Untitled Texas Attorney General Opinion

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The Attorney General of. Texas
October 19, 1979

MARK WHITE
Attorney General

Honorable W. P. Daves Opinion No. NW-73
Chairman
State Board of Insurance Re: Effect of amendments to
lIlOSan Jacinto article 2L52 of the Insurance Code.
Austin, Texas 78786

Dear Mr. Daves:

You inquire about the proper interpretation of article 2L52 of the
Texas Insurance Code, which was the subject of three amendments during
the 66th Legislature. Article 2152 was originally enacted .in 1977. It
required insurance companies to permit holders of health insurance policies
to choose a doctor of podiatric medicine to perform medical services
covered by the policy that fall within hi license. Three recently enacted
amendments add other kinds of practitioners to the coverage of article
2L52. . ~..

Senate Bi 96 became effective on March 7, 1979. It adds doctors of
optometrvto the coverage of article 2L52. An act speaks from the date
that it takes effect TrioIndependent School District vi Sabinal Independent
School District, 192 S.W.2d 899 (Tex. Civ. App. - Waco 1946, no writ); city
of Corpus Christi v. Herschbach, 536 S.W.%d 653 (Tex. Civ. App. - Corpus
Christi 1976. writ ref’d n.r.e.1 (amendments). House Bill 291 and House Bill
860 became effective on August 27, 1979. They both attempted to amend
article 2152 of the Insurance Code as already amended by Senate SiIl 96.
You wish to know which provisions of House Sill 291 and House Bii 860
became valid and effective law on and after August 27,1979.

House Hi 29l, which was approved May 11, 1979, includes doctors of
optometry and doctors of chiropractic within article 21.52 of the Insurance
Code. House Rii 860,: which was approved June 7, 1979, adds doctors of
optometry and licensed dentists to article 2152 of the Insurance Code. The
provisions relating to dentists apply only to insurance policies delivered,
renewed or issued for delivery more than ninety days after the effective
date of House Bill 860.

The Code Construction Act, article 5492b-2, V.T.C.S., provides as
follows:

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. . . if amendments to the same statute are enacted at the same
session of the legislature, one amendment without reference to
another, the amendments shall be harmonized if possible, so that
effect may be given to each. If the amendments are irreconcilable,
the latest in date of enactment prevails.

Sec. 3.05(b). See also Attorney General Opinion H-838 (1976).

In our opinion, the provisions relating to the inclusion of various practitioners within
article 2152 are not inconsistent, but are cumulative of one another. Thus, article 2152
Will apply to doctors of podiatric medicine, optometry, and chiropractic, and to licensed
dentists as well.

It has been suggested that House Bill 291 may be applicable to existing policies
issued prior to the effective date of the bill and that it may therefore be unconstitutional
because of its impairment of the obligation of a contract. -See U.S. Const. art. I, § 10, cl.
I; Tex. Const. art. I, 5 16.

It is a cardinal rule of statutory construction that a statute must be presumed to be
valid and that all doubts as to its constitutionality are to be resolved in favor of
constitutionality. Smith v. Davis, 426 S.W.2d 827 (Tex. 19681: Duncan v. Gabler, 215
S.W.2d 155 (Tex. 1948); & Dmtc TSmith, 441 S.W.2d 544 (Tex. ~&~~~ im. ADD.
~=~. 1969): . .._
~~ ~. Texas
‘_ ‘---~ Optometry Board v. Lee ! ‘ision Center, Inc., 515 S.W.2d 380 (Tex. Civ. App. - I&?= i
1974, writ ref’d nr.e.).

It is also a guiding rule of statutory construction with respect to a statutory
amendment that original provisions of an amended act are regarded as being effective
from the date of enactment, and that new provisions are to be construed as having been
enacted at the time that the amendment took effect. Therefore, it is presumed that an
amendment is prospective in aonlication unless the terms of the statute clearlv mandate
retrospective application. American Surety Co. of New York v. Axtell Co., 36 S.W.2d 715
(Tex. 193% City of Corpus Christi v. Herschbach, supra.

In Trinity Universal Insurance Co. v. Rogers, 215 S.W.2d 349, 352 (Tex. Civ. App. -
Dallas 1948, no writ), the court stated:

The renewal of a policy is a new contract of insurance and ‘cannot
be effected or consummated without the mutual assent of the
parties; Le., a meeting of the minds as to the essentials of the
contract.’
.
In Harrington v. Aetna Casualty & Surety Co., 489 S.W.2d 171,176 (Tex. Civ. App. -
Waco 1972, writ ref’d n.r.e), the court stated: “It is the general rule that a renewal of a
policy constitutes a separate and distinct. contract for the periods of time covered by the
renewal.”

House Bill 291 applies to policies delivered, renewed or issued for delivery although
it does not specifically indicate whether it applies to previously issued policies or only to

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Honorable W. P. Daves - Page Three (blw-73)

those issued after the statute became effective. It is our opinion that House Bill 291
applies only to policies issued, delivered or renewed after August 27, 1979, which was the
effective date of the Act, and does not impair the obligation of any existing contract.

House Bill 291 and House Bii 860 provide for compliance “by the use of riders and
endorsements which have been approved by the State Board of Insurance or by the filiig of
new or revised policy forms for approval by the State Board of Insurance.” House Bill 291
states that policies “shall” be brought into compliance by these specified means, while
House Bill 860 states that policies “may” be brought into compliance by these specified
means. Senate Bill 96 states that a policy form “may be brought into compliance with this
Act by the use of riders and endorsements which have been approved by the State Board of
Insurance,” and that language is identical to the language of article 2152 of the Texas
Insurance Code prior to the amendments in question.

It is our opinion that these provisions are not in conflict, as they merely set forth
alternative methods by which existing policy forms may be brought into compliance with
the statute, as amended.

SUMMA’RY

The provisions of House Bill 291, House Bill 860, and Senate Bill 96
amending article 2152 of the Insurance Code can be harmonized.
On the effective date of these amendments, new insurance policies
subject to article 2L52 of the Insurance Code applied to doctors of
chiropractic medicine and licensed dentists, as well as to doctors of
podiatric medicine and doctors of optometry; however, the
provisions relating to dentists apply only to insurance policies
delivered, renewed, or issued for delivery more than ninety days
after the effective date of House Bill 860.,

MARK WHITE
Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Susan Garrison
and Nancy Ricketts
Assistant Attorneys General

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Honorable W. P. Daves - Page Four ita+73)

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bill Campbell
Susan Ga@on
Bob Gauss
Rick Gilpin
William G Reid
Nancy Ricketts
Bruce Youngblood

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