L 

. . 

‘,,’ 

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 2L52 of the Insurance 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 Article 2152 was originally enacted .in 1977.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, 192 S.W.2d 899 (Tex. Civ. App. - Waco 1946, no writ); city 

of Corpus Christi v. Herschbach, 536 S.W.%d 653 (Tex. Civ. App. - Corpus 

Christi 1976. writ ref’d n.r.e.1 (amendments). House Bill 291 and 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 and effective law on and after 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 to article 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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Honorable W. P. Daves - Page Two (MW-73) 

. . . 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 may be given to each. If the amendments are irreconcilable, 

the latest in date of enactment prevails. 

Sec. 3.05(b). See also Attorney General Opinion H-838 (1976). 

In our opinion, the provisions relating to the inclusion of various 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, and to licensed 

dentists as well. 

It has been suggested that House Bill 291 may be applicable to existing policies 

issued prior to the effective date of the bill and that it may therefore 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, 5 16. 

- 

It is a cardinal rule of statutory construction that a statute must be presumed to be 

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 

‘_ ‘---~ Optometry Board v. Lee ! 

~=~. ~~ ~. . .._ 

‘ision Center, Inc., 515 S.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 having been 

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., 36 S.W.2d 715 

(Tex. 193% City of Corpus Christi v. Herschbach, supra. 

In Trinity Universal Insurance Co. v. Rogers, 215 S.W.2d 349, 352 (Tex. Civ. App. - 

Dallas 1948, no writ), the court stated: 

The renewal of a policy is a 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.’ 

. 

In Harrington v. Aetna Casualty & Surety Co., 489 S.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 a separate and distinct. contract for the periods of time covered by the 

renewal.” 

House Bill 291 applies to policies delivered, renewed or issued for delivery although 

it does not specifically indicate whether it applies to previously issued policies or only to 

P. 223 
. 

Honorable W. P. Daves - Page Three (blw-73) 

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, and does not impair the obligation of any existing contract. 

House Bill 291 and House Bii 860 provide for compliance “by the use of riders and 

endorsements which have been approved by the State Board of Insurance or by the filiig of 

new or revised policy forms for approval by the State Board of Insurance.” House Bill 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 96 states that a policy form “may be brought into compliance with this 

Act by the use of riders and endorsements which have been approved by the State Board of 

Insurance,” and that language is identical to the language of article 2152 of the Texas 

Insurance Code prior to the amendments in question. 

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, and Senate Bill 96 

amending article 2152 of the Insurance Code can be harmonized. 

On the effective date of these amendments, new insurance policies 

subject to article 2L52 of the Insurance Code applied to doctors of 

chiropractic medicine and licensed dentists, as well 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 House Bill 860., 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

and Nancy Ricketts 

Assistant Attorneys General 

P- 224 
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Honorable W. P. Daves - Page Four ita+73) 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Bill Campbell 

Susan Ga@on 

Bob Gauss 

Rick Gilpin 

William G Reid 

Nancy Ricketts 

Bruce Youngblood 

~. 

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p. 225