Untitled Texas Attorney General Opinion

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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)

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 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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