Untitled Texas Attorney General Opinion

QBffice of the JZlttornep @eneral
SBtate of IEexarc
DAN MORALES
ATTORNEY
GENERAL October IS,1993
David R Smith, M.D. Opinion No. DM-263
commissioner
Texas Department of Health Re: Whether House Bii 241. Acts 1993,
1100 west 49th street 73d Leg., ch. 251. prohibits the Texas
Austin, Texas 78756-3 199 Department of Health Tom requiring an
eammation for recutiScation of emergency
medical service perso~el (RQ-580)
Dear Dr. smith:
You ask whether House Bii 241, Acts 1993,73d Leg., ch. 251 (effective May 23,
1993), prohibits the Texas Department of Health (the “department”) from requiring an
examu&on for recerthication of Bmergency Medical Service (“EMS”) perso~el. The
licmsing and certification of BMS personnel is governed by subchapter C of chapter 773
of the Health and Safety Code. Prior to the enactment of H.B. 241, section 773.050(b)
requid the Texas Board of Health (the “board”) to establish minimum standards for,
among other things, “emergency medical services personnel certitlcation and performance,
including cutitication, decerthication, mcerbfication, suspension, emergency suspension,
and probation.” Health & Safety Code 5 773.050(b)(2). Section 773.055 provided for
fees to accompany each application for examination for EMS personnel certhication,
including examinations for moutification.
As originally introduced, H.B. 241 deleted the board’s authority to establish
minimum standards for EMS recerti6cation from section 773.050(b)(2), and omitted all
reikrences to recerthlcation exanktions in section 773.055. It also rep&xi section
773.059 which imposed “a fee of $25 in addition to the examination fee” on persons
applying for recertitication after the expiration of his or her certilicate.
The howe committee substitute bii, recommended by the House Committee on
Public Health on March 19, 1993, did not affect section 773.050. It amended section
773.055 to delete references to recerthlcation examinations and to provide for fees for
recerti6cation, and amended section 773.059(a) to omit any refbrence to an examim&on
fee. The bii analysis for the house committee substitute bii states that H.B. 241 “would
remove the requirement of an examination from the recerdfication process.” House
Comm. on Public Health, Bii Analysk, RB. 241,73d Leg. (1993). In comparing H.B.
241 and the house committee substitute, the bii analysis states, “HB 241 deleted
authorization for the Department of Health to collect a $75 fee for rec&itIcation of EMS
perso~el. CSHB 241 authorizes the Department of Health to collect the fee.” Id. at 2.
p. 1378
David R. Smith, M.D. - Page 2 (DM-263)
H.B. 241 was considered by the Senate Health and Human Services Committee on
May 4, 1993. Senator Zafhrini, the senate sponsor, moved to amend the big and to adopt
a new senate committee substitute big, which was identical to the prior version of H.B.
241, with the exception that it added the following provision to section 773.050(b):
The board by rule shall establish minimum standards for:
.
(4) continuing education programs and examinations of
emergency medical services personnel.
The Senate Research Center bill analysis states that the senate committee substitute
“removes the requirement of an examination from the recertification process of emergency
medical services personnel.” Senate Health and Human Services Comm., Bill Analysis,
C.S.H.B. 241, Senate Research Center, May 7, 1993. The senate committee substitute bill
was enacted without any subsequent amendments.
There now appears to be some dispute regarding whether H.B. 241, particularly
the provision added by the senate committee substitute, authorizes the department to
require an examination for recerti&ation of EMS personnel. Because it deletes references
to mandatory recerthication examinations and does not expressly provide that the
department is permitted to require a recertification examination, but provides that the
department “shah establish minimum standards for. . continuing education programs and
examidons of emergency medical services personnel,” H.B. 241 on its face is
ambiguous. The Code Construction Act provides in part that “[i]n construing a statute,
whether or not the statute is considered ambiguous on its face, a court may consider
among other matters the: (1) object sought to be attained; (2) circumstances under which
the statute was enacted; [and] (3) legislative history. .‘I Gov’t Code $311.023.
Prior to the enactment of H.B. 241, chapter 773 of the Health and Safety Code
mandated the department to impose an examination for recertification of EMS personnel.
As originally introduced, H.B. 241 would have prohibited the department from doing so.
Although the Senate Research Center bill analysis is as ambiguous as the senate committee
substitute bill, it is apparent from the testimony of the many witnesses who testified before
the Senate Health and Human Services Committee that the senate committee substitute
bill was a compromise that was intended to authorize, but not mandate, the department to
require an examination for recertification. The representative for the Texas Ambulance
Association, for example, testified that
We have agreed to an amendment which does exactly what we all
wanted the legislation to do. And that was to remove the
requirement of the examination by statute and to place it back to the
Board of Health to adopt rules relating to certification, recertification
of EMS personnel and that process may very well include an exam.
p. 1379
David R Smith, M.D. - Page 3 (DM-263)
Hearings on H.B. 241 Before the Senate Comm. on Health and Human Serv., 73d Leg.
(May 4, 1993) (transcript available from Senate Staff Services). The department’s general
counsel also testified about the amendment, stating that “there was some concern that by
moving the mandatory testing requirement that’s currently in the statute that [the prior
version of the bill] could be construed as legislative intent, that there could be no testing
for recertification.” Id. at 2. Although she mistakenly asserted that the intent of the prior
version of the bill “was to give the authority to the Board of Health to determine when
testing was appropriate for recertification,” id., it is also clear from her testimony that the
purpose of the senate committee substitute was to prevent the bill from being construed
“to bar the Board of Health from putting in [a] test if it was appropriate,” id She further
stated: “p]ight now there is a required retest in all [EMS personnel] categories [but] it
may be determined down the line that perhaps retesting is not appropriate for every level,
or perhaps that testing could be accomplished in a different venue[,J perhaps through a
more rigorous continuing education program. So this we felt would be a way to ensure
that we have the option for retesting and that’s clearly stated in the law.” Id,
Other witnesses’ testimony also suggested that the purpose of the amendment was
to give the department the discretion to decide whether to require an examination for the
recertification of EMS personnel. The representative of the EMS Advisory Council stated
that the bill
as it was written had raised some concerns for us in that it appeared
that the intent of the law [w]as to eliminate all recerthication testing
and we felt like that was a premature move that needed to be
examined carefully. . . [TJiis language does I think leave the
decisions. at the level where they should be and that is [with] the
advisory counsel [sic] and the Board of Health. . [I] hope
that. their judgment and wisdom will . prevail as to when it’s
appropriate for the testing to be modified or changed.
Id. at 5. Similarly, the representative of the Texas College of Emergency Physicians
testified that the purpose of the amendment was to “move this issue back to the Texas
Department of Health and the Texas Emergency Services Advisory Committee.” Id. at 7.
Based on the foregoing testimony, we believe that the intent of the senate
committee substitute was to authorize, but not mandate, the department to require an
examination for recertification of EMS personnel. Because the purpose of the senate
committee substitute was to provide the department with the discretionary authority to
require an examination for recertification, we conclude that H.B. 241 does not prohibit the
department from exercising such authority.
Finally, we also note that it has been suggested that H.B. 241 is unconstitutional
under article III, section 30 of the Texas Constitution because the bill as passed does not
completely eliminate the department’s authority to require an examination for
recertification of EMS personnel as its author intended. That constitutional provision
provides in pertinent part that “no bill shall be so amended in its passage through either
p. 1380
David R. Smith, M.D. - Page 4 (DM-263)
House, as to change its original purpose.” Tex. Const. art III, 4 30. We do not believe
that a court would conclude that H.B. 241 NIB afoul of this prohibition.
First, a court might conclude that the intent of the senate committee substitute, to
give the department the discretionary authority to require an examination for
recertitkation, in addition to removing the mandatory requirement, was not inconsistent
with the biis original purpose. More importantly, even if a court were to conclude that
the intent of the senate wmmittee substitute was wmpletely wntrary to the original intent
of H.B. 241, it is well-established that courts will not “go behind [a] bill, signed, enrolled,
and approved by the governor, to inquire into the changes which it underwent while
passing the legislature.” Hoaram & T.C. R.R. Co. v. Stuart, 48 S.W. 799, 804 (Tex. Civ.
App. 1898), r&d on other grounak, 50 S.W. 333 (Tex. 1899) (citing cases). As one
court stated in response to a challenge to legislation under article III, section 30:
If a change in the original purpose of the legislation were made
to appear, it was shown only by evidence aliunde the enrolled bill
fil~dwith.th~,~,``~P,,snnthp,~dp,is.``in.th~rtcltp,
that its validity cannot be so impeached.
Jinnesv. GulfIns Co., 179 S.W.2d 397, 402 (T’ex. Civ. App.-Austin 1944), rev’d on
orher groana& 185 S.W.2d 966 (Tex. 1945) (citing cases). A commentator has explained
that article III, section 30, “is not enforceable by the wurts because the enrolled bill
doctrine shields its noncompliance from judicial review.“1 1 D. BRADEN,THE CONSTITU-
TION OF THE STATE OF TEXAS: AN ANNOTATEDAND COMPAIWNE ANALYSIS 162
(1977) (citations omitted). For this reason, we do not believe that a court would conclude
that H.B. 241 violates article III, section 30 of the Texas Constitution.
SUMMARY
House Bill 241, Acts 1993,73d Log., ch. 251, does not prohibit
the Texas Department of Health from requiring an examination for
recertification of emergency medical service personnel.
DAN MORALES
Attorney General of Texas
‘The cmunentatorgoes on to note that “[a] aoagemsne amendmentto a bill is subjectto point
of orderobjection,however,aad the n&s of both homes contain severalpages digesting rulings on this
slipperyquestion.’ 1 D. BRADEN, THECONSTITUTIONOFTHESTATE OF TEXAS: AN ANNOTATED AND
C~MPARA~VE ANALYSIS162(1977) (citationsomitted).
p. 1381
David R Smith, M.D. - Page 5 (DM-263)
WILL PRYOR
Fist Assistant Attorney General
MARY KELLER
Deputy Attorney General for Litigation
RENEA HICKS
State Solicitor
h4ADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
p. 1382