Untitled Texas Attorney General Opinion ( 1971 )


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  • Mr. James H. Havey, Director     Opinion No. M- 946
    Texas Industrial Commission
    814 Sam Houston Building         Re:   Whether the Texas Industrial
    Austin, Texas                          Commission may employ on a
    full-time basis persons who
    are and intend to remain
    citizens of the Country of
    Mexico for its Mexico City
    Dear Mr.   Havey:                      Office.
    In your letter requesting an opinion from this office,
    you submit the following facts:
    "As you are aware the Texas Industrial
    Commission has plans for the opening of an
    extension office in Mexico City. Your re-
    cent opinion M-909, dated 20 July, 1971 rec-
    ognized legislative intention and authorized
    the payment of employee or employees salaries
    who were working and residing in Mexico.
    I,
    . . . for the office to obtain its
    peak effectiveness and to obtain the maxi-
    mum from the office it will be necessary
    to hire a Mexican-National, on a permanent
    basis for continuity purposes, who is com-
    pletely bi-lingual both in reading and writ-
    ing."
    With regard to these facts you question whether the
    Texas Industrial Commission may employ on a full-time basis
    persons who are and intend to remain citizens of the coun-
    try of Mexico for its Mexico City office.
    Section 2, Article III of Senate Bill No. 11, Regular
    Session, as amended by Senate Bill No. 7, First Called Ses-
    sion, Acts 62nd Legislature, 1971 (General Appropriation
    Act) provides as follows:
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    .
    Mr. James H. Havey, page 2.     (M-946)
    "EXECUTIVE AND ADMINISTRATIVE DEPART-
    MENT AND AGENCIES SPECIAL PROVISIONS
    "Sec. 2. EMPLOYMENT OF ALIENS. No money
    shall be paid out of any appropriation made in
    this Article for personal services for a longer
    period than ninety (90) days to any person who
    is not a citizen of the United States unless
    the person has begun naturalization proceedings."
    In Attorney General's Opinion M-909   (1971) this office
    held that:
    "Subsections (a), (b), and (e) of Section
    4, Article 6144(e), Vernon'5 Civil Statutes,
    grants to the Industrial Commission authority
    to open an extension office in Mexico City,
    Mexico, D.F. and to pay the salaries of em-
    ployees who are working and residing in Mexico."
    We believe that when the language of the above quoted
    Section of the appropriation bill is read in pari materia
    with the caption, which in this instance is also a part of
    the legislative enactment, it is evident that the Section
    was intended to apply to the employment of aliens and that
    the only aliens not intended to be reached by the enactment
    are aliens who have begun naturalization proceedings.   We
    do not believe the Section as read in pari materia with its
    caption was directed to the employment of persons neither
    aliens nor citizens of the United States. Employment of
    a Mexican national in Mexico is not employment of an alien.
    When the State of Texas undertakes a proprietary function
    in a foreign jurisdiction, it places itself in the position
    of any other alien employer doing business in the foreign
    country, and because the term alien is by definition rela-
    tive to the location of use of the term, it seems clear
    thatunder the circumstances posed in your opinion request,
    the State of Texas and not the Mexican National is the
    alien involved. The employer is the foreigner, not the
    employee.  The exception in favor of persons who have be-
    gun naturalization proceedings is indicative that aliens
    in the United States are the persons to whom the ban is
    directed. Whether the Legislature could enact a valid stat-
    ute providing that the State was prohibited from employing
    foreign nationals in foreign countries is a question not
    reached in this opinion.   Serious questions concerning
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    Mr. James H. Havey, page 3     (M-946)
    foreign relations, a field in which the Federal government
    has exclusive jurisdiction, could be raised by such an en-
    actment. cf. peon v. Miller, 
    234 S.W. 573
    (Tex.Civ.App.
    1921, no writ); Purdy t Fitzpatrick v. State, 71 Cal.Zd
    566, 
    456 P.2d 645
    (Cal.Supp. 1969).
    Even more compelling, Section 2 of Article III of
    Senate Bill No. 11, an unreasonable and invidious discrim-
    ination on the basis of alienage, violates the Fourteenth
    Amendment of the Federal Constitution.   See please, Antieau
    Modern Cons~titutional Law, Volume 1, Section 8:66.
    It seems very clear that an alien, within the juris-
    diction of the Courts of the United States and the State
    of Texas, can successfully urge that the alienage dis-
    crimination contained in the amroDriations
    --`` -         bill is nat-
    ently unconstitutional, relying on such holdings as,‘Graham
    v. Richardson,        U.S.         
    29 L. Ed. 2d 534
    ,        s.ct.
    (1971) h-g      discs:tion      in welfare payments
    may not be b&ed on alienage; Takahashi v. Fish and Game
    Commission, 
    334 U.S. 410
    (1948) holding that a commercial
    fishina license mav not be withheld because of alienaae:
    .e   ````
    and, Truax v. Raich, 
    239 U.S. 33
    (19151, holding that-a-
    State may not validly enact a law which requires that aliens
    be discriminated against by employers within the state.
    While there is some aged authority that a state may dis-
    criminate on the basis of alienage in employing people on
    public works projects and in areas where there might exist
    reasonable grounds for the discrimination, the cited cases
    make it clear that any such discrimination is highly sus-
    pect and must be shown to be limited in effect to overriding
    considerations of equal dignity with the right being denied.
    The lack of any such limitation in the provision of the
    appropriations bill above quoted is constitutionally fatal.
    Indeed, under Graham v. 
    Richardson, supra
    , there are grave
    auestions concernins the "contemcorarv vitalitv of the
    special public interest doctrine:"    Nor have contemporary
    state courts hesitated to strike down alienage restric-
    tions even on state public works projects.    See please,
    Purdy & Fitzpatrick v. 
    State, supra
    , holding that a state
    law with a blanket prohibition against aliens in state em-
    ployment interferes-with the comprehensive federal legis-
    lative scheme enacted for aliens, in addition to amounting
    to a violation of the Fourteenth Amendment to the Federal
    Constitution.
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    Mr. James H. Havey, page 4.      (M-946)
    We do not believe there is any valid reason shown by
    the alienage restriction quoted above to support any argu-
    ment that even though invalid as to aliens within the United
    States, the restriction is nevertheless valid as applied
    to foreign nationals in their own country, and we there-
    fore render our opinion that the quoted provision is, on
    its face, unconstitutional in toto. We express no opinion
    at this time on whether a bill could be drawn imposing dia-
    criminations outside the jurisdiction of the United States
    which cannot be imposed within the United States.  In our
    opinion, serious questions exist concerning whether a state
    could do such a thing.
    SUMMARY
    -------
    For the reasons stated above, you are
    advised that Section 2, Article III of the
    General Appropriations Act, does not pro-
    hibit the Texas Industrial Commission from
    hiring a Mexican National to work in Mexico
    on a full-time basis.  Such Section violates
    the Fourteenth Amendment of the Federal Con-
    stitution and is unconstitutional.
    yours,
    Prepared by Samuel D. McDaniel
    Assistant Attorney General
    APPROVED:    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Ivan William5
    William Craig
    Harold Kennedy
    Bob Lattimore
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant
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