Untitled Texas Attorney General Opinion ( 1989 )

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August 18, 1989
W. N. Kirby, Ph.D. Opinion No. JM-1086
Commissioner of Education
Texas Education Agency Re: Effective date of section 7
1701 North Congress Ave. of House Bill 2566, which
Austin, Texas 78701-1494 revises the teacher career ladder
statutes (RQ-1773)
Dear Dr. Kirby:
You.-- ~~~~~ about the effective date of one section of
inquire
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 pro-
vision:
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 *Iduring 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:
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Dr. W. N. Kirby - Page 2 (JM-1086)
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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 inconsis-
tencies 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, I1which holds that a duly authenticated,
approved, and enrolled statute imports absolute verity and
is 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.,
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Dr. W. N. Kirby - Page 3 (JM-1086)
suora; cq
Nue 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 effective on September 1,
1989.1
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)
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Dr. W. N. Kirby - Page 4 (JM-1086)
We next consider whether the rules of statutory con-
struction require us to read the delayed effective date as
inapplicable to section 7. See, e a Attorney General
Opinions JM-1079 (1989); H-622 (1975):' 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 eligibil-
ity 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 provi-
sions 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).
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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 school year an
application for placement on 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
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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. Hall 677 S.W.2d 19, 25 (Tex.
1984)eTthe court must find a' 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
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