Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
May 18, 1983
JIM MATTOX
Attorney General
Honorable Ed Emmett Opinion No. JM-33
Supreme Court Building
P. 0. BOX 12548
Chairman
Austin. TX. 78711. 2548 Committee on Cultural & Re: Constitutionality of pro-
5121475~2501 Historical Resources visions in Senate Bill No. 427
Telex 9101874.1387 Texas House of Representatives relating to race, creed, sex,
Telecopier 5121475-0288 P. 0. Box 2910 religion, national origin, and
Austin, Texas 78769 geographical distribution of
1807 Main St., Suite 1400 appointees to state commission
Dallas. TX. 75201-4709
2141742-8944 Dear Representative Emmett:
4824 Alberta Ave., Suite 180
You have requested our opinion regarding the constitutionality of
El Paso, TX. 79905-2793 a portion of Senate Bill No. 427, presently pending in the
915/533-3484 Sixty-eighth Legislature. The bill provides, with respect to
appointments to the State Library and Archives Commission:
p,20 Dallas Ave., Suite 202
,OUS,O”, TX. 77002-8986
Appointments to the Commission shall be made with
7131850-0888 due regard for the race, creed, sex, religion,
national origin, and geographical distribution of
the appointees.
806 Broadway, Suite 312
Lubbock, TX. 79401-3479
8081747-5238
Article I, section 3a, of the Texas Constitution states:
Equality under the law shall not be denied or
4309 N. Tenth. Suite S abridged because of sex, race, color, creed, or
McAllen. TX. 78501~1885 national origin.
512/882-4547
Article I, section 4, of the Texas Constitution provides:
200 Main Plaza.suite 400
San Antonio. TX. 782052797 No religious test shall ever be required as a
5121225.4191 qualification to any office, or public trust, in
this State; nor shall any one be excluded from
An Egual Opportunity/ holding office on account of his religious
Affirmative Action Employer sentiments, provided he acknowledge the existence
of a Supreme Being.
In Mercer v. Board of Trustees, North Forest Independent School
District, 538 S.W.2d 201 (Tex. Civ. App. - Houston [14th Dist.] 1976,
writ ref'd n.r.e.), the court, in analyzing article I, section 3a,
adopted the "two-tiered" approach to judicial review devised by the
United States Supreme Court in addressing classifications under the
p. 140
Honorable Ed Emmett - Page 2 (JM-33)
federal equal protection clause. Under one approach, the "rational
basis" test, the court merely decides whether the classification is:
reasonable, not arbitrary, and. . . rest[s] upon
some ground of difference having a fair
substantial relation to the object of the
legislation.
538 S.W.2d at 204. This is a permissive standard of judicial review.
Id. See also Reed v. Reed, 404 U.S. 71, 76 (1971). Under the "strict
scrutiny" test, on the other hand, the classification will be upheld
only if the governmental body shows that the classification is
necessary to promote a compelling interest. See Dunn v. Blumstein,
405 U.S. 330. 34 (1972). Strict scrutiny -
is triggered either by laws which affect certain
'fundamental rights'. . . or which provide for
different treatment of persons on the basis of a
'suspect classification' (such as race, alienage,
and national origin).
538 S.W.2d at 204.
Under the plain language of article I, sections 3a and 4, of the
Texas Constitution race, creed, sex, religion and national origin are
suspect classifications. In our opinion, it is difficult to imagine
how a legislative directive to select members of a public body on the
basis of such suspect categories could serve a compelling state
interest. We are aware of no judicial decision which has so held, and
we must therefore conclude that that portion of Senate Bill No. 427
which requires consideration to be given to any such suspect
classification in making appointments to the commission is, on its
face, violative of article I, sections 3a and 4, of the Texas
Constitution.
On the other hand, geographical distribution has not been held to
be a suspect classification. See Hodel v. Indiana, 452 U.S. 314, 332
(1981); Halt Civic Club v. Cityof Tuscaloosa, 439 U.S. 60, 70 (1978).
Also, because no arguable fundamental rights are involved, strict
scrutiny has not been triggered. As a result, the rational basis test
is applicable. See Schweiker v. Wilson, 450 U.S. 221, 234 (1981); Cf.
Graham v. Richardson. 403 U.S. 365 (1971) (classifications based=
alienage are subject to strict scrutiny). We are unable to say that
selection of members of the State Library and Archives Comission on
the basis of geographical distribution does not "rest upon some ground
of difference having a fair and substantial relation to the object of
the legislation." Mercer, supra, at 204. Thus, we conclude that that
portion of Senate Bill No. 427 which requires consideration to be
given to geographical distribution in making appointments to the
commission is not, on its face, unconstitutional. -.
p. 141
.
Honorable Ed Emmett - Page 3 (J&33)
The author of the amendment has asked if the following language
would be constitutional:
It is the intent of the legislature that the
membership of the commission reflect the
historical and cultural diversity of the
inhabitants of this state; therefore, appointments
to the commission should be made without
discrimination based on race, creed, sax,
religion, national origin or geographical
distribution of the appointees.
This language is distinguishable from the portion of Senate Bill No.
427 which we have discussed. The first sentence of the proposed
language states a reasonable legislative purpose with respect to the
composition of the State Library and Archives Commission. Moreover,
this language does not in itself direct any official to engage in any
action, constitutional or otherwise.
The second sentence requires that appointments to the commission
be made on a non-discriminatory basis, and thus merely reiterates the
requirements of article I, section 3a, of the Texas Constitution that
equality under the law not be denied or abridged because of sex, race,
color, creed, or national origin, and of article I, section 4, that no
religious test be required as a qualification to any office in this
state. In our opinion the provision is constitutional.
SUMMARY
Thelegislature may not, consistent "ith
article I, sections 3a and 4, of the Texas
Constitution, require consideration to be given to
matters of sex, race, color, creed, or national
origin in making appointments to the State Library
and Archives Commission, but is not prohibited
from requiring that consideration be given to
geographical distribution.
&?Jfh
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
p. 142
Honorable Ed Emett - Page 4 (JM-33)
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton
p. 143