill 2566 did not pass
the legislature in the form approved by the Governor.    We
cannot rely on the conference committee report to show that
section 7 of House Bill 2566 is effective on September   1,
1989.1



     1. If we were allowed to consider evidence that House
Bill 2566 was not adopted in accordance with correct
procedures, we would have to discuss the possibility      that
the conference    committee  report,   in placing   a delayed
effective date on section 5 of House Bill 2566, violated
House and Senate rules. The rules of both houses provide
that a conference committee shall have no authority to add
text which is not included in either the House or Senate
version of the bill. House Rule 14, 71st Leg., § 9(a) (4):
Senate Rule,   12.03(4). The House version provided for a
September   1, 1990 effective date for section        5,   the
Education Code provision    on level two entry, while the
Senate version applied the delayed effective date to section
7, pertaining   to level three entry.     C.S.H.B. 2566, 71st
ml. I § 22 (as passed by the House on May 9, 1989); C.S.H.B.
2566, 71st Leg., § 23 (as passed by the Senate on May 24,
1989). The conference committee      report, however,  delayed
                                          (Footnote Continued)



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Dr. W. N. Kirby - Page 4 (JM-1086)




     We next consider whether the rules of statutory     con-
struction require us to read the delayed effective date as
inapplicable to section 7.       See, e a    Attorney General
Opinions JM-1079   (1989); H-622   (1975):' You point out an
apparent conflict between section 23, the effective      date
provision, and sections 19 and 21 of the enrolled bill, and
you suggest resolving this conflict by reading the delayed
effective date provision as applicable to section 5, not
section 7.

     Section 19 of the enrolled bill reads as follows:

           SECTION 19. The changes in the eligibil-
        ity requirements for entry to a career ladder
        level made by     this Act, including     the
        required use of current year appraisals,
        apply to all teachers beginning     with the
        1989-1990 school year, regardless of whether
        a teacher was qualified for entry to a career
        ladder level in the 1989-1990    school year
        before the effective date of this Act.

H.B. 2566, Acts 1989, 71st Leg., ch. 585, 5 19, at 1945.

     Where there is an apparent conflict between two provi-
sions of a statute,    a court must give the statute      a
construction that will reconcile the provisions.    Hill v.
State, 114 S.W. 117 (Tex. Crim. App. 1908).

     Section 23 excepts teachers who are ready to enter
level three from the general requirement stated in section
19. Section 19 still has effect, because section 13.308 of
the Education  Code has been amended to require use of
current year appraisals for teachers entering level two of
the career ladder.   H.B. 2566, Acts 1989, 71st Leg., ch.
585, § 6 at 1942; see also a.    5 9, at 1943.    (delaying



(Footnote Continued)
implementation of section 5, the provision on level one
entry. Conference Committee Report H.B. 2566, 71st Leg.,
s 23. In this respect, the Conference      Committee  Report
departed from both the House and the Senate versions      of
House Bill 2566.     Because of the enrolled bill rule,
however, we need not consider the effect of this departure,
nor whether the change made during enrolling was intended as
correction of an error.   cf. Davis v. State, 225 S.W. 532
(Tex. Crim. App.  1920) (clerical correction of a bill by
resolution before bill was signed by presiding officers   of
each house).



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    Dr. W. N. Kirby - Page 5 (JM-1086)




    entry of any teacher to level four until after September   1,
    1991, to be codified as Educ. Code 5 13.3101).

         We next consider the apparent    inconsistency  between
    section 21 and section 23 of House Bill 2566. Our task is,
    again, to harmonize  the provisions of the statute so that
    all provisions   will be effective.     &g   Gov't Code    §
    311.021(2) (Code Construction   Act). Section 7 adds the
    following provision to section 13.309 of the Education Code:

                (b) To enter level three, a teacher must
            submit a written application to be considered
            for placement on career ladder level three to
            the board of trustees of the school district
            or its designee not later than October 1 of
            the school year for which the application   is
            made.

    H.B. 2566, Acts 1989, 71st Leg., ch. 585, 5 7, at 1943.

    In accordance with section 23, this provision is effective
    September 1, 1990, and applies to the 1990-1991 school year
    and subsequent school years.

         Section 21(a) of House Bill 2566 provides in part:

            Wotwithstandina    anv  nrovision   to   the
            Gontrarv   for the 1989-1990 school year an
            application for placement on career ladder
            level three must be submitted not later than
            December 15, 1989.

    u.   5 21(a) at 1946. (Emphasis added.)

         The apparent conflict between   section 21(a) and the
    deferred effective date provided for section 7 by section 23
    is found in the language of section 21(a), emphasized above:
    "Notwithstanding any provision to the contrary . . . .'I We
    assume you read section 21(a) as making a one-year exception
    to the October 1 application  date established by section 7
    and that you believe it will be meaningless if section 7 is
    not in effect during the 1989-1990 school year.

         The lVnotwithstandingl' phrase does      not,   however,
    expressly refer to section 13.309(b) of the Education   Code,
    and it need not be read as if it does. It could refer to
    any provision of law that would authorize the State Board of
    Education or the board of trustees of a school district    to
    establish a different   deadline for submitting  applications
    for level three in the 1989-1990 school year. &g        Educ.
    Code § 13.302(a)    (State Board of Education    shall adopt
    appraisal process): see also Educ. Code 5 23.26 (power of



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Dr. W. N. Kirby - Page 6    (JM-1086)




trustees to manage and govern schools). Section 21 of House
Bill 2566 will be meaningful during the 1989-1990     school
year even if the October      1 deadline   for level three
applicants is not yet in effect.      We need not consider
whether section 21(a) could be construed as nullifying   the
express effective date that section 23 provides for section
7. s    aenerallv  Seav v. Hall 677 S.W.2d 19, 25 (Tex.
1984)eTthe  court must   find a' statute's   intent in its
language).

     Accordingly, section 21(a) is not in irreconcilable
conflict with the deferred    effective   date provision  in
section 23 of House Bill 2566.      Both provisions  can be
harmonized and given effect. Section    21(a) establishes  a
December 15 deadline   for applications   for career  ladder
level three submitted  in the 1989-1990 school year, while
the October    1 deadline  adopted by section 7      becomes
effective on September 1, 1990, and applies to the 1990-1991
school year and subsequent  years. The language of section
23 of House Bill 2566 is clear.    The amendment to section
13.309 of the Education Code adopted by section 7 of House
Bill 2566 takes effect September 1, 1990.

                           SUMMARY

                The amendment to section 13.309 of the
           Education Code adopted by section 7 of House
           Bill 2566 takes effect September 1, 1990.




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan Garrison
Assistant Attorney General




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