HBA-AMW, CBW H.B. 2809 77(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 2809
By: Wolens
State Affairs
8/8/2001
Enrolled

BACKGROUND AND PURPOSE 

This bill addresses several issues relating to statutory revision and
construction.  Since 1967, under the statutory directive and authority of
Section 323.007, Government Code, the Texas Legislative Council has carried
out a systematic, nonsubstantive revision of the Texas statutes into
topical codes.  Each legislative session, one or more of the
council-prepared codes is considered and enacted by the legislature.  With
a few exceptions of special projects conducted in conjunction with the
State Bar of Texas or other entities, each of those codes has been
nonsubstantive in the sense that the revision is not intended to change the
sense, meaning, or effect of the law.  Council-produced codes are prepared
with a uniform and consistent style, organization, and numbering, and in
consideration of the general definitions and rules of construction found in
the Code Construction Act (Chapter 311, Government Code).  Section 323.008,
Government Code, authorizes (but does not require) the council to establish
statutory revision advisory committees of a specific composition, but for
more than 20 years the composition of advisory committees has varied widely
from the specific composition described in the statute. 

In Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999), the
Texas Supreme Court held that an omission from the 1981 Tax Code, a
nonsubstantive revision, effected a substantive change in the law relating
to the persons eligible to apply for a sales tax refund.  The court made
its holding despite repeated and clear statements in the law and on the
face of the bill that no substantive change was intended. The court
rejected the arguments made on rehearing in an amicus brief joined in by
the legislative council and numerous individual legislators and found that
a change in a codified statute that was direct, unambiguous, and
irreconcilable with prior law would be given effect as an intended,
substantive change in the statute.  This bill establishes a rule of
construction to assist future courts in avoiding the result reached in
Fleming and establishes a related rule of construction that any absence of
legislative action in regard to the statutes at issue in Fleming does not
constitute legislative acceptance of that holding. 

In addition to Fleming, a few recent appellate court cases have held that
the legislature's  use in codes of the word "person," which is defined in
the broadest possible sense in the Code Construction Act and specifically
includes governmental entities, has effected a waiver of sovereign immunity
in situations where the statute imposes liability on a "person."  Even
where considering nonsubstantive revisions, those courts have failed to
analyze whether the law prior to codification imposed governmental
liability.  See, e.g., Texas Dept. of Health v. Doe,  994 S.W.2d 890 (Tex.
App.--Austin 1999, pet. dism'd by agr.).  Such holdings are not only
inconsistent with the basis of nonsubstantive revision; they fail to give
effect to the rule of construction adopted by the Texas Supreme Court that
a waiver of sovereign immunity must be clear and unambiguous and that use
of the word "person" in a statute effects a waiver of sovereign immunity
only if the context indicates no other reasonable construction.  See City
of La Porte v. Barfield, 898 S.W.2d 288 (Tex. 1995).  This bill codifies
the rule of construction announced in that case. 

With most Texas statutes now codified into a topical code, a large
component of statutory revision is editorial housekeeping.  At each session
of the legislature, the legislative council prepares for enactment a bill
several hundred pages in length that accomplishes that housekeeping by
renumbering or relettering sections of law, correcting cross-references,
and the like.  In addition, the housekeeping bill conforms code provisions
to acts of the previous legislature and harmonizes multiple acts of the
previous legislature affecting the same section, an action often
unofficially taken by the private publisher of Vernon's Texas Codes
Annotated.  Because the housekeeping bill is considered by the same
legislature that seeks to amend many of the statutes in need of update,
many bills each session are longer and more complicated than  necessary to
accomplish the author's purpose because the bill must also either
accomplish or consider other bills accomplishing the housekeeping.  Many
states, including  Minnesota, Wisconsin, Ohio, and Maine, authorize the
state's agency similar to the legislative council (commonly known as "the
revisor") to make those editorial changes administratively.  This bill
gives similar powers to the legislative council,  eliminating the need for
a large part of the housekeeping bill and simplifying bills that amend
existing statutes. 
 
RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency or institution. 

ANALYSIS

House Bill 2809 directs courts (and other entities such as the attorney
general or an administrative agency) to give nonsubstantively codified
statutes the same effect and meaning that was or would have been given the
statute before its codification, notwithstanding a change in the law that
the court or entity would otherwise find to be direct, unambiguous, and
irreconcilable with the prior law.  For an omission or change for which the
court finds no direct evidence of legislative intent to change the sense,
meaning, or effect of the statute, the court shall consider the change
unintended and treat it as the court would treat a typographical or similar
error. 

The bill codifies common law rules of construction that a waiver of
sovereign immunity must be clear and unambiguous, and that the use of the
broadly defined term "person" in a codified statute does not effect a
waiver of sovereign immunity unless the context of the statute indicates no
other reasonable construction. 

In a nonamendatory section of the bill, the bill makes a legislative
finding that the decision of the Texas Supreme Court in Fleming Foods of
Texas, Inc. v. Rylander is inconsistent with the  expressed intent of the
legislature, and directs that the absence of any legislative action
subsequent to the holding in that case not be construed as legislative
acceptance of the holding. 

EFFECTIVE DATE

Vetoed.