Untitled Texas Attorney General Opinion

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