Case Information
*1 August 18, 1988
Rm MATTGX
A-NW GEXERAL
Honorable Allen Hightower Opinion Wo. JW-941 Chairman Re: Circumstances under
Corrections Committee Texas House of Representatives which a state employee may be discharged P. 0. BOX 2910 Austin, Texas 78769 (RQ-1418) Dear Representative Hightower:
you ask whether all state employees are employed "at will." An "at will" employee serves at the will of the employer and can be fired for any reason. Eastline & R. R. v. Scott, 10 S.W. 99 (Tax. 1888).
Under Texas law an employee hired for an unspecified period of time is generally an "at will" employee. &g Sabine Pilot Service. Inc. v. Hauck 687 S.W.Zd 733 (Tex. 1985). That general rule applies to'state employees as well as private employees. Attorney General Opinion M-628 (1970). &!g &!Q Christian v. ltsmw& I 649 F.Supp. 1475 (S.D. Tex. 1986).
Despite that general rule, however, a particular state employee may have a property interest in his employment protected by the fourteenth amendment to the United States Constitution. Whether a pa.rticular state employee has a property interest in his job depends on whether there are circumstances that give rise to a legitimate claim of entitlement. Do rd of Reaents v. Roth 408 U.S. 564 (1972). The source of suzh a claim can be a &ate statute, a .local ordinance, a rule, or a mutually explicit understanding. Perrv v. Sindermann, 408 U.S. 593, 601 (1972).
Some state employees are subject to statutes that create property interests by providing that dismissal must Gov't Code 5 411.007 (Department be for cause. &G, u, of public Safety employees may be discharged only for "just cause") . Other state employees are subject to statutes that provide that the employees serve at will. m, .&&, Nat. Res. Code 5 31.020: Batterton v. Texas General Land Off&G 783 F.2d 1220 (5th Cir. 1986), cert. denied, 107 S.Ct. 316: *2 Honorable Allen Hightower - Pago 2 (JM-941)
. Batterton interpreted section 31.020 of the Natural Resources Code as establishing "at will" status for employ- ees of the General hand Office. 783 F.2d at 1222-23. m also held that informal understandings and agency customs could not give rise to a property interest in the face of a statute Providing that employees serve at will. statute to the contrary, agency
When there is regulations may also rise to property interests. For example, university 'regulations #at provided that instructor-counselor at Texas A&M University could only i?: . . dismissed for "adequate cause- gave rise to a property
interest. paae v. D&aune, 837 F.2d 233 (5th Cir. 1988). sss aks Wvitt v. Universitv of Texa at El Pa Q 759 F.2d 1224 (5th Cir. 1985), cert. M, 4;6 U.S. 11:4'(1986).
In summary, there is a general rule that state employees in Texas serve at will. To determine whether that general rule applies to a particular employee, however, it is necessary to examine relevant statutes and regulations and to determine whether express or implied promises have been made which limit the right of the state to terminate an employee.
you should also be aware that the "at will" doctrine is limited by doctrines and statutes that prohibit termination of employment for certain reasons. For example, the state may not discharge employees for exercising their right to
107 s.ct. 2891, 2896 may be entitled to reinstatement if dismissed for exercising right of free speech). im usi 42 U.S.C. S 2000e-2 (prohibiting discrimination based on race, color, religion, sex, or national origin): V.T.C.S. art. 5221k (Human Rights Commission Act). Another example of a statute that limits the "at will" doctrine is article 5154c, V.T.C.S., which provides that no person shall be denied public employment based on membership or nonmembership in a labor organiza- tion. m m V.T.C.S. art. 625;-16a ("whistle blowePq statute): T as ex
Mental Health and Mental Retardation, 746 g.W.2: fOz:ex. 1988): Attorney General Opinion JW-227 (1984).
SUMMARY As a general rule, state employees serve at will. A particular state employee mayI however, have a property interest in his job. Whether a particular state employee has a *3 Honorable Allen Hightower - Page 3 (JF+g41)
property interest in hie job depends on whether his circumstances give rise to a leg- itimate claim of entitlement. Also, various statutes and decisions place limitations on the "at will" doctrine by prohibiting termination for specified reasons.
Very truly yo , L-l b
A -i I M MATTOX Attorney General of Texas MARY KELLER
First Assistant Attorney General
mu MCCReARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk and Karen Gladney Assistant Attorneys General