August 18, 1988 

Rm MATTGX 

A-NW GEXERAL 

Honorable Allen Hightower 

Chairman 

Corrections Committee 

Texas House of Representatives 

P. 0. BOX 2910 

Austin, Texas 78769 

Dear Representative Hightower: 

Opinion Wo. JW-941 

Re: Circumstances under 

which a state employee 

may be discharged 

(RQ-1418) 

you ask whether all state employees are employed "at 

will." An "at will" employee serves at the will of the 

employer and can be fired for any reason. Eastline & R. R. 

. v. Scott, 10 S.W. 99 (Tax. 1888). 

Under Texas law an employee hired for an unspecified 

period of time is generally an "at will" employee. &g 

Sabine Pilot Service. Inc. v. Hauck 687 S.W.Zd 733 (Tex. 

1985). That general rule applies to'state employees as well 

as private employees. Attorney General Opinion M-628 

(1970). &!g &!Q Christian v. ltsmw& I 649 F.Supp. 1475 

(S.D. Tex. 1986). 

Despite that general rule, however, a particular state 

employee may have a property interest in his employment 

protected by the fourteenth amendment to the United States 

Constitution. Whether a pa.rticular state employee has a 

property interest in his job depends on whether there are 

circumstances that give rise to a legitimate claim of 

entitlement. Do rd of Reaents v. Roth 408 U.S. 564 (1972). 

The source of suzh a claim can be a &ate statute, a .local 

ordinance, a rule, or a mutually explicit understanding. 

Perrv v. Sindermann, 408 U.S. 593, 601 (1972). 

Some state employees are subject to statutes that 

create property interests by providing that dismissal must 

be for cause. &G, u, Gov't Code 5 411.007 (Department 

of public Safety employees may be discharged only for "just 

cause") . Other state employees are subject to statutes that 

provide that the employees serve at will. m, .&&, Nat. 

Res. Code 5 31.020: Batterton v. Texas General Land Off&G 

783 F.2d 1220 (5th Cir. 1986), cert. denied, 107 S.Ct. 316: 

p. 4733 
Honorable Allen Hightower - Pago 2 (JM-941) 

. 

Batterton interpreted section 31.020 of the Natural 

Resources Code as establishing "at will" status for employees of the General hand Office. 783 F.2d at 1222-23. 

m also held that informal understandings and agency 

customs could not give rise to a property interest in the 

face of a statute Providing that employees serve at will. 

When there is 

regulations may also 

example, university 

instructor-counselor 

statute to the contrary, agency 

rise to property interests. For 

'regulations #at provided that 

at Texas A&M University could only i?: . . . dismissed for "adequate cause- gave rise to a property 

interest. paae v. D&aune, 837 F.2d 233 (5th Cir. 1988). 

sss aks Wvitt v. Universitv of Texa at El Pa Q 759 F.2d 

1224 (5th Cir. 1985), cert. M, 4;6 U.S. 11:4'(1986). 

In summary, there is a general rule that state 

employees in Texas serve at will. To determine whether that 

general rule applies to a particular employee, however, it 

is necessary to examine relevant statutes and regulations 

and to determine whether express or implied promises have 

been made which limit the right of the state to terminate an 

employee. 

you should also be aware that the "at will" doctrine is 

limited by doctrines and statutes that prohibit termination 

of employment for certain reasons. For example, the state 

may not discharge employees for exercising their right to 

107 s.ct. 2891, 2896 

may be entitled to 

reinstatement if dismissed for exercising right of free 

speech). im usi 42 U.S.C. S 2000e-2 (prohibiting 

discrimination based on race, color, religion, sex, or 

national origin): V.T.C.S. art. 5221k (Human Rights 

Commission Act). Another example of a statute that limits 

the "at will" doctrine is article 5154c, V.T.C.S., which 

provides that no person shall be denied public employment 

based on membership or nonmembership in a labor organization. m m V.T.C.S. 

statute): T as 

art. 625;-16a ("whistle blowePq 

ex 

Mental Health and Mental Retardation, 746 g.W.2: fOz:ex. 

1988): Attorney General Opinion JW-227 (1984). 

SUMMARY 

As a general rule, state employees serve 

at will. A particular state employee mayI 

however, have a property interest in his job. 

Whether a particular state employee has a 

p. 4734 
Honorable Allen Hightower - Page 3 (JF+g41) 

property interest in hie job depends on 

whether his circumstances give rise to a legitimate claim of entitlement. Also, various 

statutes and decisions place limitations on 

the "at will" doctrine by prohibiting 

termination for specified reasons. 

Very truly yo , L-l A b 

-i I M MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

mu MCCReARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk and Karen Gladney 

Assistant Attorneys General 

p. 4735