Untitled Texas Attorney General Opinion ( 1943 )

THE ATTORNEY GENERAL
OFTEXAS
Honorable Sidney Latham
secretary of state
Austin, Texas
Dear Sir: Opinion No. O-5171A
Re: Whether resort may be had to
the journals of the legislature
to determine the effective date
of an act.
In our opinion No. O-5171 we were confronted with a situation in
which the journals of the legislature reflected that a bill containing an
emergency clause had passed both houses of the legislature with the two-
thirds record vote required to make it effective immediately, but in which
the enrolled bill itself showed, through the certificate of the Secretary of
the Senate, that the bill had passed the Senate only by a viva vote vote.
In that opinion we held that the “enrolled bill rule” governs this situation
and that the journals cannot be employed to contradict the recital of the
vote as contained in the enrolled bill. Further consideration of this prob-
lem has convinced us that we were in error in this, portion of opini.on No.
O-5171, and said opinion is hereby overruled insofar as it is in conflict with
the following discussion.
The ““enrolled bill rule” has been stated by our courts in extremely
broad language. Thus, for example, in the case of Ellkon v. Texas Liquor
Control Board, 154 S. W. (2) 332 (error refused), quoted in our prior opin-
ion, the Court said that the enrolled bill ‘“constitutes a conclusive record
of the passage of the act as enrolled”, and added that where the certificate
of the Secretary of the Senate stated that the Senatb had receded from cer-
tain amendments to the act in question “it must be conclusively presumed
that the Senate receded in a timely and proper way”. If such language
could be considered apart from its context and be given a literal interpreta-
tion, extrinsic evidence could not be used to contradict any fact affirmatively
stated in the enrolled bill, and our prior opinion would stand unchallenged.
However, we find that such an interpretation is not permissible.
Honorable Sidney Latham, Page 2, O-5171A
Section 39 of Article III of our CDnstitution provides:
“No law passed by the Legislature, except the general
appropriation act, shall take effect or go into force until
ninety days after the adjournment of the session at which it
was enacted, unless in case of an emergency, which emer-
gency must be expressed in a preamble or in the body of the
act, the Legislature shall, by a vote of two.-thirds of all the
members elected to each House, otherwise direct; said vote
to be taken by yeas and nays, and entered upon the journals.”
In the cae.e of Ewing v. Duncan, 16 S.W. 1000 (1891) our
Supreme Court, in applying this section of the Constitution to a situation
akin to the one under consideration, said:
“This act was passed March 5, 1891, and took effect
from its passage. There is a manifest error in the certifi-
cate of the Secretary of the senate attached to the bill; and,
since the printed laws will probably contain the certificate
as written, we think it proper to call attention to it. It reads
as follows: ‘I certify that the within named H.S.S.B. No. 15
passed the senate by 2/3 vote; yeas 24, nays 24. March 5th,
1891.’ We have caused the senate journal to be examined as
being the best evidence of the actual vote upon the passage of
the bill and find that it received largely more than a two-
thirds majority. For this action there is ample authority.
1 Whart. Ev. § 290, and cases cited, especially Ottwaw v.
Perkins, 94 U.S. 260.”
In Williams v. Teylor, 19 S.W. 156 (1892), the Supreme
Court explained Ewing v. Duncan as follows:
“In Ewing v. Duncan, (Tex. Sup.) 16 S. W. Rep. 1000, the
question was not whether the bill had passed, but whether it
had been carried by a sufficient majority to put it in immediate
effect. The signatures of the presiding officer and the governor
attested the passage of the act, but did not determine that it had
taken effect from the date of its passage. There being no method
of attesting the fact that a bill which purports to take effect from
Honorable Sidney Latham, Page 3, O-5171A
its passage has received the required two-thirds majority, we
deemed the journals the best evidence upon that question, and
looked to them for that purpose only.”
A like explanation was made in El Paso & S. W. R. Co. V. Foth,
100 S.W. 171, reversed on other grounds, 105 S.W. 322.
In Railway v. McGlamory, 92 Tex. 150, 41 S.W. 466, it appears
that the Supreme Court turned to the journals of the legislature to determine
the effective date of an act, but the propriety of this action was not discussed
by the Court. In Ellison v. Texas Liquor Control Board, supra, we find the
statement: ‘“The (district) court by its judgment found that the vote in ques-
tion was duly entered upon the journals. The contention of appellants that the
act will not be effective until ninety days after adjournment is therefore over-
ruled.” While in neither of these cases does it appear that the certificate on
the enrolled bill differed from the record in the journal, yet the cases do im-
ply that the journals are determinative of the vote upon emergency legislation
An examination of the cases involving the “enrolled bill rule” re-
veals that in each ins.tance where the rule has been applied the facts sought
to be shown by the journals have been facts which are not required by the
Constitution to be included in the journals. Thus, for example, virtually all
of the cases involving the rule, including the leading case of Williams v.
Taylor, supra, have involved attempts to employ the journals to show that
bills have not been referred to committees or have not been read on three
several days, and the journals are nowhere required by the Constitution to
show the occurrence of either of these facts. Likewise, in Ellison V. Texas
Liquor Control Board, supra, the attempt was to show that the Senate had
never receded from its prior amendments to a House bill; again, such fact
is not required by the Constitution to be shown in the journals.
On the other hand, we find no case where the “enrolled bill rule”
has been invoked to pr,event recourse to the journals to ascertain facts which
are required by the Constitution to be shown on such records. Indeed, not-
withstanding the rule, our courts have on several occasions allowed,the journals
to be used to establish such facts. Thus, in Hunt v. State, 3 S.W. 233 (1886)
since Section 38 of Article III of the Constitution requires that the presiding
officers of the legislature sign all bills and joint resolutions in the presence
of their respective bodies and that the fact of such signing be entered on the
Honorable Sidney Latham, Page 4, 0-517lA
journals, the Court of Appeals permitted recourse to the journals to es-
tablish such fact. In the case of In re Tipton, 13 S.W. 610 (1890) the
same Court reconciled its action wlth~ the “enrolled bill rule” as follows:
‘In Hunt v. State, 22 Tex. App. 396, 3 S. W. Rep. 233,
this court held that where the constitution expressly requires
that the journals shall show a particular fact or action of the
legislature in the enactment of a statute, as that a bill was
signed by the presiding officer of each house, such fact or ac-
tion must affirmatively appear in the journals, or the statute
will be invalid. But, where there is no express constitutional
requirement that the journals shall show affirmatively that a
constitutional requirement has been observed, it will be con-
clusively presumed that such requirement was observed; and
neither the journals, nor any other evidence, will in such case
be allowed to impeach the validity of the statute.”
In Williams v. Taylor, supra, the Supreme Court said, with re-
spect to the Tipton case, “the well-considered opinion in that case fully
accords with our views n , w hile in Holman v. Pabst, 27 S. W. (2) 340
(1930) (error refused) the decision and the opinion in the Tipton case
were again approved. Likewise, in H. & T. C. R. R. Co. v. Odum, 53
Tex. 343 (1880), since the Constitution requires that the vote upon a
bill vetoed by the governor be entered upon the journals, the journals
were deemed determtnative of the question of whether a bill was prop-
erly passed over the governor’s veto.
Since the requirement that the vote upon emergency legisla-
tion be entered in the journals is expressly contained in the Constitution,
it is our opinion that the instant situation falls under the above authorities
rather than under those which expound and apply the “enrolled bill rule”,
and you are respectfully advised that the journals of the legislature are
the ultimate and determinative authorities on the question of whether or
not the required two-thirds vote has been received. Under this conclu-
sion the bill in question became effective immediately upon its passage
and approval and no corrective measures are required to effect this
result.
Honorable Sidney Latham, Page 5, O-5171A
Trusting that the foregoing rectifies the error in our prior
opinion and fully answers your inquiry, we are
Very truly yours
ATTORNEY GENERAL OF TEXAS
R. Dean Moorhead
Assistant
RDM:mp
APPROVED MAY 24, 1943
ATTORNEY GENERAL OF TEXAS
This Opinion
Considered
and Approved
in Limited
Conference