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 of Art. 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 ,to strike or permitting organized work stoppages, 

violates any provision of the Constitution of the 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 of any 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 of two (2) years to apply for 

a new license as a Licensed Vocational Nurse 

should such individual desire to engage in such 

.work as herein authorized by this Act. It is the 

p. ~1823 
The Honorable Jim Clark page 2 (H-389) 

declared public policy of this State that a person 

who requires nursing care should be protected from 

organized work stoppages of any 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 of persons 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. 8 1, Vi T.‘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 of public 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 of nonmembership. ” 

The U.S. Supreme Court has, had before it a state statute which 

permitted the prosecution of a public employee for membership in an 

p. ,1824 
The Honorable Jim Clark page 3 (H-389) 

organization”‘known” to have unlawful purposes and objectives. Elfbrandt 

v. Russell, 384 U.S. 11 (1966). The statute was declared unconstitutional 

as violative of the freedom of association protected by the First Amendment through the Due Process Clause of the 14th Amendment. 

Those who join 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 who join 

with the ‘specific intent’ to further 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’ to further the illegal aims of the 

organization infringes unnecessarily on protected 

freedoms. It rests 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 of federal 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 not justify 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 to justify the State’s interference with a person’s 

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

,p. 1825 
The Honorable Jim Clark page 4 (H-389) 

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. on appeal, 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 a labor union which recognizes the right to strike 

would be held to infringe unnecessarily onfneedims protected by the 

Due Process Clause of the 14th Amendment. 

SUMMARY 

Section 1OA of Article 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 

p. 1826 
The Honorable Jim Clark page 5 (H-389) 

DAVID M. KENDALL, Chairman 

Opinion Committee 

lg 

p. 1827