DAN MORALES 

ATTORNEY GENERAL 

QBffice of the JZlttornep 

SBtate of IEexarc 

October IS,1993 

@eneral 

David R Smith, M.D. 

commissioner 

Texas Department of Health 

1100 west 49th street 

Austin, Texas 78756-3 199 

Opinion No. DM-263 

Re: Whether House Bii 241. Acts 1993, 

73d Leg., ch. 251. prohibits the Texas 

Department of Health Tom requiring an 

eammation for recutiScation of emergency 

medical service perso~el (RQ-580) 

Dear Dr. smith: 

You ask whether House Bii 241, Acts 1993,73d Leg., ch. 251 (effective May 23, 

1993), prohibits the Texas Department of Health (the “department”) from requiring an 

examu&on for recerthication of Bmergency Medical Service (“EMS”) perso~el. The 

licmsing and certification of BMS personnel is governed by subchapter C of chapter 773 

of the Health and Safety Code. Prior to the enactment of H.B. 241, section 773.050(b) 

requid the Texas Board of Health (the “board”) to establish minimum standards for, 

among other things, “emergency medical services personnel certitlcation and performance, 

including cutitication, decerthication, mcerbfication, suspension, emergency suspension, 

and probation.” Health & Safety Code 5 773.050(b)(2). Section 773.055 provided for 

fees to accompany each application for examination for EMS personnel certhication, 

including examinations for moutification. 

As originally introduced, H.B. 241 deleted the board’s authority to establish 

minimum standards for EMS recerti6cation from section 773.050(b)(2), and omitted all 

reikrences to recerthlcation exanktions in section 773.055. It also rep&xi section 

773.059 which imposed “a fee of $25 in addition to the examination fee” on persons 

applying for recertitication after the expiration of his or her certilicate. 

The howe committee substitute bii, recommended by the House Committee on 

Public Health on March 19, 1993, did not affect section 773.050. It amended section 

773.055 to delete references to recerthlcation examinations and to provide for fees for 

recerti6cation, and amended section 773.059(a) to omit any refbrence to an examim&on 

fee. The bii analysis for the house committee substitute bii states that H.B. 241 “would 

remove the requirement of an examination from the recerdfication process.” House 

Comm. on Public Health, Bii Analysk, RB. 241,73d Leg. (1993). In comparing H.B. 

241 and the house committee substitute, the bii analysis states, “HB 241 deleted 

authorization for the Department of Health to collect a $75 fee for rec&itIcation of EMS 

perso~el. CSHB 241 authorizes the Department of Health to collect the fee.” Id. at 2. 

p. 1378 
David R. Smith, M.D. - Page 2 (DM-263) 

H.B. 241 was considered by the Senate Health and Human Services Committee on 

May 4, 1993. Senator Zafhrini, the senate sponsor, moved to amend the big and to adopt 

a new senate committee substitute big, which was identical to the prior version of H.B. 

241, with the exception that it added the following provision to section 773.050(b): 

The board by rule shall establish minimum standards for: 

. 

(4) continuing education programs and examinations of 

emergency medical services personnel. 

The Senate Research Center bill analysis states that the senate committee substitute 

“removes the requirement of an examination from the recertification process of emergency 

medical services personnel.” Senate Health and Human Services Comm., Bill Analysis, 

C.S.H.B. 241, Senate Research Center, May 7, 1993. The senate committee substitute bill 

was enacted without any subsequent amendments. 

There now appears to be some dispute regarding whether H.B. 241, particularly 

the provision added by the senate committee substitute, authorizes the department to 

require an examination for recerti&ation of EMS personnel. Because it deletes references 

to mandatory recerthication examinations and does not expressly provide that the 

department is permitted to require a recertification examination, but provides that the 

department “shah establish minimum standards for. . continuing education programs and 

examidons of emergency medical services personnel,” H.B. 241 on its face is 

ambiguous. The Code Construction Act provides in part that “[i]n construing a statute, 

whether or not the statute is considered ambiguous on its face, a court may consider 

among other matters the: (1) object sought to be attained; (2) circumstances under which 

the statute was enacted; [and] (3) legislative history. .‘I Gov’t Code $311.023. 

Prior to the enactment of H.B. 241, chapter 773 of the Health and Safety Code 

mandated the department to impose an examination for recertification of EMS personnel. 

As originally introduced, H.B. 241 would have prohibited the department from doing so. 

Although the Senate Research Center bill analysis is as ambiguous as the senate committee 

substitute bill, it is apparent from the testimony of the many witnesses who testified before 

the Senate Health and Human Services Committee that the senate committee substitute 

bill was a compromise that was intended to authorize, but not mandate, the department to 

require an examination for recertification. The representative for the Texas Ambulance 

Association, for example, testified that 

We have agreed to an amendment which does exactly what we all 

wanted the legislation to do. And that was to remove the 

requirement of the examination by statute and to place it back to the 

Board of Health to adopt rules relating to certification, recertification 

of EMS personnel and that process may very well include an exam. 

p. 1379 
David R Smith, M.D. - Page 3 (DM-263) 

Hearings on H.B. 241 Before the Senate Comm. on Health and Human Serv., 73d Leg. 

(May 4, 1993) (transcript available from Senate Staff Services). The department’s general 

counsel also testified about the amendment, stating that “there was some concern that by 

moving the mandatory testing requirement that’s currently in the statute that [the prior 

version of the bill] could be construed as legislative intent, that there could be no testing 

for recertification.” Id. at 2. Although she mistakenly asserted that the intent of the prior 

version of the bill “was to give the authority to the Board of Health to determine when 

testing was appropriate for recertification,” id., it is also clear from her testimony that the 

purpose of the senate committee substitute was to prevent the bill from being construed 

“to bar the Board of Health from putting in [a] test if it was appropriate,” id She further 

stated: “p]ight now there is a required retest in all [EMS personnel] categories [but] it 

may be determined down the line that perhaps retesting is not appropriate for every level, 

or perhaps that testing could be accomplished in a different venue[,J perhaps through a 

more rigorous continuing education program. So this we felt would be a way to ensure 

that we have the option for retesting and that’s clearly stated in the law.” Id, 

Other witnesses’ testimony also suggested that the purpose of the amendment was 

to give the department the discretion to decide whether to require an examination for the 

recertification of EMS personnel. The representative of the EMS Advisory Council stated 

that the bill 

as it was written had raised some concerns for us in that it appeared 

that the intent of the law [w]as to eliminate all recerthication testing 

and we felt like that was a premature move that needed to be 

examined carefully. . . [TJiis language does I think leave the 

decisions. at the level where they should be and that is [with] the 

advisory counsel [sic] and the Board of Health. . [I] hope 

that. their judgment and wisdom will . prevail as to when it’s 

appropriate for the testing to be modified or changed. 

Id. at 5. Similarly, the representative of the Texas College of Emergency Physicians 

testified that the purpose of the amendment was to “move this issue back to the Texas 

Department of Health and the Texas Emergency Services Advisory Committee.” Id. at 7. 

Based on the foregoing testimony, we believe that the intent of the senate 

committee substitute was to authorize, but not mandate, the department to require an 

examination for recertification of EMS personnel. Because the purpose of the senate 

committee substitute was to provide the department with the discretionary authority to 

require an examination for recertification, we conclude that H.B. 241 does not prohibit the 

department from exercising such authority. 

Finally, we also note that it has been suggested that H.B. 241 is unconstitutional 

under article III, section 30 of the Texas Constitution because the bill as passed does not 

completely eliminate the department’s authority to require an examination for 

recertification of EMS personnel as its author intended. That constitutional provision 

provides in pertinent part that “no bill shall be so amended in its passage through either 

p. 1380 
David R. Smith, M.D. - Page 4 (DM-263) 

House, as to change its original purpose.” Tex. Const. art III, 4 30. We do not believe 

that a court would conclude that H.B. 241 NIB afoul of this prohibition. 

First, a court might conclude that the intent of the senate committee substitute, to 

give the department the discretionary authority to require an examination for 

recertitkation, in addition to removing the mandatory requirement, was not inconsistent 

with the biis original purpose. More importantly, even if a court were to conclude that 

the intent of the senate wmmittee substitute was wmpletely wntrary to the original intent 

of H.B. 241, it is well-established that courts will not “go behind [a] bill, signed, enrolled, 

and approved by the governor, to inquire into the changes which it underwent while 

passing the legislature.” Hoaram & T.C. R.R. Co. v. Stuart, 48 S.W. 799, 804 (Tex. Civ. 

App. 1898), r&d on other grounak, 50 S.W. 333 (Tex. 1899) (citing cases). As one 

court stated in response to a challenge to legislation under article III, section 30: 

If a change in the original purpose of the legislation were made 

to appear, it was shown only by evidence aliunde the enrolled bill 

fil~dwith.th~,~,~~~P,,snnthp,~dp,is.~~in.th~rtcltp, 

that its validity cannot be so impeached. 

Jinnesv. GulfIns Co., 179 S.W.2d 397, 402 (T’ex. Civ. App.-Austin 1944), rev’d on 

orher groana& 185 S.W.2d 966 (Tex. 1945) (citing cases). A commentator has explained 

that article III, section 30, “is not enforceable by the wurts because the enrolled bill 

doctrine shields its noncompliance from judicial review.“1 1 D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPAIWNE ANALYSIS 162 

(1977) (citations omitted). For this reason, we do not believe that a court would conclude 

that H.B. 241 violates article III, section 30 of the Texas Constitution. 

SUMMARY 

House Bill 241, Acts 1993,73d Log., ch. 251, does not prohibit 

the Texas Department of Health from requiring an examination for 

recertification of emergency medical service personnel. 

DAN MORALES 

Attorney General of Texas 

‘The cmunentator goes on to note that “[a] aoagemsne amendment to a bill is subject to point 

of order objection, however, aad the n&s of both homes contain several pages digesting rulings on this 

slippery question.’ 1 D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND 

C~MPARA~VE ANALYSIS 162 (1977) (citations omitted). 

p. 1381 
David R Smith, M.D. - Page 5 (DM-263) 

WILL PRYOR 

Fist Assistant Attorney General 

MARY KELLER 

Deputy Attorney General for Litigation 

RENEA HICKS 

State Solicitor 

h4ADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

p. 1382