### DAN MORALES

ATTORNEY GENERAL 

### QEWce of tfje Bttornep @eneral State of Z!Cexalr April 14, 1998 Mr. Don A. Gilbert Commissioner, Texas Department of Mental Health and Mental Retardation P.O. Box 12668 Austin, Texas 7871l-2668 Opinion No. DM-475 Re: Whether chapter 597oftheHealth and Safety Code expired on August 31, 1997, and a related question (RQ-1030) Dear Mr. Gilbert: You inquire about chapter 597ofthe Health and Safety Code, adopted by the legislature in 1993,’ providing that “surrogate decision-makers” could consent to major medical or dental treatment forcertain clients ofacommunity-based ICF-MR facility.Z Section 597.055 ofthe Health and Safety Code provided that chapter 597 would expire on August 31, 1997. In 1997, the legislature adopted Senate Bill 85toamend portions ofchapter 597andrepeal the expiration clause, but this bill did not become effective until September 1, 1997.’ Although section 11of Senate Bill 85contains an emergency clause purporting tomake thebill effective uponpassage: thebill 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 31,1997. You also ask about the effect that Senate Bill 85has 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.
Id. ‘Senate Bill 85 was passed by the Legislature on May 16.1997 and signed by the Governor cmMay 30.1997.

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 85set out the sections ofHealth 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 itin full:

No law shall be revived or amended by reference to its title; but in such case the actrevived, or the section or sections amended, shall be re-enacted and published at length. [Emphasis added.] IfSenate Bill 85attempted to “‘revive”arepealed orexpired act,itwould be invalid pursuant tothis constitutional provision6 However, webelieve that Senate Bill 85did not attempt to revive chapter 597ofthe Health and Safety Code and therefore isnot invalidated by article IlI, section 36.’ Our view of this question is supported by a case from another jurisdiction, Milk Control Bd. v. Pursifull, 36N.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, butthebill did not include an emergency clause and did not become effective until July 8,1941, over aweek a&r the expiration date. The Supreme Court ofIndiana had previously held “that an act is invalid which purports to amend a statute which has been repealed, or which has beenjudicially declared invalid in its entirety.“* InMilk 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 COUII will 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 ownterms.” SUTHERLAND STAT. CONST. $ 22.03 at 178 (5th ml.). Sutherland cites the following cases for this statement: Milk Conrrol Bd. Y. Pursifull, 36N.E.2d 850 (Ind. 1941); State a rel. Daws v. Bailey 42 P. 373 (Km. 1895); Fenofio v. Sebastian Bridge Dia., 200 S.W. 510 (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. 2686Mr. 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 ofthe General Assembly, was signed by the presiding officers ofthe respective houses and on March 11,194 1,itwas approved by the Governor. At that time the Milk Control Lawwas in force and subject toamendment 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 wasthen aduly enacted lawofthe General Assembly. Nothing remained but the administrative acts ofthe 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 bepermitted to thwart thepurpose and intention of the Legislature?9 [Citation omitted] [Footnote added]. Accordingly, the amendment was aduly enacted law of the Indiana General Assembly prior to the June 30, 1941expiration 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. Thepurpose ofsection 36isto give notice to members ofthe Legislature ofthe subject tobe affected by the proposed act.” As acommentator on this provision has stated:

Section 36 is primarily intended to prohibit blind amendments to existing statutes. (Snyder V.Compfon, 87Tex. 374,28 S.W. 1061 (1894)). Ablind amendment merely cites the statute tobe 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.2dat851-53
“fipcrrre En&, 128 S.W.2d 1174,1175 (Tex. Crim. App. 1939).

‘*l G.BRADEN,

THECONSTITUTION

OF THE STATE OF ms: ANANNOTATED ANDCOMPARATIVE

ANALYSIS 174(1977). p. 2607Mr. 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 ofthe evils tobe 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 36were fully servedby the usual form ofamendment. Nopurpose of article III, section 36 is served ifwe defer applying ituntil the effective date ofthe amendment. The general rule that a statute “speaks from” its effective dateI does not apply to the construction ofarticle III, section 36. The effective date is significant forpurposes ofdetermining when a statute affects the public, but not for evaluating notice to the legislature at the time it amended astatute.‘s For example, where two irreconcilable statutes are adopted atthe same session ofthe legislature, we look to the last legislative action rather than the effective dates to determine which statute prevails.‘6 We believe that Senate Bill 85complied with the requirements of article III, section 36 of the Texas Constitution. The legislature’s intent in adopting this bill was torepeal Health and Safety Code section 597.055 and to make certain amendments to the text ofchapter 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, asifithad setout the amended chapter 597 inits entirety. Senate Bill 85had 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 85ofthe 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. 2688Mr. 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 otherportions ofchapter 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 andpublished atlength. Compliance with article III, section 36 is tobe determined as ofthe bill’s adoption by the legislature and not asof its effective date. When Senate Bill 85 was adopted on May 16, 1997, it affected anexisting statute. Senate Bill 85had the effect ofremoving section 597.055 from chapter 597 ofthe Health and Safety Code and of amending various other provisions ofthis chapter. Accordingly, chapter 597 continues toexistasamended by SenateBill 85ofthe Seventy-fifth Legislative session.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General

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