Untitled Texas Attorney General Opinion

February 17,200O
Mr. Vernon M. Arrell, Commissioner Opinion No. JC-0183
Texas Rehabilitation Commission
4900 North Lamar Boulevard Re: Selective service verification for state employ-
Austin, Texas 78751-2399 ment under section 651.005 of the Government
Code (RQ-0118-JC)
Dear Commissioner Arrell:
You have requested our opinion as to the meaning of a provision of a Texas law that a state
agency may not hire as an employee any person required to register with the selective service system
unless the person presents proof of such registration or exemption therefrom. For the reasons set
forth below, we conclude that the statute applies only to individuals who are at present between the
ages of eighteen and twenty-five inclusive.
The most recent session of the legislature enacted section 65 1.005 of the Government Code,
by passing House Bill 558,’ which provides:
(a) An agency in any branch of state government may not hire a
person as an employee if the person is of the age and gender that
would require a person residing in the United States to register with
the selective service system under federal law, unless the person
presents proof of the person’s:
(1) registration with the selective service system as required
by federal law; or
(2) exemption from registration with the selective service
system.
‘Act of May 12, 1999,76tb Leg., R.S., ch. 171,$ 1,1999 Tex. Gen. Laws 640.
Mr. Vernon M. Arrell - Page 2 (X-0183)
(b) This section does not apply to a person employed by a state
agency before September 1, 1999, as long as the person’s
employment by the agency is continuous.
TEX. GOV’TCODEANN. 5 65 1.005 (Vernon Supp. 2000) (emphasis added).* As you indicate, current
federal law requires only males who are at least eighteen years of age but less than twenty-six years
ofage to register with the selective service system. See 50 U.S.C. app. § 453 (1994). The selective
service system registration requirement is applicable only to males born on or after January 1,196O.
See Proclamation No. 4771, 45 Fed. Reg. 45247 (1980). The question before us is whether the
language of section 651.005 requires proof of selective service compliance of all males born on or
after January 1,1960, or whether proof is required only for those males between the ages of eighteen
and twenty-five inclusive at the time they are considered for state employment, i.e., does the word
“is” include “was”?
It is instructive to contrast Texas law with its federal counterpart, which provides, in relevant
part:
(a) An individuals
(1) who was born after December 31, 1959, and is or was
required to register under section 3 of the Military Selective Service
Act (50 U.S.C. App. 453); and
(2) who is not so registered or knowingly and willfully did not so
register before the requirement terminated or became inapplicable to
the individual,
shall be ineligible for appointment to a position in an Executive
agency.
5 U.S.C. 5 3328 (1994) (emphasis added). Thus, federal law makes clear that the registration
requirement is applicable to all males born on or after January 1, 1960, regardless of their age at the
time they. apply for federal employment. “Is” and “was” are both explicitly covered.
As we have noted, the Texas statute, by contrast, includes only “is.” Section 3 11 .O11 of the
Government Code provides that “[wlords and phrases shall be read in context and construed
according to the rules of grammar and common usage.” TEX. GOV’T CODE ANN. 3 11 .Ol l(a) (Vernon
1998); see&o Exparte Anderson, 902 S.W.2d 695,699 (Tex. App.-Austin 1995, pet. denied). The
Oxford English Dictionary defines “is” as the singular present indicative of the verb “be.” See VIII
OXFORD ENGLISHDICTIONARY104 (2d ed. 1989). “Be” is defined, inter alia, as “[t]o have or take
‘Another unrelatedsection 65 1.005 was also enactedby the 76th Texas Legislature. See Act of May 11, 1999,
76th Leg., RX, ch. 279,g 1,1999 Tex. Gen. Laws 1147,1148.
Mr. Vernon M. Arrell - Page 3 (X-0183)
place in the world of fact, to exist, occur, happen”; or again, as “[t]o come into existence, come
about, happen, occur, take place, be acted or done.” II id. at 3. As the court said in Raines v. Sugg,
930 S.W.2d 912,913 (Tex. AppFort Worth 1996, no writ), “[wlhen [the language of] a statute is
clear and unambiguous, no construction by the court is necessary,” and its plain meaning must be
given effect. It is difficult to imagine a word whose common usage and plain meaning are clearer
and less ambiguous than the word “is.”
Furthermore, section 3 11 ,012 of the Government Code provides that “[wlords in the present
tense include the future tense.” TEX. GOV'T CODE ANN. § 311.012(a) (Vernon 1998). On the basis
ofthe common legal maxim known as expressio unius est exclusio alterius, which signifies that the
mention or enumeration of one person, thing, consequence, or class is tantamount to an express
exclusion of all others, section 3 11.012 implies that words in the present tense exclude other tenses,
including the past tense. See State v. Mauritz-Wells Co., 175 S.W.2d 238,241 (Tex. 1943) (“It is
a settled rule that the express mention or enumeration of one. , thing. is equivalent to an express
exclusion of all others.“); Texas Real Estate Comm ‘n Y. Century 21 Sec. Realty, Inc., 598 S.W.2d
920, 922 (Tex. Civ. App.-El Paso 1980, writ ref d n.r.e.) (defining expressio unius est exclusio
alterius); Harris County v. Dowlearn, 489 S.W.2d 140, 146 (Tex. Civ. App.-Houston [14th Dist.]
1972, writ refd n.r.e.) (“The express mention or enumeration of one thing is equal to an express
exclusion of all others.“). Thus, we conclude that “is” for purposes of section 65 1.005 does not
include “was.”
In our opinion, it is clear, both from the plain meaning of the word “is,” and from the obvious
contrast with the language of the federal statute, that section 65 1.005 applies only to those males
who are at least eighteen years of age but less than twenty-six years of age at the time of their
consideration for state employment. Only those individuals must furnish proof of selective service
registration or exemption therefrom as a condition of state employment.
Mr. Vernon M. Arrell - Page 4 (JC-0183)
SUMMARY
Section 65 1.005 of the Government Code requires only those
males who are between the ages of eighteen and twenty-five years
inclusive to furnish proof of either selective service registration or
exemption therefrom as a condition of state employment.
N CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee