JIM MATTOX Attorney General
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# The Attorney General of Texas
May 18, 1983

Honorable Ed Emmett Chairman Committeeon Cultural & HistoricalResources Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769 OpinionNo. JM-33 Re: Constitutionalityof provisions in SenateBill No. 427 relating to race, creed, sex, religion,national origin,and geographical distribution of appointeesto state commission Dear RepresentativeEmmett: You have requestedour opinion regarding the constitutionalityof a portion of Senate Bill No. 427, presently pending in the Sixty-eighth Legislature. The bill provides, with respect to appointmentsto the StateLibraryandArchives Commission:

Appointments to the Commission shall be made with due regard for the race, creed, sex, religion, national origin, and geographical distribution of theappointees. Article I, section 3a, of the Texas Constitutionstates: Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. Article I, section 4, of the Texas Constitutionprovides:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments,provided he acknowledge the existence of a SupremeBeing. In Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 (Tex.Civ.App. - Houston [14thDist.] 1976, writ ref'd n.r.e.), the court, in analyzing article I, section 3a, adopted the "two-tiered" approach to judicial review devised by the United States Supreme Court in addressing classificationsunder the

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federal equal protection clause. Under one approach, the "rational basis" test, the courtmerely decideswhether the classificationis:

reasonable, not arbitrary, and. . . rest[s] upon some ground of difference having a fair substantial relation to the object of the legislation. 538 S.W.2d at 204. This is a permissive standard of judicial review. Id. See also Reedv. Reed, 404 U.S. 71, 76 (1971). Under the "strict scrutiny" test, on the other hand, the classificationwill be upheld only if the governmental body shows that the classification is necessary to promote a compelling interest. See Dunn v. Blumstein,
- 405 U.S. 330. 34 (1972). Strict scrutiny

is triggered either by laws which affect certain 'fundamental rights'. . . or which provide for different treatment of persons on the basis of a 'suspectclassification' (such as race, alienage, and national origin). 538 S.W.2d at 204. Under the plain language of article I, sections 3a and 4, of the Texas Constitution race, creed, sex, religion and national origin are suspect classifications. In our opinion, it is difficult to imagine how a legislativedirective to selectmembers of a public body on the basis of such suspect categories could serve a compelling state interest. We are aware of no judicial decisionwhich has soheld, and we must therefore conclude that that portion of Senate Bill No. 427 which requires consideration to be given to any such suspect classification in making appointments to the commission is, on its face, violative of article I, sections 3a and 4, of the Texas Constitution. On the otherhand, geographicaldistributionhas not been held to be a suspect classification. See Hodel v. Indiana, 452 U.S. 314, 332 (1981);Halt Civic Clubv. Cityof Tuscaloosa,439 U.S. 60, 70 (1978). Also, because no arguable fundamental rights are involved, strict scrutinyhas not been triggered. As a result, the rationalbasis test is applicable. See Schweikerv. Wilson, 450 U.S. 221, 234 (1981);Cf. Graham v. Richardson. 403 U.S. 365 (1971) (classificationsbased= alienage are subject to strict scrutiny). We are unable to say that selection of members of the State Library and Archives Comission on thebasis of geographicaldistributiondoes not "restupon some ground of differencehaving a fair and substantialrelation to the object of the legislation." Mercer,supra, at 204. Thus,we conclude that that portion of Senate Bill No. 427 which requires consideration to be given to geographical distribution in making appointments to the commission isnot, on its face,unconstitutional. -.

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The author of the amendment has asked if the following language would be constitutional:

It is the intent of the legislature that the membership of the commission reflect the historical and cultural diversity of the inhabitantsof this state; therefore,appointments to the commission should be made without discrimination based on race, creed, sax, religion, national origin or geographical distributionof the appointees. This language is distinguishable from the portion of Senate Bill No. 427 which we have discussed. The first sentence of the proposed language states a reasonable legislativepurpose with respect to the composition of the State Library and Archives Commission. Moreover, this languagedoes not in itself direct any official to engage in any action, constitutionalor otherwise. The second sentence requires that appointments to the commission be made on a non-discriminatorybasis, and thusmerely reiterates the requirementsof article I, section 3a, of the Texas Constitution that equalityunder the lawnot be denied or abridgedbecause of sex, race, color, creed, or national origin,and of article I, section4, thatno religious test be required as a qualification to any office in this state. In our opinion theprovision is constitutional. SUMMARY The legislature may not, consistent "ith article I, sections 3a and 4, of the Texas Constitution,require considerationtobe given to matters of sex, race, color, creed, or national origin inmaking appointmentsto the StateLibrary and Archives Commission, but is not prohibited from requiring that consideration be given to geographicaldistribution. &?Jfh

JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorneyGeneral DAVIDR. RICHARDS ExecutiveAssistantAttorney General

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Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Rick Gilpin JimMoellinger Nancy Sutton

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