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. 

In your letter requesting an opinion from this office, 

you submit the following facts: 

"As you are aware the Texas Industrial 

Commission has plans for the opening of an 

extension office in Mexico City. Your recent opinion M-909, dated 20 July, 1971 recognized legislative intention and authorized 

the payment of employee or employees salaries 

who were working and residing in Mexico. 

I, . . . for the office to obtain its 

peak effectiveness and to obtain the maximum from the office it will be necessary 

to hire a Mexican-National, on a permanent 

basis for continuity purposes, who is completely bi-lingual both in reading and writing." 

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 of Mexico for its Mexico City office. 

Section 2, Article III of Senate Bill No. 11, Regular 

Session, as amended by Senate Bill No. 7, First Called Session, Acts 62nd Legislature, 1971 (General Appropriation 

Act) provides as follows: 

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

. 

"EXECUTIVE AND ADMINISTRATIVE DEPARTMENT AND AGENCIES SPECIAL PROVISIONS 

"Sec. 2. EMPLOYMENT OF ALIENS. No money 

shall be paid out of any appropriation made in 

this Article for personal services for a longer 

period than ninety (90) days to any person who 

is not a citizen of the United States unless 

the person has begun naturalization proceedings." 

In Attorney 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 in Mexico City, 

Mexico, D.F. and to pay the salaries of employees who are working and residing in Mexico." 

We believe that when the language of the above quoted 

Section of the appropriation bill is read in pari materia 

with the caption, which in this instance is also a part 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 to be reached by the enactment 

are aliens who have begun naturalization proceedings. We 

do not believe the Section as read in pari materia with its 

caption was directed to the employment of persons neither 

aliens nor citizens of the United States. Employment of 

a Mexican national in Mexico is not employment of an alien. 

When the State of Texas undertakes a proprietary function 

in a foreign jurisdiction, it places itself in the position 

of any other alien employer doing business in the foreign 

country, and because the term alien is by definition relative to the location of use of the term, it seems clear 

thatunder the circumstances posed in your opinion request, 

the State of Texas and not the Mexican National is the 

alien involved. The employer is the foreigner, not the 

employee. The exception in favor of persons who have begun naturalization proceedings is indicative that aliens 

in the United States are the persons to whom the ban is 

directed. Whether the Legislature could enact a valid statute providing that the State was prohibited from employing 

foreign nationals in foreign countries is a question not 

reached in this opinion. Serious questions concerning 

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

foreign relations, a field in which the Federal government 

has exclusive jurisdiction, could be raised by such an enactment. cf. peon v. Miller, 234 S.W. 573 (Tex.Civ.App. 

1921, no writ); Purdy t Fitzpatrick v. State, 71 Cal.Zd 

566, 456 P.2d 645 (Cal.Supp. 1969). 

Even more compelling, Section 2 of Article III of 

Senate Bill No. 11, an unreasonable and invidious discrimination on the basis of alienage, violates the Fourteenth 

Amendment of the Federal Constitution. See please, Antieau 

Modern Cons~titutional Law, 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 natently unconstitutional, relying on such holdings as,‘Graham 

v. Richardson, U.S. 29 L.Ed.2d 534, s.ct. 

(1971) h-g discs:tion in welfare payments 

may not be b&ed on alienage; Takahashi v. Fish and Game 

Commission, 334 U.S. 410 (1948) holding that a commercial 

fishina .e license ~~~~ mav not be withheld because of alienaae: 

and, Truax v. Raich, 239 U.S. 33 (19151, holding that-aState may not validly enact a law which requires that aliens 

be discriminated against by employers within the state. 

While there is some aged authority that a state may discriminate on the basis of alienage in employing people on 

public works projects and in areas where there might exist 

reasonable grounds for the discrimination, the cited cases 

make it clear that any such discrimination is highly suspect and must be shown to be 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. See please, 

Purdy & Fitzpatrick v. State, supra, holding that a state 

law with a blanket prohibition against aliens in state employment interferes-with the comprehensive federal legislative scheme enacted for aliens, in addition to amounting 

to a violation of the Fourteenth Amendment to the Federal 

Constitution. 

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

We do not believe there is any valid 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 is nevertheless valid as applied 

to foreign nationals in their own country, and we therefore render our opinion that the quoted provision is, on 

its face, unconstitutional in toto. We express no opinion 

at this time on whether a bill could be drawn imposing diacriminations outside the jurisdiction of the United States 

which cannot be imposed within the United States. In our 

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 a Mexican National to work in Mexico 

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 

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