Mr. James H. Havey, Director Opinion No. M-946

Texas Industrial Commission 814 Sam Houston Building Re: Whether the Texas Industrial Austin, Texas Commission may employ on a full-time basis persons who
are and intend to remain citizens of the Country of Mexico for its Mexico City Dear Mr. Havey: Office.

Inyour letter requesting anopinion from this office, you submit the following facts:

"Asyou are aware the Texas Industrial Commission has plans for the opening of an extension office inMexico City. Your recent opinion M-909, dated 20July, 1971 recognized legislative intention and authorized the payment of employee or employees salaries who were working and residing inMexico.
I,

. . .for the office to obtain its peak effectiveness and to obtain themaximum from the office itwill be necessary tohire aMexican-National, on apermanent basis for continuity purposes, who is completely bi-lingual both in reading andwriting."

With regard to these facts you question whether the Texas Industrial Commission may employ on a full-time basis persons who are and intend to remain citizens of the country ofMexico for itsMexico City office.

Section 2,Article IIIof Senate Bill No. 11, Regular Session, as amended by Senate Bill No. 7,First Called Session, Acts 62nd Legislature, 1971 (GeneralAppropriation Act) provides as follows:

-4630-Mr. James H. Havey, page 2. (M-946) .

"EXECUTIVE AND ADMINISTRATIVE DEPARTMENT AND AGENCIES SPECIAL PROVISIONS

"Sec. 2. EMPLOYMENT OFALIENS. Nomoney shall be paid out of any appropriation made in thisArticle forpersonal services for a longer period than ninety (90)days to anyperson who isnot a citizen of theUnited States unless the person has begun naturalization proceedings."

InAttorney General's Opinion M-909 (1971)this office held that:

"Subsections (a), (b),and (e)of Section

4,Article 6144(e), Vernon'5 Civil Statutes, grants to the Industrial Commission authority to open an extension office inMexico City, Mexico, D.F. and topay the salaries of employees who areworking and residing inMexico."

Webelieve that when the language of the above quoted Section of the appropriation bill is read inpari materia with the caption, which in this instance is also apart of the legislative enactment, it is evident that the Section
was intended to apply to the employment of aliens and that the only aliens not intended tobe reached by the enactment
are alienswho have begun naturalization proceedings. We do not believe the Section as read inpari materia with its caption was directed to the employment ofpersons neither aliens nor citizens of the United States. Employment of
aMexican national inMexico isnot employment of an alien. When the State of Texas undertakes aproprietary function in a foreign jurisdiction, itplaces itself in the position of any other alien employer doing business in the foreign country, andbecause the term alien isby definition relative to the location of use of the term, it seems clear thatunder the circumstances posed inyour opinion request, the State of Texas and not theMexican National is the alien involved. The employer is the foreigner, not the employee. The exception in favor ofpersons who have begunnaturalization proceedings is indicative that aliens in the United States are the persons towhom theban is directed. Whether the Legislature could enact avalid statute providing that the State was prohibited from employing foreign nationals in foreign countries is aquestion not reached in this opinion. Serious questions concerning

-4631-Mr. James H. Havey, page 3 (M-946)

foreign relations, a field inwhich the Federal government has exclusive jurisdiction, could be raised by such anenactment. cf.peon v.Miller, 234 S.W. 573 (Tex.Civ.App. 1921,nowrit); Purdy tFitzpatrick v. State, 71Cal.Zd 566, 456P.2d 645 (Cal.Supp. 1969).

Even more compelling, Section 2 ofArticle III of Senate Bill No. 11, an unreasonable and invidious discrimination on thebasis of alienage, violates the Fourteenth Amendment of the Federal Constitution. Seeplease, Antieau Modern Cons~titutionalLaw, Volume 1, Section 8:66.

It seems very clear that an alien, within the jurisdiction of the Courts of the United States and the State of Texas, can successfully urge that the alienage discrimination contained in the amroDriations bill is nat--~~ - ently unconstitutional, relying on suchholdings as,‘Graham
v. Richardson, U.S. 29 L.Ed.2d 534, s.ct.

(1971) h-g discs:tion inwelfare payments may not be b&ed on alienage; Takahashi v. Fish andGame Commission, 334U.S. 410 (1948) holding that a commercial fishina license mav not bewithheld because of alienaae:

.e ~~~~
and, Truax v. Raich, 239U.S. 33 (19151,holding that-aStatemay not validly enact a lawwhich requires that aliens be discriminated against by employers within the state. While there is some aged authority that a statemay discriminate on thebasis of alienage in employing people on public works projects and in areaswhere theremight exist reasonable grounds for the discrimination, the cited cases make it clear that any such discrimination is highly suspect andmust be shown tobe limited in effect to overriding considerations of equal dignity with the right being denied. The lack of any such limitation in the provision of the appropriations bill above quoted is constitutionally fatal. Indeed, under Graham v. Richardson, supra, there are grave auestions concernins the "contemcorarv vitalitv of the special public interest doctrine:" Nor have contemporary state courts hesitated to strike down alienage restrictions even on state public works projects. Seeplease, Purdy &Fitzpatrick v. State, supra, holding that a state lawwith ablanket prohibition against aliens in state employment interferes-with the comprehensive federal legislative scheme enacted for aliens, in addition to amounting to aviolation of the Fourteenth Amendment to the Federal Constitution.

-4632-Mr. James H. Havey, page 4. (M-946)

We do not believe there is anyvalid reason shown by the alienage restriction quoted above to support any argument that even though invalid as to aliens within the United States, the restriction isnevertheless valid as applied to foreign nationals in their own country, andwe therefore render our opinion that the quoted provision is, on its face, unconstitutional in toto. We express no opinion at this time onwhether abill could be drawn imposing diacriminations outside the jurisdiction of the United States which cannot be imposed within the United States. Inour opinion, serious questions exist concerning whether a state could do such a thing.

SUMMARY -------
For the reasons stated above, you are advised that Section 2,Article III of the General Appropriations Act, does not prohibit the Texas Industrial Commission from hiring aMexican National towork inMexico
on a full-time basis. Such Section violates the Fourteenth Amendment of the Federal Constitution and is unconstitutional.

yours,

Prepared by Samuel D.McDaniel Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman

Ivan William5 William Craig Harold Kennedy Bob Lattimore

ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -4633-