SRC-JFA S.B. 884 75(R)   BILL ANALYSIS


Senate Research Center   S.B. 884
By: Harris
Jurisprudence
3-10-97
As Filed


DIGEST 

Currently, in the codes enacted under the state's continuing statutory
revision program, established under Section 323.007, Government Code, the
legislature, through the legislative council, strives for consistency in
manner of expression.  In those codes, "may," "shall," "must," and similar
words and phrases are used with particular meaning.  Despite the
consistency with which those terms are used in drafting legislation,
definitions are needed for consistency in interpretation.  For example, in
a recent federal district court case, the court determined that "may not,"
which imposes a prohibition, was instead permissive as used in Section
123.008, Human Resources Code.  The court effectively interpreted "may
not" to mean "may or may not."  See Order Denying Cross-Motion for Summary
Judgment in Sharpstown Civil Assn. v. Maxicare Home Services, Inc., Civil
Action No. H-94-1592, (S.D. Texas, 1995).  Additionally, the legislature
occasionally enacts bills that conflict.  Both common law and statute
establish a rule that, if those bills are irreconcilable, the act last in
date of enactment controls.  The law has not established rules for
determining which of two acts are later in date of enactment, particularly
if the journals or other legislative records fail to clearly provide that
information.  This bill would set forth definitions for terms such as
"may" and "shall" and, additionally, set forth rules for determining which
of two conflicting acts is later in enactment.  

PURPOSE

As proposed, S.B. 884 sets forth definitions for certain legislative terms
or phrases and rules of construction for certain irreconcilable statutes
and amendments.       

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 311B, Government Code, by adding Section
311.016, as follows: 

Sec. 311.016.  "MAY," "SHALL," "MUST," ETC.  Sets forth the constructions
of "may," "shall," "must," "is entitled to," "may not," "is not entitled
to," and "is not required to," which apply unless the context in which the
word or phase appears necessarily requires a different construction or
unless a different construction is expressly provided by statute.   

SECTION 2. Amends Section 311.025, Government Code, by adding Subsections
(d) and (e), to provide that in this section, the date of enactment is the
date on which the last legislative vote is taken on the bill enacting the
statute.  Sets forth the order of priority for the date of enactment of
bills if the journals or other legislative records fail to disclose which
of two or more bills in conflict is latest in date of enactment. 

SECTION 3. Amends Section 312.014, Government Code, as follows:

Sec. 312.014.  IRRECONCILABLE AMENDMENTS.  Provides that if statutes
enacted at the same or different sessions of the legislature are
irreconcilable, the statute latest in date of enactment prevails.
Requires amendments, if the amendments to the same statute are enacted at
the same session of the legislature, one amendment without reference to
another, to be harmonized so that effect may be given to each.  Provides
that if the amendments are  irreconcilable, the latest in date of
enactment prevails.  Provides that in this section, the date of enactment
is the date on which the last legislative vote is taken on the bill
enacting the statute.  Sets forth the order of priority for the date of
enactment of bills if the journals or other legislative records fail to
disclose which of two or more bills in conflict is latest in date of
enactment.   

SECTION 4. Emergency clause.
  Effective date: upon passage.