DAN MORALES

ATTORNEY GENERAL 

## QBffice of the JZlttornep SBtate of IEexarc October IS,1993 

## @eneral

David R Smith, M.D. commissioner TexasDepartment ofHealth 1100west 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 isgoverned 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 5773.050(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 ofhisor 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 ofHealth to collect a $75 fee for rec&itIcation ofEMS perso~el. CSHB 241 authorizes the Department ofHealth to collect the fee.” Id. at 2.

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H.B. 241 was considered bythe 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):

Theboard by rule shallestablish 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 ofemergency 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 wasenacted 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 ofEMS 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.

.‘IGov’tCode $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 ofEMS personnel. As originally introduced, H.B. 241 would have prohibited the department from doing so. Although the Senate Research Center bill analysis isasambiguous asthe senate committee substitute bill, itisapparent from the testimony ofthe many witnesses who testified before the Senate Health and Human Services Committee that the senate committee substitute billwas acompromise 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 ofthe examination by statute and to place itback to the Board ofHealth to adopt rules relating to certification, recertification ofEMS personnel and that process mayvery well include an exam.

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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 ofthe 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 ofthe 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 ofthe senate committee substitute was to prevent the bill from being construed

“to bar the Board ofHealth from putting in [a] test ifitwas 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 isnot 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 andthat’sclearly stated inthe 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 ofEMS personnel. The representative ofthe EMS Advisory Council stated that the bill

asit was written had raised some concerns for us inthat it appeared that the intent ofthe 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 ofHealth andthe TexasEmergency 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 ofthe 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

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House, as to change its original purpose.” Tex. Const. art III, 430. We do not believe that acourt would conclude that H.B. 241 NIB afoul ofthis 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 ifa court were to conclude that the intent ofthe senate wmmittee substitute was wmpletely wntrary to the original intent ofH.B. 241, it iswell-established that courts will not “gobehind [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 inresponse to achallenge 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 itsvalidity cannot be soimpeached. 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 fromjudicial review.“1 1D. BRADEN, THECONSTITUTIONOFTHESTATEOFTEXAS: AN ANNOTATEDAND COMPAIWNE ANALYSIS 162 (1977) (citations omitted). For this reason, we do not believe that acourt would conclude that H.B. 241 violates article III, section 30ofthe 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 ofemergency medical service personnel.

DAN MORALES Attorney General ofTexas

‘Thecmunentatorgoesontonotethat“[a]aoagemsne amendment toabillissubject

topoint oforder objection,

however,aadthen&s ofbothhomescontainseveral pagesdigestingrulingsonthis slipperyquestion.’ 1D. BRADEN, THE CONSTITUTION

OF THE STATE OF TEXAS: AN ANNOTATED AND C~MPARA~VEANALYSIS 162(1977)(citations

omitted).

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WILL PRYOR Fist Assistant Attorney General MARY KELLER Deputy Attorney General for Litigation RENEA HICKS State Solicitor h4ADELEINE B.JOHNSON Chair, Opinion Committee Prepared byMary R. Crouter Assistant Attorney General

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