Can Texas require EMTs and paramedics to pass an exam to keep their certification?

Plain-English summary

The Commissioner of the Texas Department of Health asked the Attorney General to settle an argument over a brand-new law. House Bill 241, enacted in 1993, rewrote the parts of the Health and Safety Code that govern certification of emergency medical services (EMS) personnel, the paramedics and EMTs who staff ambulances. Before the bill, the law flatly required the department to make people pass an examination to be recertified. The dispute was whether the new bill took that power away entirely, or merely removed the mandate while leaving the department free to keep testing if it chose.

The Attorney General concluded the department kept the power. As first introduced, House Bill 241 would have erased the recertification-exam requirement and all the fee references that went with it. But when the bill reached the Senate, a committee substitute added a clause telling the Board of Health to set minimum standards for "continuing education programs and examinations of emergency medical services personnel." That left the statute genuinely ambiguous on its face: it no longer mandated an exam, but it now mentioned examinations as something the board sets standards for. Because the text was ambiguous, the Code Construction Act let the office look at legislative history, and the hearing record pointed one way. Witness after witness, an ambulance-association representative, the department's own general counsel, the EMS Advisory Council, and the Texas College of Emergency Physicians, described the senate amendment as a compromise: it pulled the mandatory testing requirement out of the statute and handed the decision back to the Board of Health, which "may very well include an exam." On that record the office read the bill to authorize, but not require, a recertification examination.

The office also turned aside a constitutional objection. Someone had argued House Bill 241 violated article III, section 30 of the Texas Constitution, which forbids amending a bill during passage so as to change its original purpose, because the final bill did not gut the exam authority the way the original author wanted. The Attorney General said a court would not strike the law on that ground. A court might find the senate change consistent with the bill's original purpose, but more fundamentally, the "enrolled bill doctrine" bars courts from going behind a bill that has been signed, enrolled, and approved by the governor to second-guess what happened to it in the legislature.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The EMS certification provisions discussed here lived in chapter 773 of the Health and Safety Code; the specific section numbers and fee provisions described below may since have been amended or renumbered. Confirm the current statutes and Board of Health (now Department of State Health Services) rules before relying on anything described here.

What the opinion meant for those who asked

For the Department of Health (the requestor): The opinion told the department it had not lost its authority. Even though House Bill 241 removed the statutory command to test, the department could still adopt and enforce a recertification-examination requirement by rule, because the office read the final bill as preserving discretionary testing authority rather than abolishing it.

For EMS personnel at the time: Paramedics and EMTs could not assume the 1993 law had done away with recertification exams. Whether they would face a test going forward was left to the Board of Health, which the opinion said retained the option to keep, modify, or eventually drop testing for particular certification levels.

For ambulance services and EMS employers: The compromise the opinion described kept the testing question with the Board of Health rather than fixing an answer in statute, so employers' compliance obligations would track whatever rules the board chose to adopt, not a bright-line statutory ban on exams.

Background and statutory framework

The licensing and certification of EMS personnel was governed by subchapter C of chapter 773 of the Health and Safety Code. Before House Bill 241, section 773.050(b)(2) required the Texas Board of Health to set minimum standards for "emergency medical services personnel certification and performance, including certification, decertification, recertification, suspension, emergency suspension, and probation." Section 773.055 set fees for each application for an examination, including recertification examinations, and section 773.059 imposed an added $25 fee on someone applying to recertify after the certificate expired.

House Bill 241 went through several versions. As introduced, it deleted the board's authority to set minimum standards for recertification from section 773.050(b)(2) and stripped the recertification-examination references out of section 773.055. The House committee substitute left section 773.050 alone but reworked the fee sections. The decisive change came in the Senate: Senator Zaffirini's committee substitute added to section 773.050(b) a direction that the board "by rule shall establish minimum standards for . . . continuing education programs and examinations of emergency medical services personnel." That bill passed without further amendment.

Because the enacted text both dropped the mandatory-exam language and referred to examinations as a subject the board regulates, the Attorney General found it ambiguous on its face. Under the Code Construction Act (Government Code section 311.023), a court construing a statute, ambiguous or not, may weigh the object the legislature sought, the circumstances of enactment, and legislative history. The hearing testimony before the Senate Health and Human Services Committee uniformly described the amendment as a deliberate compromise to remove the statutory mandate while leaving the Board of Health free to require testing, so the office read House Bill 241 as authorizing, not prohibiting, a recertification examination.

On the constitutional question, article III, section 30 says "no bill shall be so amended in its passage through either House, as to change its original purpose." The office explained that even if the senate substitute had reversed the bill's original aim, the enrolled bill doctrine shields a signed and enrolled law from that kind of attack: courts will not "go behind" a bill approved by the governor to inquire into the changes it underwent in the legislature. The office cited Houston & T.C. R.R. Co. v. Stuart and James v. Gulf Ins. Co. for that rule and a treatise observing that section 30 "is not enforceable by the courts because the enrolled bill doctrine shields its noncompliance from judicial review."

Common questions

Did House Bill 241 ban Texas from testing EMTs and paramedics for recertification?
No. The Attorney General read the 1993 bill to remove the requirement that the department test, while leaving the Board of Health free to require a recertification examination if it chose. The bill authorized testing rather than forbidding it.

Why was the bill considered ambiguous?
Because the enacted version both deleted the old mandatory-testing language and added a clause telling the board to set standards for "examinations" of EMS personnel. Those two features pointed in different directions, so the office looked to legislative history to resolve the meaning.

What did the legislative history show?
At the Senate committee hearing, an ambulance-association representative, the department's general counsel, the EMS Advisory Council, and the Texas College of Emergency Physicians all described the senate amendment as a compromise that took the mandate out of the statute and returned the testing decision to the Board of Health.

Did the constitutional challenge succeed?
No. The office concluded a court would not strike House Bill 241 under article III, section 30. The enrolled bill doctrine keeps courts from going behind a signed, enrolled, governor-approved law to examine changes made during passage.

Citations

Statutory and constitutional provisions discussed:

• Tex. Health & Safety Code § 773.050(b) (Board of Health minimum standards for EMS personnel, including the senate-added clause on continuing education programs and examinations)
• Tex. Health & Safety Code § 773.055 (fees for EMS personnel certification examinations)
• Tex. Health & Safety Code § 773.059 (additional fee for recertification after expiration)
• Tex. Gov't Code § 311.023 (Code Construction Act; aids to statutory construction)
• Tex. Const. art. III, § 30 (no bill amended so as to change its original purpose)
• House Bill 241, Acts 1993, 73d Leg., ch. 251

Cases discussed:

• Houston & T.C. R.R. Co. v. Stuart, 48 S.W. 799, 804 (Tex. Civ. App. 1898), rev'd on other grounds, 50 S.W. 333 (Tex. 1899)
• James v. Gulf Ins. Co., 179 S.W.2d 397, 402 (Tex. Civ. App.-Austin 1944), rev'd on other grounds, 185 S.W.2d 966 (Tex. 1945)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0263
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0263.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

October 15, 1993

David R. Smith, M.D.
Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. DM-263

Re: Whether House Bill 241, Acts 1993, 73d Leg., ch. 251, prohibits the Texas Department of Health from requiring an examination for recertification of emergency medical service personnel (RQ-580)

Dear Dr. Smith:

You ask whether House Bill 241, Acts 1993, 73d Leg., ch. 251 (effective May 23, 1993), prohibits the Texas Department of Health (the "department") from requiring an examination for recertification of Emergency Medical Service ("EMS") personnel. The licensing and certification of EMS 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) required the Texas Board of Health (the "board") to establish minimum standards for, among other things, "emergency medical services personnel certification and performance, including certification, decertification, recertification, suspension, emergency suspension, and probation." Health & Safety Code § 773.050(b)(2). Section 773.055 provided for fees to accompany each application for examination for EMS personnel certification, including examinations for recertification.

As originally introduced, H.B. 241 deleted the board's authority to establish minimum standards for EMS recertification from section 773.050(b)(2), and omitted all references to recertification examinations in section 773.055. It also repealed section 773.059 which imposed "a fee of $25 in addition to the examination fee" on persons applying for recertification after the expiration of his or her certificate.

The house committee substitute bill, 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 recertification examinations and to provide for fees for recertification, and amended section 773.059(a) to omit any reference to an examination fee. The bill analysis for the house committee substitute bill states that H.B. 241 "would remove the requirement of an examination from the recertification process." House Comm. on Public Health, Bill Analysis, H.B. 241, 73d Leg. (1993). In comparing H.B. 241 and the house committee substitute, the bill analysis states, "HB 241 deleted authorization for the Department of Health to collect a $75 fee for recertification of EMS personnel. CSHB 241 authorizes the Department of Health to collect the fee." Id. at 2.

H.B. 241 was considered by the Senate Health and Human Services Committee on May 4, 1993. Senator Zaffirini, the senate sponsor, moved to amend the bill and to adopt a new senate committee substitute bill, 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 recertification of EMS personnel. Because it deletes references to mandatory recertification examinations and does not expressly provide that the department is permitted to require a recertification examination, but provides that the department "shall establish minimum standards for . . . continuing education programs and examinations 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 . . . ." 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.

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: "[R]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[,] 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 recertification testing and we felt like that was a premature move that needed to be examined carefully. . . . [T]his language does I think leave the decisions . . . at the level where they should be and that is [with] the advisory council [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 House, as to change its original purpose." Tex. Const. art. III, § 30. We do not believe that a court would conclude that H.B. 241 runs 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 recertification, in addition to removing the mandatory requirement, was not inconsistent with the bill's original purpose. More importantly, even if a court were to conclude that the intent of the senate committee substitute was completely contrary 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." Houston & T.C. R.R. Co. v. Stuart, 48 S.W. 799, 804 (Tex. Civ. App. 1898), rev'd on other grounds, 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 filed with the secretary of state, and it is well settled in this state that its validity cannot be so impeached.

James v. Gulf Ins. Co., 179 S.W.2d 397, 402 (Tex. Civ. App.-Austin 1944), rev'd on other grounds, 185 S.W.2d 966 (Tex. 1945) (citing cases). A commentator has explained that article III, section 30, "is not enforceable by the courts because the enrolled bill doctrine shields its noncompliance from judicial review." 1 D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE 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 Leg., 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

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnote 1: The commentator goes on to note that "[a] nongermane amendment to a bill is subject to point of order objection, however, and the rules of both houses contain several pages digesting rulings on this slippery question." 1 D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 162 (1977) (citations omitted).