# THEA~TORNE~GENERAT~ OF TEXAS Au-. TEXAN 78711

August 30, 1974
The Honorable Jim Clark Chairman, House Committe on Labor P. 0. Box 2910, Capitol Station Austin, Texas 78767 Opinion No. H- 389 Re: Validity ofArt. 4528c, $lOA, V. T. C.S., as it relates to LVNs. Dear Representative Clark:

you have asked &&her Article 45~284; $lOA. V..T. C.S., prohibiting the membership of licepied vocational nurses’ (LVNs) in organizations either recognizing the right ,tostrike or permitting organized work stoppages, violates any provision of the Constitution ofthe State of Texas or the Conqtitution of the United Stat,es.

Article 4528~. $lOA, V. T.,C.S., provjdes that:

It‘shall be unlawful for any individual who has been licensed as a Licensed Vocational Nurse to be a member ofany group, organization, association, or union which advocates or~secognizes the right to strike, or which permits its members to engage in an organized work stoppage. Any person who has been licensed as a Licensed Vocational Nurse and who violates this Section of this Act, shall have his or her license suspended for a period of two (2) years, and the Board shall thereupon enter an order to such effect upon its minutes. It shall be incumbent upon the individual after the expiration oftwo (2) years to apply for anew license as a Licensed Vocational Nurse should such individual desire to engage in such .work as herein authorized by this Act. Itis the

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declared public policy ofthis State that a person who requires nursing care should be protected from organized work stoppages ofany kind or character. (Emphasis supplied). The statute clearly intends to penalize mere membership in a labor organization which recognizes the right to strike. Its provisions are in contrast to other Texas statutes which declare the public policy of the State to be:

. . . the right ofpersons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization and that in the exercise of su&h]iights all per’sons shall be free from’thrdats. force, intimidation or coercion. ”Art. 5154g. 81,ViT.‘C. 5;.
,. The state’s policy is not the same for public employei~s.‘
.’ Article 5154~. $4, V. T. C.S. Limits are placed on the authority ofpublic officers to enter into a collective bargaining contract. Article-515&“$1. State employees may forfeit the privilege of presenting their grievances to the government through a representative if the right to strike is claimed by their representative organization.Article 5154q §6; Amalgamated Transit Union, Local Div. ‘1338 v.‘~Dallas gublic~ Transit Board.--430 S.W. 2d 107, 119(Tex. Civ. Appr, Dallas 1968, writ,ief.~ n.r~.e.:, certr den. 396 U.S. 838); Dallas Independent School District v. American Federation of State, County and Municipal Employees, Local Union No. 1442, 330 S.W. 2d 702 (Tex. Civ. App., Dallas 1959, writ ref. n.r. e.). , The Texas Supreme Court construed Article 5154c, in Lunsford V. City of Bryan, 297 S.W. 2d 115,117 (Tax. 1957). and determined that the Legislature intended to protect “the right of membership in a union as well as the right ofnonmembership. ”

The U.S. Supreme Court has,had before it a state statute which permitted the prosecution ofa public employee for membership in an

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organization”‘known” tohave unlawful purposes and objectives. Elfbrandt v. Russell, 384 U.S. 11(1966). The statute was declared unconstitutional as violative ofthe freedom ofassociation protected by the First Amendment through the Due Process Clause of the 14thAmendment. Those whojoin an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. Laws such as this which are not restricted in scope to ,those whojoin with the ‘specific intent’ tofurther illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization.
. . ,A law which applies. to membership without the

‘specific intent’ tofurther the illegal aims of the organization infringes unnecessarily onprotected freedoms. Itrests on the doctrine of ‘guilt by association’ which has no place here. 384 U.S. at 17, 19. The Seventh Circuit has held, in part on the authority of Elfbrandt, supra, that allegations of discrimination by a school ,district against ,a teacher for union associations state a claim under the Constitution and, laws of the United States for purposes offederal court jurisdiction under 42 U.S. C. $1983. McLaughlin v. Tilendis, 398 F. 2d 287 (7th Cir., 1968).

. . . Even if this record disclosed that the union was connected with unlawful activity, the bare fact [of] that ,membership does notjustify charging .members with their organization’b misdeeds. 398 F. 2d at 289. The Fifth Circuit has agreed with McLaughlin, supra, reasoning that illegal intent is necessary tojustify the State’s interference with

### aperson’s associational freedoms. Orr v. Thorpe, 427 F. 2d 1129 (5th Cir., 1970).

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Similar results have been reached by the Tenth Circuit, Lontine v. VanCleave, 483 F. 2d 966 (10th Cir., 1973); by the Eighth Circuit, American Federation of State, County, and Municipal Employees v. Woodward, 406 F. 2d 137 (8th Cir. 1969). And see, Thomas v. Collins, 325 U.S. 516 (1945); Tischler v. Board of Education, 323 N.Y. S. 2d 508 (App. Div. ,. 1971). Cf., United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D. C., 1971), aff’d. onappeal, 404 U.S. 802 (1971).

Under $lOA an LVN’s license must be suspended for two years if he or she becomes a member in a prohibited organization. The penalty is tiitkr limited to members who strike, nor to membership accompanied by a specific intent to participate in unlawful activities. Therefore we believe that, .underthe above discussed authorities, $10A. prohibiting mere membership in alabor union which recognizes the right to strike would be held to infringe unnecessarily onfneedims protected by the Due Process Clause ofthe 14thAmendment. SUMMARY Section 1OAofArticle 4528c, V. T. C.S., prohibiting mere membership by LVNs in organizations which recognize the right to strike, is unconstitutional since it infringes unnecessarily on the freedom of association protected by the First Amendment to the United States Constitution. Very truly **yours,**

Attorney General of Texas

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DAVID M. KENDALL, Chairman Opinion Committee 

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