HBA-CBW H.B. 2809 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2809 By: Wolens State Affairs 3/21/2001 Introduced 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 Bar 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, 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 would establish a rule of construction to assist future courts in avoiding the result reached in Fleming and would establish 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 would codify 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 would give 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 This bill would direct 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 would codify 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. The bill would allow the legislative council in its statutory revision program to make minor editorial changes to the statutes in order to conform codes to the other acts of the same legislature, make necessary corrections, and renumber or reenter sections that are duplicative, are mislocated, or are otherwise inconsistent with the organization and arrangement of statutes. The bill prohibits the revisor from altering the sense, meaning, or effect of any statutes, and directs the revisor to prepare a bill effecting changes about which there is doubt as to its substantive effect. Examples of the editorial powers include renumbering, combining or dividing sections, correcting cross-references, replacing with dates certain references to "the effective date of this Act" and the like, and conforming provisions of a code to substantive enactments of the same legislature that enacted the code. In addition, the revisor would harmonize acts of the same legislature amending the same section of law if there is no irreconcilable conflict between the competing acts. The revisor's proposed actions would be published and distributed for review before being given effect, and notice of the proposed actions would be published in the Texas Register. The effective date of any proposed editorial change could not be earlier than the 61st day after publication of the notice. The revisor is required to seek and fully consider the comments of all interested individuals, and to communicate the editorial actions to the publishers of the statutes. In a nonamendatory section of the bill, the bill would make 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 would direct that the absence of any legislative action subsequent to the holding in that case not be construed as legislative acceptance of the holding. The bill would repeal the section of the legislative council's statute providing for a specific composition to statutory revision committees. EFFECTIVE DATE On passage, or if the bill does not receive the necessary vote, the Act takes effect on the 91st day after adjournment.