Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Chet Brooks Opinion No. H-838
Chairman
Senate Committee on Human Re: Effect of Senate
Resources Bill clause repealing
State Capitol section of Public Welfare
Austin, Texas 78711 Act earlier amended by
the same Legislature.
Dear Senator Brooks:
You have asked our opinion
_ as to the effect of two acts
passed by the 64th Legislature. Both statutes involve article
695c, section 8(a), V.T.C.S., which regulated child care
institutions.
House Bill 569 [A&s 1975, 64th Leg., ch. 502 at 13431
amended article 695c, section 8(a) to add the following
provisions:
1. Definitions.
. . .
(k) Person. Person indicates en indiv-
idual, an agency, an association, or a
corporation.
4a. Health Certificate.
(a) No person operating a child.care
facility may allow an individual to prepare
or dispense food served in the facility if
the individual does not possess as a minimum
requirement a health certificate signed by a
licensed physician within the previous 12-
month period.
p. 3534
The Honorable Chet Brooks - page 2 (H-838)
(b) The State Department of Public Welfare
shall check the certificates during its
inspection visits.
(c) The Department of Public Welfare may,
after consultation with the Department of
Public Health, require additional minimum
public health safety requirements of the
persons covered by this Act.
. . .
12. Misdemeanor.
Any person who (i) impersonates an
official, employee, representative, agent,
or solicitor of any licensed institution
or agency within the scope of this Act,
(ii) falsely represents himself as repre-
senting a licensee under this Act, (iii)
solicits funds in the name of, or for, any
licensee under this Act without authorization,
(iv) without a license conducts a child-
caring institution, a commercial child-caring
institution, a child-placing agency, or
places children for adoption, or (v) violates
the provisions of Subsection 4a of this section,
is guilty of a misdemeanor and upon convic-
tion is punishable by a fine of not more
than One Thousand Dollars ($l,OOO), or
confinement in county jail for not more
than one (1) year, or both. Each day of
violation shall be considered a separate
offense.
This Act became effective September 1, 1975.
Subsequent to the enactment of House Bill 569, the Leg-
islature enacted Senate Bill 965 [Acts 1975, 64th Leg., ch.
708 at 2240, found at V.T.C.S. art. 695a-31, effective on
January 1, 1976. This bill is known as the Child Care
Licensing Act and involves the regulation of child care
facilities. Section 26 of this Act provides:
p. 3535
The Honorable Chet Brooks - page 3 (H-838)
Sec. 26. Section 8(a), the Public
Welfare Act of 1941, as amended
(Article 695c, Vernon's Texas Civil
Statutes), is repealed.
Your question is whether this language effected a repeal
of the health certificate requirements of House Bill 569. All
laws enacted during the same session of the Legislature on the
same subject are in & materia and a court, in seeking leg-
islative intent, all,readtogether as if they were
embraced in one act. 200 S.W.Zd 813 (Tex.
State
sup. 1947). The intent, v- foun
once Y? , will be given effect
even when it seems to conflict with the literal words.
Smith v. Smith, 519 S.W.2d 152 (Tex. Civ. App. -- Dallas
m GFitref'a).
In Eastern Texas Electric Co. v; Woods, 230 S.W. 498
(Tex. Civ. App. xaumont 192rwritm'd). The
court discussed two bills passed.in the same session of the
Legislature and said:
Having been passed at the same session of
the Legislature, and within a few days of
each other, it is to be presumed that they
are imbued with the same spirit and actuated
by the same policy, and should be construed
each in the light of the other. Railway v.
State, . . . 68 S.W. 777. It is but
reasonable to conclude that the Legislature,
when it passed the last act . . . had in mind
its very recent previous legislation . . . and
did not intend to reneal or modifv anv nart of
same. Where there --
i'eno express repea$; none
is deemed to be intended unless there IS such
an inconsistency as precludes this presumption.
230 S.W. 503. (Emphasis added).
In Ex Parte Copeland, 91 S.W.Zd 700 (Tex. Crim. App. 1936),
the Courtomminal Appeals adopted and applied a rule
stating:
p. 3536
The Honorable Chet Brooks - page 4 (H-838)
A clause in a statute purporting to repeal
other statutes is subject to the same rule
of interpretation as other enactments, and
the intent must prevail over literal inter-
pretation. An absolute repeal may be controlled
as a qualified or partial repeal, where other
parts of the statute show such to have been
the real intent.
See also Parshall -
v. State, 138 S.W. 759 (Tex. Crim. App.
i?Xl)
,But where it is clear that a later act of the Legisla-
ture is meant to repeal an earlier act, even one passed
during the same session, it is given effect. In Communit
Public Service Co. v. James, 166 S.W.2d 395 (Tex.-TzG+
APP. -- Austin 1942,writ ref'd), two acts of the 47th
Legislature, which met in 1941, were considered. The first
was an amendment to the Mortgage Registration Tax Law, which
had been passed in 1939. The second was a repealing act
which expressly and specifically repealed the 1939 act "and
all subsequent amendments theretoW even though the caption
referred only to the 1939 act. The court nevertheless held
that the 1941 amendment was also repealed. The court said:
The caption was sufficient to give notice
that the original tax law and all amend-
ments which constituted substitutes therefor
were imed in the subject matter of the
repealing act . . . . The omission in the
caption of the 1941 amendment is readily
explained by the fact that when the bill was
introduced the 1941 amendment had not been
passed . . . . But whatever the cause of the
omission, we are clear in the view that . . .
the 1941 amendment was effectually repealed.
166 s.w.2a 396. (Emphasis added).
Here. the rewealer clause of the Child Care Licensina
Act is express, specific, clear, and direct. See City of-
Beaumont Independent School Diet. v. Broadus, 182 S.W.Zd
406 (Tex. Civ. App. --Amarillo4h; writ ref'd). It repeals
p. 3537
The Honorable Chet Brooks - page 5 (H-838)
section 8(a) of the Public Welfare Act of 1941, as amended.
Furthermore, the capt$.g ;&the Child Care Licenxng Act
includes the words: ; repealing Section 8(a)
of the Public Welfare Act of iSill as amended (Article 695c,
Vernon's Texas Civil Statutes) . . . .'
However. onlv one vart of House Bill 569 is within the
exact holding of Community Public Service Co v. James,
because only one part of Housel~oconsti~t~sub-
stitute or replacement for previous provisions of article
695c. The rest of the bill constitutes original legislation.
House Bill 569 contained three substantive sections.
The first section of the bill added paragraph (k) defining'
person to subsection 1 of section(a) of the statute. The
second section of the bill added subsection 4a to section
8(a) of the statute so as tmuire health certificates in
certain circumstances. But the third section of the bill
amended and re laced former subsection 12 of section 8(a) of
thetute,-+ t a penalty provision. It is this provision,
subsection 12 of section 8(a) of article 695c as amended,
which the Community Public Service case compelsus to
regard as repealed. In our-n, however, the remainder
of House Bill 569 has not been repealed.
In Sutherland Statutory Construction 9 22.39 (Sands,
4th ed. 1972), it is said:
On the theory that provisions of the
original act reenacted in an amendatory
act are a continuation of the original
act, it is held that repeal of the original
act repeals those provisions of the original
act which were reenacted in the amendatory
act. And provisions added by the amendatory
act which are not complete within themselves,
that is, those that must be read together
with the reenacted provisions of the original
act in order to be understood or enforced are
also held repealed. The same result follows if
the original act is not reenacted as amended
because the amendatory act cannot be understood
or enforced without reference to the original
p. 3538
The Honorable Chet Brooks - page 6 (H-838)
A provision in a bill or act may be considered indepen-
dent, complete and self-contained even though it refers to
some.other act. State v. Southwestern --
Gas & Electric Co.,
193 S.W.2d 675 (Taur 19461.
When all legislation [see also Acts 1975, 64th Leg.,
ch. 292 at 7461 passed by the6mLegielature concerning
section 3(a) of article 695c is read~together as one act, it
is clear that the object of all of the provisions is to
provide better protection for children, particularly those
coming into contact with child-caring or child-placing
agencies. It is also clear that the two substantive sections
of House Bill 569 which would remain after repeal of the
penal amendatory section became effective could constitute a
whole and comwlete statute and be siven effect without
reference to the expressly repealed section. cf. Board of
~"````30:T``rr``p``````~s~;l Dist. 5 PensiFBq 649
ose sections are not incompatable
with the Child Care Licensing Act because the definitionsof
“persons” in the two bills are complementary and the statutory
requirement regarding health cards in House Bill 569 is
readily integrated with the Child Care Licensing Act requirements
that the Department of Public Welfare specify standards for
adequate and healthy food services by licensees.
In our opinion, therefore, only the portion of House
Bill 569 which amended and replaced subsection 12 of article
695c, section S(a), the penalty section, was repealed by the
Child Care Licensing Act and the remaining provisions of
House Bill 569 survive.
SUMMARY
The repeal of article 695c, section S(a),
V.T.C.S. by the Child Care Licensing Act,
article 695a-3, V.T.C.S. did not repeal
p. 3539
The Honorable Chet Brooks - page 7 (H-838)
added subsection 4a of article 695c,
section 8(a), which was an independent,
complete law enacted by the same session
of the Legislature that enacted the
Child Care Licensing Act.
Attorney General of Texas
Opinion Committee
p. 3540