Did a Texas statute expire because the law amending it took effect the day after the expiration date?

TX AG Opinion DM-0475: Did Health and Safety Code chapter 597 expire before its fix took effect?

Plain-English summary

Don Gilbert, the commissioner of the Texas Department of Mental Health and Mental Retardation, asked the Attorney General a timing question about chapter 597 of the Health and Safety Code. The Legislature adopted chapter 597 in 1993 to let "surrogate decision-makers" consent to major medical or dental treatment for certain clients of community-based intermediate care facilities for persons with mental retardation (ICF-MR). The chapter carried its own sunset: section 597.055 said it would expire on August 31, 1997.

In 1997 the Legislature passed Senate Bill 85 to amend parts of chapter 597 and to repeal the expiration clause. The catch was timing. Senate Bill 85 contained an emergency clause meant to make it effective immediately, but the House passed the bill on a non-record vote, and article III, section 39 of the Texas Constitution requires a two-thirds record vote of each house for emergency effect. So the bill did not take effect until the ninety-first day after the session adjourned, which was September 1, 1997, one day after the August 31 expiration date. The commissioner worried that the expiration clause might have taken effect first, wiping out chapter 597 except for the pieces in Senate Bill 85.

The Attorney General concluded chapter 597 did not expire. The key was a different constitutional provision, article III, section 36, which says no law may be revived or amended by reference to its title; the act revived or the sections amended must be reenacted and published at length. If Senate Bill 85 had tried to revive a statute that was already dead, it would have been invalid. But Senate Bill 85 did not try to revive chapter 597; it amended a chapter that was still in force when the Legislature acted on it on May 16, 1997. Drawing on an Indiana decision with nearly identical facts (Milk Control Board v. Pursifull), the opinion reasoned that compliance with a provision like section 36 is judged at the time the Legislature acts on the amendment, not at the bill's later effective date, because the purpose of section 36 is to give legislators notice of the statute being changed, and that purpose is served when they vote on it. Because chapter 597 was in effect and readily available when the Legislature amended it, the usual form of amendment satisfied section 36. The result: Senate Bill 85 removed section 597.055 and amended other provisions, and chapter 597 continues to exist as amended.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 597 of the Health and Safety Code and the surrogate-consent rules for ICF-MR clients have been amended since 1998, and the agency that was the Department of Mental Health and Mental Retardation has since been reorganized into the Department of State Health Services and the Department of Aging and Disability Services (and later the Health and Human Services Commission). Confirm the current statute and the current agency before relying on any specific rule here.

Who this opinion affected (as of 1998)

The Department of Mental Health and Mental Retardation and ICF-MR providers: The opinion confirmed that chapter 597's surrogate-consent framework remained in force as amended, so the consent procedures it set up did not lapse on August 31, 1997.

Surrogate decision-makers and ICF-MR clients: The opinion meant the authority for surrogate decision-makers to consent to major medical or dental treatment continued without a gap.

Legislators and bill drafters: The opinion clarified that whether an amendment complies with the reenactment rule of article III, section 36 is judged when the Legislature acts, which matters when a bill amends a statute that is set to expire near the bill's effective date.

Common questions

Did chapter 597 expire on August 31, 1997?
No. The Attorney General concluded the chapter did not expire, because Senate Bill 85 amended it while it was still in force and removed the expiration clause, so the chapter continued in effect as amended.

Senate Bill 85 took effect September 1, after the August 31 expiration. Why didn't that matter?
The opinion explained that compliance with the constitutional reenactment rule is measured at the time the Legislature acts on the amendment, here May 16, 1997, not the bill's later effective date. Chapter 597 was alive and being amended when the Legislature acted.

Why didn't Senate Bill 85's emergency clause make it effective immediately?
Because the House passed the bill on a non-record vote. Article III, section 39 of the Texas Constitution requires a two-thirds record vote of each house for a law to take effect early under an emergency clause, so the bill instead took effect on the ninety-first day after adjournment.

What is the rule about "reviving" a repealed law?
A law that has been repealed cannot be amended back to life by reference to its title; reviving it requires reenacting and publishing it at length (article III, section 36). The opinion concluded Senate Bill 85 did not revive a dead statute, so that bar did not apply.

Background and statutory framework

Chapter 597 of the Health and Safety Code was adopted by the Act of May 21, 1993, 73d Leg., R.S., ch. 530, to allow surrogate decision-makers to consent to major medical or dental treatment for certain ICF-MR clients (with "ICF-MR" defined by reference to Health and Safety Code section 531.002). Section 597.055 provided that the chapter would expire on August 31, 1997. Senate Bill 85 of the 75th Legislature (Act of May 16, 1997, ch. 450) amended portions of chapter 597 and repealed the expiration clause. The Legislature passed it on May 16, 1997, and the Governor signed it on May 30, 1997, but its emergency clause was ineffective because the House passed it on a non-record vote, so under article III, section 39 it took effect September 1, 1997.

The constitutional question was article III, section 36, which provides that no law shall be revived or amended by reference to its title; the act revived, or the sections amended, must be reenacted and published at length. A bill that attempts to revive a repealed or expired act by reference would be invalid (the opinion cited Thomas v. Groebl, 212 S.W.2d 625 (Tex. 1948), and State Bank of Barksdale v. Cloudt, 258 S.W. 248 (Tex. Civ. App.-San Antonio 1924, no writ), and Sutherland on Statutory Construction for the rule that a repealed act cannot be amended). But the opinion explained there is no question about the amendability of a statute that has not yet lapsed, and relied on Milk Control Board v. Pursifull, 36 N.E.2d 850 (Ind. 1941), where Indiana's high court upheld an amendment to a milk-control law whose expiration date passed before the amendment's effective date, because the original law was still in force when the legislature acted and only ministerial steps remained.

The opinion read those authorities to mean that compliance with a provision like section 36 is determined when the Legislature acts on the amendment. The purpose of section 36 is to give legislators notice of the statute being changed and to prohibit "blind amendments" (citing Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061 (1894), and Braden's annotated analysis of the Texas Constitution), and the provision is construed in light of the evils it targets rather than given a rigid effect. Because chapter 597 was in effect and easily accessible when the Legislature amended it on May 16, 1997, the policies behind section 36 were fully served by the usual form of amendment, and the general rule that a statute "speaks from" its effective date does not govern the section 36 inquiry. Accordingly, Senate Bill 85 complied with section 36, removed section 597.055, and amended other provisions, so chapter 597 continues to exist as amended.

Citations

Statutes and constitution:

• Tex. Health & Safety Code ch. 597, §§ 597.001(4), 597.055; § 531.002
• Tex. Const. art. III, § 36; art. III, § 39
• Tex. Gov't Code §§ 311.025, 312.014
• Act of May 21, 1993, 73d Leg., R.S., ch. 530 (enacting ch. 597)
• Senate Bill 85, Act of May 16, 1997, 75th Leg., R.S., ch. 450

Cases:

• Milk Control Board v. Pursifull, 36 N.E.2d 850 (Ind. 1941)
• Thomas v. Groebl, 212 S.W.2d 625 (Tex. 1948)
• State Bank of Barksdale v. Cloudt, 258 S.W. 248 (Tex. Civ. App.-San Antonio 1924, no writ)
• Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061 (1894)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0475
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0475.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

April 14, 1998

Mr. Don A. Gilbert
Commissioner, Texas Department of Mental Health and Mental Retardation
P.O. Box 12668
Austin, Texas 78711-2668

Opinion No. DM-475

Re: Whether chapter 597 of the Health and Safety Code expired on August 31, 1997, and a related question (RQ-1030)

Dear Mr. Gilbert:

You inquire about chapter 597 of the Health and Safety Code, adopted by the legislature in 1993, providing that "surrogate decision-makers" could consent to major medical or dental treatment for certain clients of a community-based ICF-MR facility. Section 597.055 of the Health and Safety Code provided that chapter 597 would expire on August 31, 1997. In 1997, the legislature adopted Senate Bill 85 to amend portions of chapter 597 and repeal the expiration clause, but this bill did not become effective until September 1, 1997. Although section 11 of Senate Bill 85 contains an emergency clause purporting to make the bill effective upon passage, the bill passed the House of Representatives by a non-record vote, and, pursuant to article III, section 39 of the Texas Constitution, it did not take effect until the ninety-first day after adjournment of the legislature, or September 1, 1997.

[Footnote: Article III, section 39 of the Texas Constitution provides that no law, except the general appropriation act, shall take effect until ninety days after the adjournment of the session, unless in case of an emergency, which must be expressed in the act, the legislature shall otherwise provide by a two-thirds record vote of each house.]

You are concerned that the expiration clause of chapter 597 may have taken effect, with the result that chapter 597 would no longer exist, except for the provisions set out in Senate Bill 85. Accordingly, you ask whether chapter 597 of the Health and Safety Code expired on August 31, 1997. You also ask about the effect that Senate Bill 85 has on the status of chapter 597.

Senate Bill 85 set out the sections of Health and Safety Code, chapter 597, that it amended, but it did not set out the chapter at length. This raises an issue under article III, section 36 of the Texas Constitution, which provides that a law may not be revived without reenacting it and publishing it in full:

No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length. [Emphasis added.]

If Senate Bill 85 attempted to "revive" a repealed or expired act, it would be invalid pursuant to this constitutional provision. However, we believe that Senate Bill 85 did not attempt to revive chapter 597 of the Health and Safety Code and therefore is not invalidated by article III, section 36. Our view of this question is supported by a case from another jurisdiction, Milk Control Bd. v. Pursifull, 36 N.E.2d 850 (Ind. 1941).

[Footnote: See Thomas v. Groebl, 212 S.W.2d 625, 631-32 (Tex. 1948); State Bank of Barksdale v. Cloudt, 258 S.W. 248, 249 (Tex. Civ. App.-San Antonio 1924, no writ). Sutherland states that "all courts hold that a repealed act cannot be amended," and "[n]o court will give the attempted amendment the effect of reviving the repealed act." Sutherland Stat. Const. § 22.03 at 177-78 (5th ed.).]

[Footnote: Sutherland states as follows: "In contrast with the rule concerning amendment of repealed statutes, there is no question about the amendability of a statute which has lapsed by operation of its own terms." Sutherland Stat. Const. § 22.03 at 178 (5th ed.). Sutherland cites the following cases for this statement: Milk Control Bd. v. Pursifull, 36 N.E.2d 850 (Ind. 1941); State ex rel. Daws v. Bailey, 42 P. 373 (Kan. 1895); Fenolio v. Sebastian Bridge Dist., 200 S.W. 510 (Ark. 1917). The latter two cases involve statutes that were effective for only two years but did not include express expiration clauses.]

Milk Control Board v. Pursifull addressed the Indiana Milk Control Law, which included a provision stating that it would expire on June 30, 1941. In 1941, the Indiana General Assembly amended it and extended the expiration date to June 30, 1943. The governor approved the amendment on March 11, 1941, but the bill did not include an emergency clause and did not become effective until July 8, 1941, over a week after the expiration date. The Supreme Court of Indiana had previously held "that an act is invalid which purports to amend a statute which has been repealed, or which has been judicially declared invalid in its entirety." In Milk Control Board v. Pursifull, however, the court emphasized that the original law was still in force when the legislature adopted the amendment:

[Footnote: Milk Control Bd. v. Pursifull, 36 N.E.2d 850, 851 (Ind. 1941). At the time the Indiana Supreme Court decided Milk Control Board v. Pursifull, the Indiana Constitution provided that "[n]o act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended, shall be set forth and published at full length." Ind. Const. art. IV, § 21 (repealed November 8, 1960). The Indiana Supreme Court did not refer to the constitutional provision, but relied on a common law statement of the same rule.]

In the instant case the 1941 amendatory act was duly passed by both houses of the General Assembly, was signed by the presiding officers of the respective houses and on March 11, 1941, it was approved by the Governor. At that time the Milk Control Law was in force and subject to amendment by the legislature. . . . The approval of the amendatory act by the Governor on March 11, 1941, was the last necessary step in the legislative process. It was then a duly enacted law of the General Assembly. Nothing remained but the administrative acts of the Secretary of State in distributing copies of the printed acts and of the Governor declaring them effective. . . . Should the delay in performing these purely administrative acts be permitted to thwart the purpose and intention of the Legislature?

Accordingly, the amendment was a duly enacted law of the Indiana General Assembly prior to the June 30, 1941 expiration date. The court distinguished other cases on the ground that the original statute had already been repealed at the time the legislature adopted the amendment. "In other words, while the amendatory act was still in the legislative process of enactment there was no original law to amend."

The Milk Control Board opinion indicates that compliance with provisions like article III, section 36 of the Texas Constitution is to be determined at the time the Legislature acts on the amendment. The purpose of section 36 is to give notice to members of the Legislature of the subject to be affected by the proposed act. As a commentator on this provision has stated:

Section 36 is primarily intended to prohibit blind amendments to existing statutes. (Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061 (1894)). A blind amendment merely cites the statute to be amended and then proceeds to set out the amendatory language alone, for example: "Substitute '$1,000' for '$200' in the third line of Section 7."

Article III, section 36 is not given a "rigid effect," but is construed according to the spirit of its restrictions and "in the light of the evils to be suppressed."

The purpose of this constitutional provision, to provide notice to the legislature, is accomplished when the legislature enacts the amendment. Since chapter 597 of the Health and Safety Code was in effect and easily accessible when the legislature amended it, the policies underlying section 36 were fully served by the usual form of amendment. No purpose of article III, section 36 is served if we defer applying it until the effective date of the amendment.

The general rule that a statute "speaks from" its effective date does not apply to the construction of article III, section 36. The effective date is significant for purposes of determining when a statute affects the public, but not for evaluating notice to the legislature at the time it amended a statute. For example, where two irreconcilable statutes are adopted at the same session of the legislature, we look to the last legislative action rather than the effective dates to determine which statute prevails.

We believe that Senate Bill 85 complied with the requirements of article III, section 36 of the Texas Constitution. The legislature's intent in adopting this bill was to repeal Health and Safety Code section 597.055 and to make certain amendments to the text of chapter 597, Health and Safety Code, as it existed on May 16, 1997. Senate Bill 85 expressed this intent as fully for purposes of article III, section 36, as if it had set out the amended chapter 597 in its entirety. Senate Bill 85 had the effect of removing section 597.055 from chapter 597 of the Health and Safety Code and of amending various other provisions of this chapter. Accordingly, chapter 597 continues to exist as amended by Senate Bill 85 of the Seventy-fifth Legislative session.

SUMMARY

Chapter 597 of the Health and Safety Code was adopted in 1993 to provide for "surrogate decision-makers" to consent to major medical or dental treatment for certain clients of community-based ICF-MR facilities. Section 597.055 of the Health and Safety Code provided that the chapter would expire on August 31, 1997. Senate Bill 85 of the Seventy-fifth Legislature, which repealed the expiration clause and amended other portions of chapter 597, became effective on September 1, 1997.

Senate Bill 85 complied with article III, section 36 of the Texas Constitution, which provides that no law shall be revived or amended by reference to its title, but the act revived or sections amended shall be reenacted and published at length. Compliance with article III, section 36 is to be determined as of the bill's adoption by the legislature and not as of its effective date. When Senate Bill 85 was adopted on May 16, 1997, it affected an existing statute. Senate Bill 85 had the effect of removing section 597.055 from chapter 597 of the Health and Safety Code and of amending various other provisions of this chapter. Accordingly, chapter 597 continues to exist as amended by Senate Bill 85 of the Seventy-fifth Legislative session.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General