i 

August 18, 1989 

W. N. Kirby, Ph.D. 

Commissioner of Education 

Texas Education Agency 

1701 North 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 7 of House Bill 2566 amends section 13.309 of 

the Education Code, the provision stating the requirements 

for entering level three of the teacher career ladder, by 

raising the standard of performance required to achieve 

level three. The amended version requires a "clearly 

outstanding performance *I during the current year and one of 

the preceding two years, where the original version requires 

only "performance exceeding expectations" during three of 

the preceding four years. Section 23 as quoted 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 5 amends section 13.307 of the Education Code, which 

states the requirements for entering level one of the 

teacher career ladder. A letter to you 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: 

p. 5682 
Dr. W. N. Kirby - Page 2 (JM-1086) 

i 

An examination of the files on this bill 

shows that the text of the conference 

committee report as laid before and adopted 

by both houses applied the September 1, 1990, 

effective date to Section 5 of the bill 

rather than Section 7. The reference to 

Section 7 came about exclusively as a result 

of an editorial change made in the process of 

enrolling the bill. But for that editorial 

change, there would be no internal inconsistencies in the text of the bill. 

The letter suggests that the Texas Education Agency 

could reasonably begin to implement the changes in level 

three made 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. It was signed by the President of the Senate 

and the Speaker of the House, approved by the Governor, and 

filed in the 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). In reviewing statutes, the Texas courts follow the 

"enrolled bill rule, I1 which holds that a duly 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 [14th Dist.] 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]n act passed by the Legislature, signed by 

the proper officers of each house, approved 

by the Governor, or passed notwithstanding, 

and filed in the office of the Secretary of 

State, constitutes a conclusive 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 to par01 evidence for the 

purpose of impeaching or invalidating the 

law. 

Ellison, suora, at 326 (citing Texas Jurisprudence): 

see also Jackson v. Walker, 49 S.W.2d 693 (Tex. 1932); 

Beckendorff v. Harris-Galveston Coastal Subsidence Dist., 

p. 5683 
Dr. W. N. Kirby - Page 3 (JM-1086) 

suora; Nue cq es 350 S.W.2d 385 (Tex. Civ. App. 

- San Antonio 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 of m, SUI)L~B at 326. An 

amendment to the Texas Liquor Control Act was claimed to be 

unconstitutional because the the House and the Senate did 

not pass the same bill. The Senate amended the version 

passed by the House, but the House refused to concur in the 

amendments. The bill was 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 and declaring that the bill had passed the Senate 

in the same form in which it was 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 the House Journal to prove that the law was 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 to prove 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 7 of House Bill 2566 is 

1989.1 

effective on September 1, 

1. If we were allowed to consider evidence that House 

Bill 2566 was not adopted in accordance with correct 

procedures, we would have to discuss the possibility that 

the conference committee report, in placing a delayed 

effective date on section 5 of House Bill 2566, violated 

House and Senate rules. The rules of both houses provide 

that a conference committee shall have no authority to add 

text which is not included in either the House or Senate 

version of the bill. 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 (as passed by the House on May 9, 1989); C.S.H.B. 

2566, 71st Leg., § 23 (as passed by the Senate on May 24, 

1989). The conference committee report, however, delayed 

(Footnote Continued) 

P. 5684 
Dr. W. N. Kirby - Page 4 (JM-1086) 

We next consider whether the rules of statutory construction require us to read the delayed effective date as 

inapplicable to section 7. See, e a 

Opinions JM-1079 (1989); H-622 (1975):' 

Attorney General 

You point out an 

apparent conflict between section 23, the effective date 

provision, and sections 19 and 21 of 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 19 of the enrolled bill reads as follows: 

SECTION 19. The changes in the eligibility requirements for entry 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 

a teacher was qualified for entry to a career 

ladder level in the 1989-1990 school year 

before the effective date of this Act. 

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

Where there is an apparent conflict between two provisions of a statute, a court must give the statute a 

construction that will 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 from the 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 also a. 5 9, at 1943. (delaying 

(Footnote Continued) 

implementation of section 5, the provision on level one 

entry. Conference Committee Report H.B. 2566, 71st Leg., 

s 23. 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, 

nor whether 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 a bill by 

resolution before bill was signed by presiding officers of 

each house). 

P. 5685 
i 

Dr. W. N. Kirby - Page 5 (JM-1086) 

entry of any teacher to level four until after September 1, 

1991, to be codified as Educ. Code 5 13.3101). 

We next consider the apparent inconsistency between 

section 21 and section 23 of House Bill 2566. Our task is, 

again, to harmonize the provisions 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, a teacher must 

submit a written application to be considered 

for placement on career ladder level three to 

the board of trustees of the school district 

or its designee not later than October 1 of 

the school year for which the application is 

made. 

H.B. 2566, Acts 1989, 71st Leg., ch. 585, 5 7, at 1943. 

In accordance 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) of House Bill 2566 provides in part: 

Wotwithstandina anv nrovision to the 

Gontrarv for the 1989-1990 

application for placement on 

school year an 

career ladder 

level three must 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 7 by section 23 

is found in the language of section 21(a), emphasized above: 

"Notwithstanding any provision to the contrary . . . .'I We 

assume you read section 21(a) as making a one-year exception 

to the October 1 application date established by section 7 

and that you believe it will be meaningless if section 7 is 

not in effect during the 1989-1990 school year. 

The lVnotwithstandingl' phrase does not, however, 

expressly refer to section 13.309(b) of the Education Code, 

and it need not be read as if it does. It could refer to 

any provision of law that would authorize the State Board of 

Education or the board of trustees of a school district to 

establish a different deadline for submitting applications 

for level three in the 1989-1990 school year. &g Educ. 

Code § 13.302(a) (State Board of Education shall adopt 

appraisal process): see also Educ. Code 5 23.26 (power of 

P. 5686 
Dr. W. N. Kirby - Page 6 (JM-1086) 

trustees to manage and govern schools). Section 21 of House 

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 as nullifying the 

express effective date that section 23 provides for section 

7. s aenerallv Seav v. 

1984)eTthe 

Hall 677 S.W.2d 19, 25 

find a' 

(Tex. 

court must statute's intent in its 

language). 

Accordingly, section 21(a) is not 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 for applications for career ladder 

level three submitted in the 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 

23 of House Bill 2566 is clear. The amendment to section 

13.309 of the Education Code adopted by section 7 of House 

Bill 2566 takes effect September 1, 1990. 

SUMMARY 

The amendment to section 13.309 of the 

Education Code adopted by section 7 of House 

Bill 2566 takes effect September 1, 1990. 

JIM MATTOX 

Attorney General of Texas 

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 

P. 5687