JIM MATTOX 

Attorney General 

Supreme Court Building 

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Austin. TX. 78711. 2548 

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An Egual Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

May 18, 1983 

Honorable Ed Emmett 

Chairman 

Committee on Cultural & 

Historical Resources 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-33 

Re: Constitutionality of provisions in Senate Bill No. 427 

relating to race, creed, sex, 

religion, national origin, and 

geographical distribution of 

appointees to state commission 

Dear Representative Emmett: 

You have requested our opinion regarding the constitutionality of 

a portion of Senate Bill No. 427, presently pending in the 

Sixty-eighth Legislature. The bill provides, with respect to 

appointments to the State Library and Archives Commission: 

Appointments to the Commission shall be made with 

due regard for the race, creed, sex, religion, 

national origin, and geographical distribution of 

the appointees. 

Article I, section 3a, of the Texas Constitution states: 

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 Constitution provides: 

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 Supreme Being. 

In Mercer v. Board of Trustees, North Forest Independent School 

District, 538 S.W.2d 201 (Tex. Civ. App. - Houston [14th Dist.] 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 classifications under the 

p. 140 
Honorable Ed Emmett - Page 2 (JM-33) 

federal equal protection clause. Under one approach, the "rational 

basis" test, the court merely decides whether the classification is: 

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 Reed v. Reed, 404 U.S. 71, 76 (1971). Under the "strict 

scrutiny" test, on the other hand, the classification will 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 

'suspect classification' (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 legislative directive to select members of a public body on the 

basis of such suspect categories could serve a compelling state 

interest. We are aware of no judicial decision which has so held, 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 other hand, geographical distribution has not been held to 

be a suspect classification. See Hodel v. Indiana, 452 U.S. 314, 332 

(1981); Halt Civic Club v. Cityof Tuscaloosa, 439 U.S. 60, 70 (1978). 

Also, because no arguable fundamental rights are involved, strict 

scrutiny has not been triggered. As a result, the rational basis test 

is applicable. See Schweiker v. Wilson, 450 U.S. 221, 234 (1981); Cf. 

Graham v. Richardson. 403 U.S. 365 (1971) (classifications based= 

alienage are subject to strict scrutiny). We are unable to say that 

selection of members of the State Library and Archives Comission on 

the basis of geographical distribution does not "rest upon some ground 

of difference having a fair and substantial relation 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 is not, on its face, unconstitutional. -. 

p. 141 
. 

Honorable Ed Emmett - Page 3 (J&33) 

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 

inhabitants of this state; therefore, appointments 

to the commission should be made without 

discrimination based on race, creed, sax, 

religion, national origin or geographical 

distribution of 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 legislative purpose with respect to the 

composition of the State Library and Archives Commission. Moreover, 

this language does not in itself direct any official to engage in any 

action, constitutional or otherwise. 

The second sentence requires that appointments to the commission 

be made on a non-discriminatory basis, and thus merely reiterates the 

requirements of article I, section 3a, of the Texas Constitution that 

equality under the law not be denied or abridged because of sex, race, 

color, creed, or national origin, and of article I, section 4, that no 

religious test be required as a qualification to any office in this 

state. In our opinion the provision is constitutional. 

SUMMARY 

The legislature may not, consistent "ith 

article I, sections 3a and 4, of the Texas 

Constitution, require consideration to be given to 

matters of sex, race, color, creed, or national 

origin in making appointments to the State Library 

and Archives Commission, but is not prohibited 

from requiring that consideration be given to 

geographical distribution. 

&?Jfh 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

p. 142 
Honorable Ed Emett - Page 4 (JM-33) 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Jim Moellinger 

Nancy Sutton 

p. 143