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MARK WHITE Attorney General 

# The Attorney General of.Texas October 19, 1979

Honorable W.P. Daves Chairman State Board of Insurance lIlOSan Jacinto Austin, Texas 78786 Opinion No. NW-73 Re: Effect of amendments to article 2L52of theInsurance Code.
Dear Mr. Daves: You inquire about the proper interpretation of article 2L52 of the Texas Insurance Code, which was the subject of three amendments during the 66th Legislature. Article 2152 was originally enacted .in 1977. It required insurance companies to permit holders of health insurance policies to choose a doctor of podiatric medicine to perform medical services covered by the policy that fall within hi license. Three recently enacted amendments add other kinds of practitioners to the coverage of article 2L52. . ~.. Senate Bi 96 became effective on March 7, 1979. It adds doctors of optometrvto the coverage of article 2L52. An act speaks from the date that it takes effect TrioIndependent School District vi Sabinal Independent School District, 192S.W.2d 899 (Tex. Civ. App. - Waco 1946, nowrit); city of Corpus Christi v. Herschbach, 536 S.W.%d653 (Tex. Civ. App. - Corpus Christi 1976. writ ref ’d n.r.e.1 (amendments). House Bill 291and House Bill 860 became effective on August 27, 1979. They both attempted to amend article 2152 of the Insurance Code as already amended by Senate SiIl 96. You wish to know which provisions of House Sill 291 and House Bii 860 became valid andeffective law onandafter August 27,1979. House Hi 29l, which was approved May 11,1979, includes doctors of optometry and doctors of chiropractic within article 21.52 of the Insurance Code. House Rii 860,: which was approved June 7, 1979, adds doctors of optometry and licensed dentists toarticle 2152 of the Insurance Code. The provisions relating to dentists apply only to insurance policies delivered, renewed or issued for delivery more than ninety days after the effective date of House Bill 860. The Code Construction Act, article 5492b-2, V.T.C.S., provides as follows:

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. . . if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized if possible, so that effect maybe given to each. Ifthe amendments are irreconcilable, the latest indate of enactment prevails. Sec. 3.05(b). See also Attorney General Opinion H-838 (1976). Inour opinion, the provisions relating to the inclusion ofvarious practitioners within article 2152 are not inconsistent, but are cumulative of one another. Thus, article 2152 Will apply to doctors of podiatric medicine, optometry, and chiropractic, andtolicensed dentists as well. It has been suggested that House Bill 291 may be applicable to existing policies issuedprior tothe effective date of the bill andthat it maytherefore be unconstitutional because of its impairment of the obligation of a contract. See U.S. Const. art. I,§ 10,cl. I;Tex. Const. art. I, 516. - It isa cardinal rule of statutory construction that astatute must be presumed tobe valid and that all doubts as to its constitutionality are to be resolved in favor of constitutionality. Smith v. Davis, 426 S.W.2d 827 (Tex. 19681:Duncan v. Gabler, 215 S.W.2d 155 (Tex. 1948); & Dmtc TSmith, 441 S.W.2d 544 (Tex. ~&~~~ im. ADD. 1969): Texas

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_‘---~Optometry Board v. Lee ! ~=~.~~~. ..._ ‘ision Center, Inc., 515S.W.2d 380 (Tex. Civ. App. - I&?= i 1974,writ ref

’d nr.e.). It is also a guiding rule of statutory construction with respect to a statutory amendment that original provisions of an amended act are regarded as being effective from the date of enactment, and that new provisions are to be construed as havingbeen enacted at the time that the amendment took effect. Therefore, it is presumed that an amendment is prospective in aonlication unless the terms of the statute clearlv mandate retrospective application. American Surety Co. of New York v. Axtell Co., 36S.W.2d 715 (Tex. 193% City of Corpus Christi v. Herschbach, supra. InTrinity Universal Insurance Co. v. Rogers, 215S.W.2d 349, 352 (Tex. Civ. App. - Dallas 1948,nowrit), the court stated:

The renewal of a policy isa new contract of insurance and ‘cannot be effected or consummated without the mutual assent of the parties; Le., a meeting of the minds as to the essentials of the contract.’

.InHarrington v. Aetna Casualty &Surety Co., 489S.W.2d 171,176(Tex. Civ. App. - Waco 1972, writ ref

’d n.r.e), the court stated: “It is the general rule that a renewal of a policy constitutes aseparate and distinct. contract for the periods of time covered by the renewal.” House Bill 291applies to policies delivered, renewed or issued for delivery although it does not specifically indicate whether it applies to previously issued policies or only to

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those issued after the statute became effective. It is our opinion that House Bill 291 applies only to policies issued, delivered or renewed after August 27, 1979, which was the effective date of the Act, anddoes not impair the obligation of anyexisting contract. House Bill 291and House Bii 860 provide for compliance “by the use of riders and endorsements which have been approved bythe State Boardof Insurance or bythe filiig of new or revised policy forms for approval bythe State Board of Insurance.” HouseBill 291 states that policies “shall” be brought into compliance by these specified means, while House Bill 860 states that policies “may” be brought into compliance by these specified means. Senate Bill 96states that apolicy form “may be brought into compliance with this Act bythe useof riders andendorsements which have been approved bythe State Boardof Insurance,” and that language is identical to the language of article 2152 of the Texas Insurance Code prior tothe amendments inquestion. It is our opinion that these provisions are not in conflict, as they merely set forth alternative methods by which existing policy forms may be brought into compliance with the statute, as amended. SUMMA’RY

The provisions of House Bill 291,House Bill 860, andSenate Bill 96 amending article 2152 of the Insurance Code can be harmonized. On the effective date of these amendments, newinsurance policies subject to article 2L52 of the Insurance Code applied to doctors of chiropractic medicine andlicensed dentists, aswell as to doctors of podiatric medicine and doctors of optometry; however, the provisions relating to dentists apply only to insurance policies delivered, renewed, or issued for delivery more than ninety days after the effective date of HouseBill 860.,

MARK WHITE Attorney General ofTexas JOHNW.FAINTER, JR. First Assistant Attorney General TED L. HARTLEY Executive Assistant Attorney General Prepared bySusanGarrison andNancy Ricketts Assistant Attorneys General

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APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman David B. Brooks Bill Campbell SusanGa@on Bob Gauss Rick Gilpin William G Reid Nancy Ricketts Bruce Youngblood

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