August18,1988

Rm MATTGX **A-NW GEXERAL** 

HonorableAllen Hightower Chairman Corrections Committee Texas House of Representatives P. 0. BOX 2910 Austin, Texas 78769
Dear RepresentativeHightower: OpinionWo. 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 employeehired for an unspecified period of time is generally an "atwill" 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 Christianv. ltsmw& I 649 F.Supp. 1475 (S.D.Tex. 1986). Despite that general rule, however, a particular state employeemay 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 onwhether there are circumstances that give rise to a legitimate claim of entitlement. Do rd of Reaents v. Roth 408U.S. 564 (1972). The source of suzh a claim can be a &ate statute, a .local ordinance, a rule, or amutually explicit understanding. Perrvv. Sindermann, 408U.S. 593, 601 (1972).
Some state employees are subject to statutes that createproperty interestsby providing that dismissal must be for cause. &G, u, Gov't Code 5 411.007 (Department of public Safety employeesmay be discharged only for "just cause")

. Other state employeesare subjectto statutes that provide that the employees serve atwill. m, .&&, Nat. Res. Code 5 31.020:Batterton v. Texas General Land Off&G 783 F.2d 1220 (5thCir. 1986),cert. denied, 107 S.Ct. 316:

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. Batterton interpreted section 31.020 of the Natural Resources Code as establishing "atwill" status for employees of the General hand Office. 783 F.2d at 1222-23. m also held that informalunderstandings and agency customs could not give rise to a property interest in the face

### ofa statute Providing that employees serve at will.

Whenthere is regulationsmay 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 (5thCir. 1988). sss aks Wvitt v. Universitv of Texa at El Pa Q 759 F.2d 1224 (5thCir. 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 isnecessary to examine relevant statutes and regulations and to determine whether express or impliedpromises have been made which limit the right of the state to terminate an employee.
you should alsobe aware that the "atwill" doctrine is limitedby 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 discriminationbased on race, color, religion, sex, or national origin): V.T.C.S. art. 5221k (Human Rights CommissionAct). Another example of a statute that limits the "at will" doctrine is article 5154c,V.T.C.S., which provides that no person shallbe 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 atwill. A particular state employee mayI however, have a property interest inhis job. Whether a particular state employee has a

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property interest in hie job depends on whether his circumstances give rise to a legitimateclaim of entitlement. Also, various statutesand decisions place limitations on the "at will" doctrine by prohibiting termination for specifiedreasons. Very truly yo , 

# L-lb

A -i I M MATTOX Attorney General of Texas
MARY KELLER FirstAssistantAttorney General

mu MCCReARY ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAXLEY SpecialAssistantAttorney General
RICK GILPIN Chairman, Opinion Committee Preparedby SarahWoelk and Karen Gladney AssistantAttorneys General

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