¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
When a statute has been amended twice during the same Legislative Session with two different effective dates and the two statutes cannot be harmonized, which statute controls?

¶1 In the 2005 First Regular Session of the 50th Legislature two separate legislative bills were enacted into law amending the definition of the term "testing facility" in the Standards for Workplace Drug and Alcohol Testing Act ("Act") (40 O.S. 2001 & Supp.2005, §§ 551 - 565). See 2005 Okla. Sess. Laws ch. 134, § 1; 2005 Okla. Sess. Laws ch. 190, § 5 (amending 40 O.S. 2001, § 552). The Act does not require or encourage employers to conduct drug or alcohol testing, but provides that with certain exceptions employers who choose to conduct drug or alcohol testing of job applicants or employees are subject to the Act. 40 O.S. 2001, § 553(A). Under the Act, qualifications for testing facilities are set forth by statute. Id. §§ 557(A)(1). The State Department of Health is required to license testing facilities and shall promulgate rules relating to the issuance, revocation, suspension and nonrenewal of the licenses. Id. § 558(A).

¶2 The statute which prompts your question, 40 O.S. Supp.2005, § 552, was first amended by Senate Bill 374. See 2005 Okla. Sess. Laws ch. 134, § 1. The amendment was approved by the Governor on May 2, 2005 with an effective date of November 1, 2005. That amendment altered the definition of "testing facility." The text of the bill read as follows:

¶3 That amendment deleted language from the definition of "testing facility" which had been in existence since the year 2000, removing from the definition on-site drug screening tests to screen out negative test results under certain conditions. See 2000 Okla. Sess. Laws ch. 335, § 1(15).

¶4 The Legislature, through House Bill 1502, also amended the statute at 2005 Okla. Sess. Laws ch. 190, § 5 with approval by the Governor on May 18, 2005 and an effective date of September 1, 2005. That later amendment maintained the language deleted by SB 374 and added the words underscored in the definition below, changing the definition of "testing facility" to:

2005 Okla. Sess. Laws ch. 190, § 5.

¶5 The two amendments cannot be harmonized as they contain conflicting definitions of the term "testing facility." One provides an exception from the definition of "testing facility" for on-site drug or alcohol screening tests under certain conditions while the other does not. These conflicting amendments raise the question of which amendment controls.

¶6 The general rule of statutory construction is that when there is an irreconcilable conflict between two statutes, later-enacted legislation, as the most recent expression of legislative will, controls over earlier-enacted provisions. Pickett v. Okla. Dep't of Human Serv., 932 P.2d 543, 545 (Okla. 1996). The later-enacted statute operates as a repeal of the earlier to the extent that they are repugnant. Id. The Oklahoma Supreme Court, in recognizing that the latest enactment will ordinarily prevail, has said that this general principle:

Trask v. Johnson , 452 P.2d 575, 577 (Okla. 1969).

¶7 Applying the rule of construction that the later-enacted provision controls, H.B. 1502 is the controlling statute as it was approved by the Governor on May 18, 2005, a later date than S.B. 374 which was approved by the Governor May 2, 2005. See 2005 Okla. Sess. Laws ch. 134, § 1; 2005 Okla. Sess. Laws ch. 190, § 5.

¶8 The legal principle of repeal by implication also applies here. "It is a cardinal principle of construction that repeals by implication are not favored. " City of Tulsa v. Smittle, 702 P.2d 367, 370 (Okla. 1985) (citation omitted). "When there are two acts upon the same subject, the rule is to give effect to both if possible." Id. This presumption is especially strong against the implied repeal of an act by another at a later date in the same session of the Legislature. Okla. Ass'n of Mun. Attorneys v. State, 577 P.2d 1310, 1315 (Okla. 1978). However, where there is an irreconcilable conflict between two statutes, the later modifies the earlier, even where both sections were enacted in the same official codification. City of Sand Springs v. Dep't of Pub. Welfare, 608 P.2d 1139, 1151 (Okla. 1980). Applying these principles here, although H.B. 1502 did not explicitly repeal S.B. 374, we find an irreconcilable conflict constituting an implied repeal of S.B. 374.

¶9 An additional concern exists in the question you raise as the earlier-enacted provision, S.B. 374, has an effective date of November 1, 2005 while the later-enacted provision, H.B. 1502, has an earlier effective date of September 1, 2005. Thus, we must consider the legal effect of the fixing of an effective date by the Legislature.

¶10 Courts have held that the fixing of an effective date is equivalent to a legislative declaration that a statute will have no effect until the date designated. Phillips v. D. & J. Enter., Inc., 288 So.2d 137, 138 (Ala. 1973); Iowa v. Allan, 166 N.W.2d 752, 760 (Iowa 1969) (citations omitted). In Cities Service Oil Co. v. Oklahoma Tax Commission, 129 P.2d 597, 598-99 (Okla. 1942), the Oklahoma Supreme Court considered a situation where a provision in a statute placed the statute in effect on a date specified in the future, yet contained an emergency clause providing that the statute would take effect after its passage and approval. The court stated that the emergency clause did "not fix the date at which the legislation shall become effective." Id. at 598. In noting that the emergency clause was subordinate to the effective date, the court provided:

Id. at 599. Under this reasoning, the significance of an effective date is that it fixes a time when a statute becomes effective. An effective date does not determine which of two conflicting statutes controls.

¶11 By enacting H.B. 1502, the Legislature repealed S.B. 374 before it was to take effect. See 2005 Okla. Sess. Laws ch. 134, § 1; 2005 Okla. Sess. Laws ch. 190, § 5. If the statute had become effective, any person providing laboratory services to test for drugs or alcohol would have had to comply with the Act, and there would be no exception for on-site screening tests under the conditions set forth in the statute. However, H.B. 1502 controls and on-site drug or alcohol screening tests are an exception to the definition of "testing facility" for purposes of the Standards for Workplace Drug and Alcohol Testing Act under certain conditions.

W.A. DREW EDMONDSON
Attorney General of Oklahoma

SANDRA D. RINEHART
Senior Assistant Attorney General