Untitled Texas Attorney General Opinion ( 1974 )


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  •                TRR      ATTORNEY              GENERAL
    OF TEXAS
    June 24, 1974
    The Honorable Robert S. Calvert                 Opinion No. H-    333
    Comptroller  of Public Account8
    State Finance Building                          Re: Validity of provirion in
    Austin, Texae                                   Appfoptiation  Act rertricting
    employment of aliapr.
    ~Dear Mr.   Calvert:
    The General Appropriatione     Act for fiecal 1974-1975 (Actr 1973,
    63rd Leg.,   ch. 659, p. 1786) containe, ae one of the rpecial provirionr
    applicable to executive and adminirtrative     dapaztnient and agenciee,  the
    followipg,  Art. III Section 2 (a’t p. 2054):
    No money rhall be paid out of any appropriation
    made in thir Article for personal rervicer   for a
    longer period than ninety (90) dayr to any perron
    who ir not a citizen of the United Stater unlerr the
    pereon bar begun naturalization proceedingr.
    You have aoked whether the provirion ir (1) unconrtitutional or (2)
    in conflict with other provirionr of the Act forbidding that perronnel trans-
    actions be made on the barie of national .origin (Sec. III, at p. 1967),
    We believe the firet pert of your,quertion ia definitely answered by
    the U. S. Supreme Court decirion in Sugarman v., Dougall, 
    413 U.S. 634
    ,
    (1973) where the Couzt had for conoideration a rection of the New York
    Civil Service Law providing:
    Except ae herein otherwire provided,      no perron
    ehall be eligible for appointment for any position in
    the competitive   clarr unlear he ir a citizen of the
    United Staten.
    p. 1539
    The Honorable   Robert   S. Calvert     page 2   (H-333)
    Citing careo Buch aa Graham v. Richardron,    
    403 U.S. 365
    (1971),
    the Court held the New York statute violated the Fourteenth Amendment’8
    equal protection guarantee.  And see Attorney General@’ Opinion0 0866
    (1939). R-2247 (1950). M-447 (1969), H-81 (1973), and H-157 (1973).
    The Court, however,     wan careful to note that it did not hold that,
    on the basis of an individual determination,     an alien might not be refuoed
    or discharged from public employment on the ba8ir of noncitieenrhip.          It
    further pointed out that ‘it did not hold that a rtate could not, in an approp-
    riately defined clan8 of positiona,   require citizenrhip as a qualification
    for office.                                                      .
    In a footnote the Court stated that it intimated no view aa to the
    conrtitutionality   of citizenship requirement8   impored in federal government
    employment.       And see Eoninooa v. Farah Manufacturing Company, 
    414 U.S. 86
    , (1973), concerning private industry hiring practicea.
    It ir our opinion that the quoted provirion of the Texan ApRropriation
    Act is too broad and ii violative   of the equal protection claure of the
    Fourteenth Amendment tomthe United Statea Conrtitution.
    In view of the foregoing   opinion, it ir unnecerrary for us to anawer
    whether the quoted provirion     conflictr with thone prohibiting national origin
    as a basin for personnel tranractionr.      But see Erniwa      v. Farah Manuf a -
    turing Company.
    SU.MMARY
    A.rtate may require citisenrhip or commencement
    of the naturaliration procena as a requirement for
    employment in specific,   appropriately defined poritionl.
    However a broad policy declaration that citizenrhip    or
    p. 1540
    ’   The Honorable      Robert S. Calvert          page 3   (H-333)
    filing for naturalization is a requirement for
    all State employment violate6 the equel protec-
    tion clause of the Fourteenth Amendment and
    ie unconstitutional.
    Very, tiuly yourn,
    *
    c/    Attorney   General   of Texan
    AP        ROVED:
    fi
    2
    LARR?~ F. tORK,        Fire/t Aoaistant
    5GLc=-=-u
    DAVID M. KENDALL,           Chairman
    Opinion Committee
    p. 1541
    

Document Info

Docket Number: H-333

Judges: John Hill

Filed Date: 7/2/1974

Precedential Status: Precedential

Modified Date: 2/18/2017