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August 18, 1989

W.N. Kirby, Ph.D. Commissioner of Education Texas Education Agency 1701North Congress Ave. Austin, Texas 78701-1494 Opinion No. JM-1086

Re: Effective date of section 7 of House Bill 2566, which revises the teacher career ladder statutes (RQ-1773)

Dear Dr.Kirby:

You inquire about the .-- ~~~~~ effective date of one section of House Bill 2566, adopted by the 71st Legislature to revise the statutes governing the teacher career ladder. A **copy** of the bill signed by the Governor includes the following provision:

SECTION 23. This Act takes effect

September 1, 1989, except that Section 7 takes effect September 1, 1990.

H.B. 2566, Acts 1989, 71st Leg., ch. 585, §23, at 1946.

Section 7ofHouse Bill 2566 amends section 13.309 of the Education Code, the provision stating the requirements forentering level three of the teacher career ladder, by raising the standard ofperformance required to achieve level three. The amended version requires a "clearly outstanding performance*I during the current year and one of thepreceding twoyears, where the original version requires only "performance exceeding expectations" during three of the preceding fouryears. Section 23asquoted above would delay the imposition of the new criteria until September 1, 1990.

However, the effective date provision included in the conference committee report for House Bill 2566 provides that "Section 5 . . .takes effect September 1, 1990." Section 5amends section 13.307 of the Education Code,which states the requirements for entering level one of the teacher career ladder. A letter toyou from the Speaker of the House, the Lieutenant Governor, the House Public Education Committee and the Senate Education Committee accounts for this discrepancy as follows:

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An examination of the files on this bill shows that the text of the conference committee report as laidbefore and adopted byboth houses applied the September 1, 1990, effective date to Section 5 of the bill rather than Section 7. The reference to Section 7came about exclusively as a result of an editorial changemade intheprocess of enrolling thebill. But for that editorial change, therewould be no internal inconsistencies inthe text of the bill.

The letter suggests that the Texas Education Agency could reasonably begin to implement the changes in level threemade by section 7 on September 1, 1989. The State Board of Education has directed you to request our opinion
as to the effective date of section 7.

The version of House Bill 2566 that postpones the effective date of section 7 until September 1, 1990, is an enrolled bill. Itwas signed by the President of the Senate and the Speaker of theHouse, approved by the Governor, and filed inthe Office of the Secretary of State. See Tex. Const. art. III, 5 38;Ellison v. Texas Liauor Control Bd., 154 S.W.Zd 322, 326 (Tex. Civ.App. -Galveston 1941, writ ref'd). Inreviewing statutes, the Texas courts follow the "enrolled bill rule,I1 which holds that aduly authenticated, approved, and enrolled statute and is imports absolute verity conclusive that an act was passed according to constitutional requirements. Beckendorff **V.** Harris-Galveston Coastal Subsidence Dist., 558 S.W.2d 75 (Tex.Civ.App. -Houston [14thDist.] 1977), writ ref'd
n.r.e. ver curiam, 563 S.W.2d 239 (Tex. 1978). One court has stated the rule as follows:

[A]nactpassed by the Legislature, signed by the proper officers ofeach house, approved by the Governor, orpassed notwithstanding, and filed inthe office of the Secretary of State, constitutes aconclusive record of the passage of the act as enrolled. As against this record resort may not be had to a proclamation of the Governor, to the terms of the bill as originally introduced amendments thereto, to the journal of t;i Legislature, nor topar01 evidence for the purpose of impeaching or invalidating the law.
Ellison, at

suora, 326 (citing Texas Jurisprudence):
see also Jackson v. Walker, 49 S.W.2d 693 (Tex. 1932); Beckendorff v. Harris-Galveston Coastal Subsidence Dist.,

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suora; Nue es

cq 350 S.W.2d 385 (Tex.Civ.App.

- SanAntonio 1961,writ ref:d); Falkner v.Memorial Gardens Assoc., 298 S.W.2d 934 (Tex. Civ.App. -Austin 1957, writ ref*d n.r.e.).

The conclusiveness of the enrolled bill rule is well illustrated by the case ofm, SUI)L~Bat 326. An amendment to the Texas Liquor Control Actwas claimed to be unconstitutional because the theHouse and the Senate did notpass the same bill. The Senate amended the version passed by the House, but theHouse refused to concur in the amendments. The billwas not returned to the Senate and the Senate never adopted the House version. The Senate did adopt a resolution stating that it receded from the amendments anddeclaring that thebill had passed the Senate inthe same form inwhich itwas received from the House. The House version was approved by the Governor. Because of the enrolled bill rule, the court refused to accept evidence from theHouse Journal toprove that the lawwas not passed by both houses of the Legislature, as required by the Constitution. &8 Tex. Const. art. IV, 5 14; see also Tex. Const. art. III, §§ 30, 32, 39; Ellison, suora, at 327 (dissenting opinion).

The enrolled bill rule prevents us from looking to parol evidence toprove that House Bill 2566 did not pass the legislature in the form approved by the Governor. We cannot rely on the conference committee report to show that section 7ofHouse Bill 2566 is 1989.1 effective on September 1,

1. Ifwewere allowed to consider evidence that House Bill 2566 was not adopted in accordance with correct procedures, wewould have todiscuss the possibility that the conference committee report, in placing a delayed effective date on section 5 ofHouse Bill 2566, violated House and Senate rules. The rules ofboth houses provide that a conference committee shall have no authority to add textwhich is not included ineither the House or Senate version of thebill. House Rule 14, 71st Leg., §9(a)(4): Senate Rule, 12.03(4). The House version provided for a September 1, 1990 effective date for section 5, the Education Code provision on level two entry, while the Senate version applied the delayed effective date to section 7,pertaining to level three entry. C.S.H.B. 2566, 71st ml. I§22 (aspassed by theHouse on May 9, 1989); C.S.H.B. 2566, 71st Leg., §23 (aspassed by the Senate onMay 24, 1989). The conference committee report, however, delayed (Footnote Continued)

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We next consider whether the rules of statutory construction require us to read the delayed effective date as inapplicable to section 7. See, ea Opinions JM-1079 (1989);H-622 (1975):' Attorney General You point out an apparent conflict between section 23, the effective date provision, and sections 19and 21of the enrolled bill, and you suggest resolving this conflict by reading the delayed effective date provision as applicable to section 5, not section 7.

Section 19of the enrolled bill reads as follows:

SECTION 19. The changes inthe eligibilityrequirements forentry to a career ladder level made by this Act, including the required use of current year appraisals, apply to all teachers beginning with the 1989-1990 school year, regardless of whether
ateacher was qualified forentry to acareer ladder level in the 1989-1990 school year before the effective date of thisAct.

H.B. 2566, Acts 1989, 71st Leg., ch. 585, 5 19, at 1945.

Where there isanapparent conflict between two provisions of a statute, a court must give the statute a construction thatwill reconcile the provisions. Hill v. State, 114 S.W. 117 (Tex.Crim.App. 1908).

Section 23 excepts teachers who are ready to enter level three fromthe general requirement stated in section 19. Section 19 still has effect, because section 13.308 of the Education Code has been amended to require use of current year appraisals for teachers entering level two of the career ladder. H.B. 2566, Acts 1989, 71st Leg., ch. 585, § 6 at 1942; see alsoa. 59, at 1943. (delaying

(Footnote Continued) implementation of section 5, the provision on level one entry. Conference Committee Report H.B. 2566, 71st Leg., s23. In this respect, the Conference Committee Report departed from both the House and the Senate versions of House Bill 2566. Because of the enrolled bill rule, however, we need not consider the effect of this departure,
norwhether the change made during enrolling was intended as correction of an error. cf. Davis v. State, 225 S.W. 532 (Tex.Crim. App. 1920) (clerical correction of abill by resolution before billwas signed by presiding officers of each house).

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entry of any teacher to level fouruntil after September 1, 1991, tobe codified asEduc. Code 5 13.3101).

We next consider the apparent inconsistency between section 21and section 23ofHouse Bill 2566. Our task is, again, toharmonize theprovisions of the statute so that all provisions will be effective. &g Gov't Code § 311.021(2) (Code Construction Act). Section 7 adds the following provision to section 13.309 of the Education Code:

(b) To enter level three, ateacher must submit awritten application tobe considered forplacement on career ladder level three to theboard of trustees of the school district
or itsdesignee not later than October 1 of the school year forwhich the application is made.

H.B. 2566,Acts 1989, 71st Leg., ch. 585, 57, at 1943.

Inaccordance with section 23, this provision is effective September 1, 1990, and applies to the 1990-1991 school year and subsequent school years.
Section 21(a) ofHouse Bill 2566provides inpart:
Wotwithstandina anv nrovision to the Gontrarv for the 1989-1990 application for placement on school year an career ladder level threemust be submitted not later than December 15, 1989.

u. 5 21(a) at 1946. (Emphasis added.)

The apparent conflict between section 21(a) and the deferred effective date provided for section 7by section 23 is found inthe language of section 21(a), emphasized above: "Notwithstanding anyprovision to the contrary . . . .'I We assume you read section 21(a) asmaking aone-year exception to the October 1application date established by section 7 and that you believe itwill bemeaningless if section 7 is not ineffect during the 1989-1990 school year.
The lVnotwithstandingl' phrase does not, however, expressly refer to section 13.309(b) of the Education Code, and itneed notbe read as if it does. It could refer to anyprovision of lawthatwould authorize the State Board of Education or the board of trustees of a school district to establish adifferent deadline for submitting applications for level three inthe 1989-1990 school year. &g Educ. Code § 13.302(a) (State Board of Education shall adopt appraisal process): see also Educ. Code 523.26 (power of

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trustees tomanage and govern schools). Section 21ofHouse Bill 2566 will be meaningful during the 1989-1990 school year even if the October 1 deadline for level three applicants is not yet in effect. We need not consider whether section 21(a) could be construed asnullifying the express effective date that section 23provides for section 7. s aenerallv Seavv. 1984)eTthe Hall 677 S.W.2d 19, 25 find a' (Tex. court must statute's intent in its language).
Accordingly, section 21(a) isnot in irreconcilable conflict with the deferred effective date provision in section 23 of House Bill 2566. Both provisions can be harmonized and given effect. Section 21(a) establishes a December 15 deadline forapplications for career ladder level three submitted inthe 1989-1990 school year, while the October 1 deadline adopted by section 7 becomes effective on September 1, 1990, and applies to the 1990-1991 school year and subsequent years. The language of section 23ofHouse Bill 2566 isclear. The amendment to section 13.309 of the Education Code adopted by section 7of House Bill 2566 takes effect September 1, 1990.

SUMMARY

The amendment to section 13.309 of the Education Code adopted by section 7ofHouse Bill 2566 takes effect September 1, 1990.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

MU MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Susan Garrison Assistant Attorney General

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