Case Information

*1 TRR ATTORNEY GENERAL OF TEXAS

June 24, 1974 Opinion No. H- 333 Comptroller of Public Account8 Re: Validity of provirion in

State Finance Building 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 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 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.

Citing careo Buch aa Graham v. Richardron, 403 U.S. 365 (1971), the 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 It or discharged from public employment on the ba8ir of noncitieenrhip. 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 tom the 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 v. Farah Manuf - as a basin for personnel tranractionr. But see Erniwa turing Company.

SU.MMARY A.rtate may require citisenrhip or commencement of the naturaliration procena as a employment in specific, appropriately defined poritionl. However a broad policy declaration that citizenrhip or *3 ’

filing for naturalization is 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