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 7871 l-2668 

Opinion No. DM-475 

Re: Whether chapter 597 of the Health and Safety 

Code expired on August 3 1, 1997, and a related 

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 1 X102). 

‘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 cm May 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 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 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 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, THE CONSTITUTION OF THE STATE OF ms: AN ANNOTATED AND COMPARATIVE 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 

p. 2689