                                   QEWce of tfje Bttornep    @eneral
                                           State of Z!Cexalr
DAN MORALES
 ATTORNEY
      GENERAL                                            April 14, 1998

   Mr. Don A. Gilbert                                              Opinion No. DM-475
   Commissioner, Texas Department of
    Mental Health and Mental Retardation                           Re: Whether chapter 597 of the Health and Safety
   P.O. Box 12668                                                  Code expired on August 3 1, 1997, and a related
   Austin, Texas 7871 l-2668                                       question (RQ-1030)

   Dear Mr. Gilbert:

            You inquire about chapter 597 of the Health and Safety Code, adopted by the legislature in
    1993,’ providing that “surrogate decision-makers” could consent to major medical or dental
   treatment for certain clients of a community-based ICF-MR facility.Z Section 597.055 of the Health
   and Safety Code provided that chapter 597 would expire on August 31, 1997. In 1997, the
   legislature adopted Senate Bill 85 to amend portions of chapter 597 and repeal the expiration clause,
   but this bill did not become effective until September 1, 1997.’ Although section 11 of Senate Bill
   85 contains an emergency clause purporting to make the bill effective upon passage: the bill passed
   the House of Representatives by a non-record vote, and, pursuant to article III, section 39 of the
   Texas Constitution,s it did not take effect until the ninety-first day after adjournment of the
   legislature, or September 1, 1997.

          You are concerned that the expiration clause of chapter 597 may have taken effect,
   with the result that chapter 597 would no longer exist, except for the provisions set out in Senate
   Bill 85. Accordingly, you ask whether chapter 597 of the Health and Safety Code expired on
   August 3 1,1997. You also ask about the effect that Senate Bill 85 has on the status of chapter 597.




            ‘Act of May 21, 1993,736       Leg., R.S., ch. 530,s   1, 1993 Tex. Gen. Laws 2006.2006.

             z“ICF-MK’ is defmed as “the medical assistance program serving persons with mental retardation who receive
   care in intermediate care facilities.” Health & Safety Code g 597.00 I(4) (incorporating defmition in Health & Safety
   Code 5 53 1X102).

            ‘Act ofMay     16, 1997.7Sth   Leg., R.S., ch. 450, 1997 Tex. Gen. Laws 1745, 1747.

            ‘Senate Bill 85 was passed by the Legislature on May 16.1997 and signed by the Governor cm May 30.1997.
   Id.


             JArticle III, section 39 of the Texas Constitution provides that no law, except the general appropriation act, shall
   take effect until ninety days after the adjoummwt of the session, unless in case of an emergency, which must be
   expressed in the act, the legislature shall otherwise provide by a hvo-thirds record vote of each house.
Mr. Don A. Gilbert - Page            2                     (DM-475)




        Senate Bill 85 set out the sections of Health and Safety Code, chapter 597, that it amended,
but it did not set out the chapter at length. This raises an issue under article III, section 36 of the
Texas Constitution, which provides that a law may not be revived without reenacting it and
publishing it in full:

                  No law shall be revived or amended by reference to its title; but in such
              case the act revived, or the section or sections amended, shall be re-enacted
              and published at length. [Emphasis added.]

         If Senate Bill 85 attempted to “‘revive”a repealed or expired act, it would be invalid pursuant
to this constitutional provision6 However, we believe that Senate Bill 85 did not attempt to revive
chapter 597 of the Health and Safety Code and therefore is not invalidated by article IlI, section 36.’
Our view of this question is supported by a case from another jurisdiction, Milk Control Bd. v.
Pursifull, 36 N.E.2d 850 (Id. 1941).

         Milk Control Bourd v. Purszjidl addressed the Indiana Milk Control Law, which included a
provision stating that it would expire on June 30, 1941. In 1941, the Indiana General Assembly
amended it and extended the expiration date to June 30, 1943. The governor approved the
amendment on March 11,1941, but the bill did not include an emergency clause and did not become
effective until July 8,1941, over a week a&r the expiration date. The Supreme Court of Indiana had
previously held “that an act is invalid which purports to amend a statute which has been repealed,
or which has been judicially declared invalid in its entirety.“* In Milk Control Board v. Purszjidl,




         ‘See i%omm v. Groebl. 212 S.W.2d 625,631-32 (Tex. 1948); State BankofBarkrdale      v. Cloudt, 258 S.W. 248,
249 (Tex. Civ. App.-San Antonio 1924, no writ). Sutherland states that “all courts hold that a repealed act cannot be
amended,” and “[n]o COUIIwill give the attempted amendment the effect of reviving the repealed act.” SUTHERLAND
STAT. CONST.5 22.03 at 177-78 (5th ad.).

          ‘Sutherland states as follows: “In contrast with the rule concerning amendment of repealed statutes, there is
no question about the amendability of a statute which has lapsed by operation of its own terms.” SUTHERLAND       STAT.
CONST.$ 22.03 at 178 (5th ml.). Sutherland cites the following cases for this statement: Milk Conrrol Bd. Y. Pursifull,
36 N.E.2d 850 (Ind. 1941); State a rel. Daws v. Bailey 42 P. 373 (Km. 1895); Fenofio v. Sebastian Bridge Dia., 200
S.W. 5 10 (Ark. 1917). The latter two cases involve statutes that were effective for only two years but did not include
express expiration clauses.

         ‘Milk Control Bd. v. Pursifull, 36 N.E.2d 850,851      (Ind. 1941). At the time the Indiana Supreme Court decided
Milk Confrol Board Y. fursifill,     the Indiana Constitution provided that “[n]o act shall ever be revised or amended by
mere reference to its title; but the act revised, or section amended, shall be set forth and published at fall length.” Ind.
Const. art IV, 5 21 (repealed November 8, 1960). The Indiana Supreme Court did not refer to the constitutional
provision, but relied on a wmmon law statement of the same rule.


                                                         P.   2686
Mr. Don A. Gilbert - Page 3                         (DM-475)




however, the court emphasized that the original law was still in force when the legislature adopted
the amendment:

                In the instant case the 1941 amendatory act was duly passed by both
            houses of the General Assembly, was signed by the presiding officers of the
            respective houses and on March 11,194 1, it was approved by the Governor.
            At that time the Milk Control Law was in force and subject to amendment by
            the legislature. . . . The approval of the amendatory act by the Governor
            on March 11, 1941, was the last necessary step in the legislative process. It
            was then a duly enacted law of the General Assembly. Nothing remained but
            the administrative acts of the Secretary of State in distributing copies of the
            printed acts and of the Governor declaring them effective. . . . Should the
            delay in performing these purely administrative acts be permitted to thwart
            the purpose and intention of the Legislature?9 [Citation omitted] [Footnote
            added].

Accordingly, the amendment was a duly enacted law of the Indiana General Assembly prior to the
June 30, 1941 expiration date. The court distinguished other cases on the ground that the original
statute had already been repealed at the time the legislature adopted the amendment. “In other
words, while the amendatory act was still in the legislative process of enactment there was no
original law to amend.“‘O

        The Milk Control Board opinion indicates that compliance with provisions like article III,
section 36 of the Texas Constitution is to be determined at the time the Legislature acts on the
amendment. The purpose of section 36 is to give notice to members of the Legislature of the subject
to be affected by the proposed act. ” As a commentator on this provision has stated:

            Section 36 is primarily intended to prohibit blind amendments to existing
            statutes. (Snyder V. Compfon, 87 Tex. 374,28 S.W. 1061 (1894)). A blind
            amendment merely cites the statute to be amended and then proceeds to set
            out the amendatory language alonefor example: “Substitute ‘$1,000’ for
            ‘$200’ in the third line of Section 7.“”




       ‘Milk Control Bd.. 36 N.E.2d at 851-53




        “fipcrrre   En&, 128 S.W.2d 1174,1175   (Tex. Crim. App. 1939).

       ‘*l G. BRADEN,THECONSTITUTION
                                   OFTHESTATEOFms:                 AN ANNOTATEDANDCOMPARATIVE
                                                                                            ANALYSIS
174(1977).

                                                    p.   2607
Mr. Don A. Gilbert - Page 4                               (DM-475)




Article III, section 36 is not given a “rigid effect,” but is construed according to the spirit of its
restrictions and “in the light of the evils to be suppressed.“‘)

        The purpose of this constitutional provision-to         provide notice to the legislature-is
accomplished when the legislature enacts the amendment. Since chapter 597 of the Health and
Safety Code was in effect and easily accessible when the legislature amended it, the policies
underlying section 36 were fully served by the usual form of amendment. No purpose of article III,
section 36 is served if we defer applying it until the effective date of the amendment.

        The general rule that a statute “speaks from” its effective dateI does not apply to the
construction of article III, section 36. The effective date is significant for purposes of determining
when a statute affects the public, but not for evaluating notice to the legislature at the time it
amended a statute.‘s For example, where two irreconcilable statutes are adopted at the same session
of the legislature, we look to the last legislative action rather than the effective dates to determine
which statute prevails.‘6

        We believe that Senate Bill 85 complied with the requirements of article III, section 36 of
the Texas Constitution. The legislature’s intent in adopting this bill was to repeal Health and Safety
Code section 597.055 and to make certain amendments to the text of chapter 597, Health and Safety
Code, as it existed on May 16, 1997. Senate Bill 85 expressed this intent as fully for purposes of
article HI, section 36, as if it had set out the amended chapter 597 in its entirety. Senate Bill 85 had
the effect of removing section 597.055 from chapter 597 of the Health and Safety Code and of
amending various other provisions of this chapter. Accordingly, chapter 597 continues to exist as
amended by Senate Bill 85 of the Seventy-fifth Legislative session.




         ‘JQuinlan v. Howfon   & T.C. Ry. Co., 34 SW. 738, 740 (Tex. 1896)

        “Missouri. K. & T. Ry. Co. of Texas v. Slate. 100 SW. 766,767-78     (Tex. 1907); City of Housfon v. Harris
County Outdoor Advertising Assoc., 732 S.W.2d 42,56 (Tex. App.--Houston      [ 14th Dist.] 1987, no wit); Trio tndep.
Sch. Disr. v. Sabinal Indep. Sch. Dist., 192 S.W.2d 899,900   (TM. Civ. App:-Waco 1946, no writ).

         ?See Deacon v. City ofEulers. 40s S.W.2d 59.63 (Tex. 1966) (distinguishing cases cited for rule that stahlte
does not give notice before its effective date on ground that they dealt with private rights).

         ‘6Gov’tCode $5 311.025,312.014;    ExporfedeJerusdela      0.. 227 S.W.Zd 212,213   (Tex. Grim. App. 1950).



                                                     P.    2688
Mr. Don A. Gilbert - Page 5                     m-l-475)




               Chapter 597 of the Health and Safety Code was adopted in 1993 to
           provide for “surrogate decision-makers” to consent to major medical or
           dental treatment for certain clients of community-based ICF-MR facilities.
           Section 597.055 of the Health and Safety Code provided that the chapter
           would expire on August 31, 1997. Senate Bill 85 of the Seventy-fifth
           Legislature, which repealed the expiration clause and amended other portions
           of chapter 597, became effective on September 1, 1997.

               Senate Bill 85 complied with article IlI, section 36 of the Texas
           Constitution, which provides that no law shall be revived or amended by
           reference to its title, but the act revived or sections amended shall be
           reenacted and published at length. Compliance with article III, section 36 is
           to be determined as of the bill’s adoption by the legislature and not as of its
           effective date. When Senate Bill 85 was adopted on May 16, 1997, it
           affected an existing statute. Senate Bill 85 had the effect of removing section
           597.055 from chapter 597 of the Health and Safety Code and of amending
           various other provisions of this chapter. Accordingly, chapter 597 continues
           to exist as amended by Senate Bill 85 of the Seventy-fifth Legislative session.




                                              DAN MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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