The Honorable Chet Brooks

Chairman SenateCommittee on Human Resources StateCapitol Austin, Texas 78711

Dear Senator Brooks:
You have asked our opinion as

_ Opinion No. H-838

Re: Effect of Senate Bill clause repealing section of Public Welfare Act earlier amended by the same Legislature.

to the effect of two acts passedby the 64th Legislature. Both statutes involve article 695c, section 8(a),V.T.C.S., which regulated child care institutions.
House Bill 569 [A&s 1975, 64th Leg., ch. 502 at 13431 amended article 695c, section 8(a) to add the following provisions:

1. Definitions.

. . . (k)Person. Person indicates en individual, an agency, an association,or a corporation. 4a. Health Certificate. (a)No person operating a child. care facilitymay allow an individual to prepare or dispense food served in the facility if the individualdoes not possess as a minimum requirement a health certificate signedby a licensedphysicianwithin the previous 12- month period.

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(b)The State Department of Public Welfare shall check the certificatesduring its inspectionvisits. (c)The Department of Public Welfare may, after consultationwith the Department of Public Health, require additionalminimum public health safety requirementsof the persons coveredby thisAct.

. . . 12. Misdemeanor. Any person who (i) impersonatesan official, employee, representative,agent, or solicitorof any licensed institution or agency within the scope of this Act, (ii)falsely representshimself as representing a licenseeunder thisAct, (iii) solicits funds in the name of, or for, any licensee under thisAct without authorization, (iv)without a license conducts a childcaring institution,a commercial child-caring institution,a child-placingagency, or places children for adoption, or (v)violates the provisions of Subsection 4a of this section, is guilty of a misdemeanor and upon conviction is punishableby a fine of notmore than One Thousand Dollars ($l,OOO),or confinement in county jail for notmore than one (1)year, or both. Each day of violation shall be considered a separate offense. ThisAct became effective September 1, 1975. Subsequent to the enactment of House Bill 569, the Legislature enacted Senate Bill 965 [Acts1975, 64th Leg., ch. 708 at 2240, found at V.T.C.S. art. 695a-31, effective on January 1, 1976. This bill is known as the Child Care LicensingAct and involves the regulation of child care facilities. Section 26 of thisAct provides:

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Sec. 26. Section 8(a), the Public Welfare Act of 1941, as amended (Article695c,Vernon's Texas Civil Statutes), is repealed.
Your question is whether this language effected a repeal of the health certificate requirements of House Bill 569. All laws enacted during the same session of the Legislatureon the same subject are in & materia and a court, in seeking legislative intent,all,readtogether as if they were embraced in one act. sup. 1947). Statev- Y? 200 S.W.Zd 813 (Tex.

The intent, once foun ,will be given effect evenwhen it seems to conflictwith the literalwords. Smithv. Smith, 519 S.W.2d 152 (Tex.Civ. App. -- Dallas m GFitref'a).
In Eastern Texas Electric Co. v; Woods, 230 S.W. 498 (Tex.Civ. App. xaumont 192rwritm'd). The courtdiscussed two bills passed.in the same session of the Legislatureand said:

Having been passed at the same session of the Legislature, and within a few days of each other, it is to be presumed that they are imbuedwith the same spirit and actuated by the samepolicy, and shouldbe construed each in the light of the other. Railway v. State,
. . . 68 S.W. 777. It is but reasonable to conclude that the Legislature, when it passed the last act
. . .had in mind its very recent previous legislation

. . . and did not intend to reneal or modifv anv nart of same. Where there i'e no express repea$; none -- is deemed to be intendedunless there IS such an inconsistencyas precludes thispresumption. 230 S.W. 503. (Emphasisadded).
In Ex Parte Copeland, 91 S.W.Zd 700 (Tex.Crim. App. 1936), the Courtomminal Appeals adopted and applied a rule stating:

p.3536The Honorable Chet Brooks - page 4 (H-838)

A clause in a statutepurporting to repeal other statutes is subject to the same rule of interpretationas other enactments, and the intentmust prevail over literal interpretation. An absolute repealmay be controlled as a qualified or partial repeal,where other parts of the statute show such to have been the real intent.
See also Parshall v. State, 138 S.W. 759 (Tex. i?Xl) -
,Butwhere it is clear that a later act of Crim. App.

the Legislature ismeant to repeal an earlier act, even one passed during the same session, it is given effect. In Communit Public Service Co. v. James, 166 S.W.2d 395 (Tex. -TzG+ APP. -- Austin 1942,writ ref'd), two acts of the 47th Legislature,which met in 1941,were considered. The first was an amendment to the Mortgage RegistrationTax Law, which had been passed in 1939. The secondwas a repealing act which expressly and specificallyrepealed the 1939 act "and all subsequentamendments theretoW even though the caption referred only to the 1939 act. The court neverthelessheld that the 1941 amendmentwas also repealed. The court said:

The captionwas sufficient to give notice that the original tax law and all amendments which constituted substitutes therefor were imed in the subjectmatter of the repealing act
. . . . The omission in the caption of the 1941 amendment is readily explainedby the fact thatwhen the bill was introduced the 1941 amendmenthad not been passed

. . . . But whatever the cause of the omission,we are clear in the view that

. . . the 1941 amendmentwas effectually repealed. 166 s.w.2a 396. (Emphasisadded).
Here. the rewealer clause of the Child Care Licensina Act is express, specific, clear, and direct. See City ofBeaumont Independent School Diet. v. Broadus, 182 S.W.Zd 406 (Tex.Civ. App. --Amarillo4h; writ ref'd). It repeals

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section 8(a) of the Public Welfare Act of 1941, as amended. Furthermore, the capt$.g ;&the Child Care Licenxng Act includes the words: ; repealing Section 8(a) of the Public Welfare Act of iSill as amended (Article695c, Vernon'sTexas Civil Statutes)

. . . .'
However. onlv one vart of House Bill 569 is within the exactholding **of** Community Public Service Co v. James, becauseonly one part of Housel~oconsti~t~substituteor replacement for previous provisions of article 695c. The rest of the bill constitutes original legislation.
House Bill 569 contained three substantive sections. The first section of the bill added paragraph (k)defining' person to subsection 1 of section(a) of the statute. The second section of the bill added subsection 4a to section 8(a)of the statute so as tmuire health certificates in certain circumstances. But the third section of the bill amendedand re laced former subsection 12 of section 8(a) of thetute,

-+ t a penalty provision. It is this provision, subsection 12 of section 8(a) of article 695c as amended, which the Community Public Service case compelsus to regardas repealed. In our-n, however, the remainder of House Bill 569 has not been repealed.
In Sutherland Statutory Construction 9 22.39 (Sands, 4th ed. 1972), it is said:

On the theory that provisions of the original act reenacted in an amendatory act are a continuationof the original act, it is held that repeal of the original act repeals those provisions of the original act which were reenacted in the amendatory act. And provisions added by the amendatory act which are not completewithin themselves, that is, those thatmust be read together with the reenactedprovisions of the original act in order to be understood or enforced are also held repealed. The same result follows if the original act is not reenacted as amended because the amendatory act cannot be understood or enforcedwithout reference to the original

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A provision in a bill or actmay be considered independent, complete and self-containedeven though it refers to some.otheract. State v. SouthwesternGas & Electric Co., 193 S.W.2d 675 (Taur 19461. --
When all legislation [seealso Acts 1975, 64th Leg., ch. 292 at 7461 passed by the6mLegielature concerning section 3(a) of article 695c is read~together as one act, it is clear that the object of all of the provisions is to providebetter protection for children,particularly those coming into contactwith child-caringor child-placing agencies. It is also clear that the two substantive sections of House Bill 569which would remain after repeal of the penal amendatory sectionbecame effective could constitute a whole and comwlete statute and be siven effectwithout referenceto the expressly repealed section. cf. Board of ~"~~~~30:T~~rr~~p~~~~~~~s~;l Dist. 5 PensiFBq 649 ose sections are not incompatable with the Child Care LicensingAct because the definitionsof

“persons” in the two bills are complementaryand the statutory requirementregardinghealth cards in House Bill 569 is readily integratedwith the Child Care LicensingAct requirements that the Department of Public Welfare specify standards for adequateand healthy food servicesby licensees.
In our opinion, therefore,only the portion of House Bill 569which amended and replaced subsection 12 of article 695c, section S(a), the penalty section,was repealedby the Child Care Licensing Act and the remainingprovisions of House Bill 569 survive.
SUMMARY The repeal of article 695c, section S(a), V.T.C.S. by the Child Care LicensingAct, article 695a-3,V.T.C.S. did not repeal

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added subsection 4a of article 695c, section 8(a),which was an independent, complete law enactedby the same session of the Legislature that enacted the Child Care LicensingAct.

Attorney General of Texas

OpinionCommittee

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