November 14, 1989 

Honorable Bob McFarland 

Chairman 

Criminal Justice Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-1116 

Re: Validity under article I, 

section 8, of the Texas Constitution of article 5196, V.T.C.S., 

which requires a corporation to 

give a discharged employee a 

statement of reasons for the 

termination (RQ-1747) 

Dear Senator McFarland: 

You request an opinion on the constitutionality of 

section 3 of article 5196, V.T.C.S. This provision reads in 

part: 

Either or any of the following acts shall 

constitute discrimination against persons 

seeking employment: 

. . . . 

3. Where any corporation . . . doing 

business in this state . . . shall have 

discharged an employee and such employee 

demands a statement in writing of the cause 

of his discharge, and such corporation . . . 

fails to furnish a true statement of the 

same to such discharged employee, within ten 

days after such demand, or . . . shall fail, 

within ten days after written demand for the 

same, to furnish to any employee voluntarily 

leaving the service of such corporation or 

receiver, a statement in writing that such 

employee did leave such service voluntarily. 

Statutes of this nature are commonly called "service 

letter statutes." Annot., 24 A.L.R.Qth 1115 (1983). 

Violators of the Texas service letter statute are subject to 

forfeiting one thousand dollars to the state. V.T.C.S. art. 

5199. It is the duty of the attorney general, or the 

p. 5861 
Honorable Bob McFarland - Page 2 (JM-1116) 

district or county attorney under the direction of the 

attorney general, to sue to recover the forfeiture. Id. A 

private cause of action for damages may exist under service 

letter statutes. &8 -iPrudential Ins. C& , 192 S.W. 

387, 393 (MO. 1917). 

The Texas service letter act was adopted in 1907 and 

codified as section 3, article 594 of the 1911 code. See 

Acts 1907, 30th beg., ch. 67, S 1, at 142. Its title read 

as follows: "An Act to define and prohibit discrimination 

against persons seeking employment, and to prescribe 

penalties for the breach of said act." In 1910 the court of 

civil appeals identified the purpose of this provision as 

follows: 

The statute here under discussion was passed 

to meet and remedy an evil that had grown 

up in this state among railway and other 

corporations to control their employees. It 

seems that a custom had grown up among 

railway companies not to employ an applicant 

for a position until he gave the name of his 

last employer, and then write to such company 

for the cause of the applicant's discharge, 

if he was discharged, or his cause for 

leaving such former employer. If the 

information was not satisfactory to the 

proposed employer, he would refuse to employ 

the applicant. They could thus prevent the 

applicant, by failing to give a true reason 

for his discharge or blacklisting him, from 

procuring employment in either instance. 

s * nt Louis Southwestern Rv. v. Hix '0, n 126 S.W. 338, 

(!?:x. Civ. App. 1910), rev'd on other urounds, 

341 

137 S.W. 343 

(Tex. 1911). 

In Rixon, the former employee alleged that the corporation's service letter did not state the true cause of his 

discharge. The court of appeals affirmed a judgment of 

$2,500 for the employee against the corporation, rejecting 

various arguments for holding the statute unconstitutional. 

The supreme court reversed on the ground that the former 

employee had failed to establish that statements in the 

service letter were untrue. S e also won v. P rry 

181 P. 504 (Okla. 1919), aff'd,e259 U.S. 548, 550 (1:22); 

Cheek V. Prudential Ins. Co., m, at 389. 

p. 5862 
Honorable Bob McFarland - Page 3 (JM-1116) 

As you point out 

Court held the 

in your letter, the Texas Supreme 

in Sa'nt 

service letter provision unconstitutional 

Lou is 

(Tex.ll914). InSGriffin 

outhwestern Rv. v. Grif& 171 S.W. 

the court held th;t article 

703 

section 3, of the 1911 &de interfered with a 

594, 

corporation8s 

right to discharge employees at will without cause, and 

accordingly violated the corporation's freedom of contract 

under the United States Constitution. It found that the 

statute violated the equal protection clause of the 

Fourteenth Amendment of the Constitution. The Griffin case 

also held that the service letter requirement violated 

article I, section 8, of the Texas Constitution, which 

guarantees the freedom of the people to speak, write or 

publish their opinions on any subject. The court stated as 

follows: 

The liberty to write or speak includes the 

corresponding right to be silent, and also 

the liberty to decline to write. To say that 

one can be compelled at the instance of 

another party to do what he has the constitutional liberty to do or not is a contradiction that is not susceptible of reconciliation. (Citations omitted.) 

Griffin, Sunra, at 705. The supreme court concluded that 

the provision could not be 

police power, 

sustained as an exercise of the 

stating as follows: 

The subject of legislation in this statute 

and its various provisions, as stated above, 

are purely personal as between the employee 

and the corporation, and do not directly 

affect the public, in health, safety, 

comfort, convenience, or otherwise. 

Id. at 707. 

Within a few years of the Griffi.R decision, the United 

States Supreme Court ruled that the Missouri service letter 

statute was constitutional, finding that it did not 

interfere with the corporation's freedom to contract, 

deprive it of any property or liberty without due process, 

or deny it the privileges and immunities of citizens or the 

equal protection of the laws. mential Ins. Co. v. Cheek, 

259 U.S. 530 119221. "The state with aood reason 

regulate the terms and conditions of employment, 

miaht 

including 

the methods of accepting and dismissing employees, so as to 

P. 5863 
Honorable Bob McFarland - Page 4 (JM-1116) 

prevent the corporations from producing undue detriment to 

the individuals concerned . . . .n L at 545. 

In Attorney General Opinion JR-623 (1987), this office 

concluded that section 3 of article 5196, V.T.C.S., did not 

violate the due process clause or the equal, protection 

clause of the Fourteenth Amendment to the United States 

Constitution. Thus, developments in federal constitutional 

law since Griffin have shown its reasoning and conclusion on 

the federal issues to be incorrect. 

The Griffin court?8 holding that the service letter 

statute violated article I, section 8, of the Texas 

Constitution has never been challenged in our court system. 

Attorney General Opinion JM-623 (1987), at 5. In addressing 

this aspect of Griffin, Attorney General Opinion 313-623 

stated as follows: 

Even though we may disagree with this 

interpretation, we are not at liberty to 

modify or overrule the Texas Supreme Court's 

holding in Griffb. This is especially true 

since our legislature and courts have not 

done so. 

Id. at 6.1 

1. In 1929, the legislature reenacted article 594 as 

article 5196, V.T.C.S. Acts 1929, 41st beg., ch. 245, at 

509. The emergency clause stated that "the codifiers of the 

Revised Civil Statutes of Texas of 1925, omitted from the 

definition of discrimination many of the material provisions 

of the former law on that subject as set out in Article 594 

of the Revised Civil Statutes of 1911 . . . .M A prior 

opinion of this office stated, without mentioning any 

federal cases, that the codifiers of the 1925 statutes had 

obviously omitted article 594 because it had been declared 

unconstitutional in Griffin. Attorney General Opinion 

O-3562 (1941) (overruled by Attorney General Opinion JM-623 

(1987)). However, the legislature's reenactment of the 

provision omitted from the 1925 code could also mean that 

the legislature was aware of the Prudential case and thought 

that it had overruled the reasoning of Griffin. 

p. 5864 
Honorable Bob McFarland - Page 5 (~~-1116) 

It is well established that opinions of the attorney 

general do not have the force of law. See. e.cz 

L 

Travis 

fountv v. Matthews 235 S.W.2d 691 (Tex. Civ. App. 

ref'd A.r.e.); 

Austin 

1951, writ Gavnor mst . 0. v. oard of 

Truste . E r Countv Indev. School Dist, 

(Tex. Esv. zii. - El Paso 1950, writ ref'di. 

233 S.W.Zd 472 

As stated in 

Attorney General Opinion JM-623, we cannot overrule a 

judicial decision. We can, however, review developments in 

the law since Griffin was decided, and attempt to predict 

whether the Texas courts, if faced with this issue in the 

future, would find that the service letter requirement 

violated a corporation#s free speech rights under article I, 

section 8, of the Texas Constitution. 

In 1914, when the Texas Supreme Court ruled in Griffin, 

the First Amendment had not yet been held to be applicable 

to the states through the Fourteenth Amendment. &8 Gitlow 

N Yr 268 U.S. 

x&,at 

652 (1925); Prudenti al Ins. Co. v. 

542-43. Thus, the court could not have 

based its decision about corporate speech rights on the 

First Amendment of the United States Constitution. Instead, 

it followed two state cases that found service letter 

statutes unconstitutional 

provisions of their 

under the freedom of expression 

respective constitutions. See Wallace 

v. Georaia. C. 8 N. Rv., 22 S.E. 579 (Ga. 1894); Atchison. 

. & S. F. Rv. v. Brow& 102 P. 459 (Kan. 1909). In 

Prudential Ins. Co. v. Cheek, the United States Supreme 

Court commented as follows on this aspect of Griffin and the 

Kansas and Georgia cases it relied on: 

The cases cited from Georgia, from Kansas, 

and from Texas place material dependence upon 

provisions of the several state Constitutions 

guaranteeing freedom of speech, from which is 

deduced as by contrast a right of privacy 

called the 'liberty of silence'; and it seems 

to be thought that the relations between a 

corporation and its employees and former 

employees are a matter of wholly private 

concern. But, as we have stated, neither the 

Fourteenth Amendment nor any other provision 

of the Constitution of the United States 

imposes upon the states any restrictions 

about 'freedom of speech' or the 'liberty of 

silence' . . . . 

p. 5865 
Honorable Bob McFarland - Page 6 (JM-1116) 

prudentia, w, at 542-43.2 

In a 1983 decision, the Supreme Court of Missouri 

concluded that the state service letter statute did not 

violate corporate rights of free speech under the First 

Amendment. Ha ch v. K. F. C. Nat , 1 Man 

S.W.Zd 28 (Mo.n1981) (en bane). 

aaement Corn. , 615 

The court stated: 

The statute's mandate affects corporate 

rights of free speech no more than the 

plethora of state and federal statutes and 

regulations that require corporations to 

keep the governments to which they owe 

their existence appraised [sic] of their 

activities. Few are the cases raising first 

amendment challenges to tax, corporate or 

securities laws requiring corporations to 

speak truthfully. The compulsion to speak 

truthfully to a former employee would appear 

to be a small price to pay for the benefits 

gained by corporations, and their owners, for 

the enjoyment of their statutory franchises. 

Id. at 36. 

The Eighth Circuit of the United States Court of 

Appeals also found the Missouri statute constitutional, 

reversing a federal district court decision that found it to 

violate the free speech provision of the First Amendment. 

Rimmer v. Colt Indus. Overatina Core,, 656 F.2d 323 (8th 

In Chicaao. R. I. 8 P. Rv. v. Perry, 259 U.S. 

555 &22), 

548, 

the United States Supreme Court stated that 

Prud ntial had overruled the contention that the service 

let& statute denied the right of free speech "upon 

the ground that the right did not exist under th; state 

Constitution in the absolute form in which it was asserted." 

It also stated that the l'decisions by the Supreme Courts of 

Georgia, Kansas, and Texas . . . were disapproved." & 

This commentary on state court interpretations of state 

constitutional provisions is dicta, since the United States 

Supreme Court looks to the decisions of a state's courts to 

determine the meaning of its laws. &S Clav v. Sun Ins. 

Office, 363 U.S. 207 (1960). This dicta is nonetheless of 

interest because it shows how the United States Supreme 

Court thought about the issue before us. 

P. 5866 
Honorable Bob McFarland - Page 7 (JM-1116) 

Cir. 1981), yev’q, 495 F. SUPP. 1217 (W.D. MO. 1980). The 

court of appeals-noted that in-First Nat -' , 1 Bank v. Bellotti, 

435 U.S. 765 (1978). the Suvreme Court held that sveech 

otherwise protected-.by the First Amendment does not -lose 

that protection simply because its source is a corporation. 

The eighth circuit concluded, however, that the First Nat'1 

&& decision did not shield corporations from state 

statutes that require them to make truthful statements or 

take actions that effectuate legitimate legislative ,goals. 

Rimmer, suvrg, at 328. "There are numerous statutes that 

similarly, and nevertheless constitutionally, restrict the 

'free speech' rights of corporate employers." & (citing 

National Labor Relations Act, 29 U.S.C. 5 158(c) (1976); 

Employee Retirement Income Security,Act, 29 U.S.C. 8 1132(c) 

(1976); Missouri Workers' Compensation Act, Mo.Ann.Stat. 

§ 287.380 (Vernon Supp. 1981)). The statute was adopted to 

protect certain economic and social interests and was 

properly characterized as economic or social legislation 

enacted for the general public welfare. L at 328-29. It 

did not affect any "fundamentaltl First Amendment rights. 

Id. at 329 (analyzing service letter statute in terms of 

equal protection clause and First Amendment of the United 

States Constitution), 

Texas cases decided more recently than Griffin rely on 

a broader conception of the police power than did that case. 

The Supreme Court of Texas has stated that "the very 

foundation of the police power is the control of private 

interests for the public welfare . . . .I1 T wn of A cam 

v. Villalobof, 223 S.W.2d 945, 950 (Tex. 19z9) (guotsng 16 

C.J.S. Constitutional L&f 5 199, at 581). The court has 

recognized the validity of legislation that protects 

employee rights in disputes with the employer. 

mnstructi n & Gen. Labor Union v. 

LTcee 

958 ITex. y950) 

Stevhen soi, 225 S.W.Zd 

(vicketina) . The volice vower authorizes 

the adoption of iegislation designed to pkevent deceitful 

communications in a commercial setting. "A state statute 

designed to prevent the deception of consumers of particular 

goods is recognized as a valid exercise of police power." 

Malestic Indu . v. Saint Clair 537 S.W.2d 297, 302 (Tex. 

Civ. App. - AEstin 1976, writ r;f#d n.r.e.); see also w 

y. State, 665 S.W.2d 476 (Tex. Grim. App. 1984) (the First 

Amendment does not protect intentionally false or misleading 

statements made in a commercial context). 

Exercises of the police power that involve restraints 

on freedom of speech are not for that reason necessarily 

invalid. S.!?S2Allenv. 604 S.W.2d 191 (Tex. Grim. 

App. 1980) (discussing First Amendment of United States 

p. 5867 
Honorable Bob McFarland - Page 8 (JM-1116) 

Constitution). In upholding a provision of the Alcoholic 

Beverage Code that prohibited solicitation of drinks by a 

beer retailer's employee, the court of criminal appeals 

quoted the United States Supreme Court as follows: 

It has never been deemed an abridgement of 

freedom of speech or press to make a course 

of conduct illegal merely because the conduct 

was in part initiated, evidenced, or carried 

out by means of language, either spoken, 

written, or printed. . . . Numerous examples 

could be cited of communications that are 

regulated without offending the First Amendment, such as the exchange of information 

about securities, . . . corporate proxy 

statements, . . . the exchange of price and 

production information about competitors, 

. . . and employers' threats of retaliation 

for the labor activities of employees. 

&& at 192 (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 

447, 456 (1978)). 

The court of criminal appeals quoted the United States 

Supreme Court in answering an argument based on the First 

Amendment of the United States Constitution, not article I, 

section 8, of the Texas Constitution. However, decisions of 

Texas courts that deal with the Texas constitutional 

provision also recognize that permissible regulations of 

conduct may sometimes include regulation of speech. Our 

courts have upheld statutes that require persons to 

communicate information or that limit some kinds of 

communications, finding them consistent with article I, 

section 8, of the Texas Constitution. 

In finding that an injunction to prevent untrained 

layman from advertising and selling blank will forms did not 

violate article I, section 8, of the Texas Constitution, the 

court pointed out that constitutional rights of speech and 

publication are not absolute. palmer v. Unauthorized 

practice Comm. of St t Bar, 438 S.W.2d 374 (Tex. Civ. 

- Houston [14th His:.; 

APP. 

1969, no writ). In a given case 

where the public interest is involved, courts may strike a 

balance between fundamental constitutional freedoms and the 

state's interest in the welfare of its citizens. & 

The court of criminal appeals has held that a statute 

proscribing harassing and threatening telephone calls did 

not violate article I, section 8, of the Texas Constitution 

P. 5868 
Honorable Bob McFarland - Page 9 (JM-1116) 

or the First Amendment of the United States Constitution. 

Schuster v. State 450 S.W.Zd 616 (Tex. 

(applying Penal &de article 476 (1925)). 

Crim. App. 1970) 

In another case, an injunction prohibiting a 40 percent 

shareholder of a corporation from writing letters to 

corporate clients asking for assistance in a liquidation 

suit was upheld as not violative of article I, section 8, of 

the Texas Constitution. C 

&I&, 678 S.W.2d 580 (Tex. App. 

writ dism'd). 

- Houst& [14th Dist;] 1984 

The injunction was granted to prevent inter: 

ference to the contractual relationships of the corporation 

and interference from private communication. L 

Finally, a recent decision of the court of criminal 

appeals indicates that the free speech clause of the Texas 

Constitution does not create an absolute 

silent. 

privilege to be 

y-F---' 687 S.W.Zd 736 (Tex. Grim. APP. 

1984), cer . denied, 474 U.S. 944 (1985). In a prosecution 

for obstructing a public passageway where the key issue was 

whether the defendant had chained himself to a doorway 

during the protest, the defendant sought to subpoena a 

newspaper photographer who had photographed the incident. 

The photographer refused to make his photographs available 

and was held in contempt. The court held that neither the 

First Amendment of ~the United States Constitution nor 

article I, section 8, of the Texas Constitution created a 

privilege that would excuse the photographer from testifying 

and producing photographs. Id. at 737. 

The Texds legislature has enacted numerous statutes 

that require corporations and others to disclose information 

to governmental agencies, to employees, or to shareholders. 

See. e.a., V.T.C.S. arts. 5221b-14(b) (employers prohibited 

from making false statements or failing to disclose material 

fact to prevent payment of unemployme,nt benefits), 5221k, 

5 8.01(a) (record-keeping and reporting requirement applicable to persons under investigation by Texas Human Rights 

Commission): Tex. Bus. Corp. Act arts. 

shareholders to examine corporate 

2.44 (right of 

books and records), 9.01 

(corporation, officers, and director shall answer interrogatories propounded by secretary of state to enable him to 

determine whether corporation is in compliance with Business 

Corporation Act): Agric. Code ch. 125 (duty of certain 

employers of agricultural laborers to make information about 

their use of toxic chemicals available to employees and 

others); Health & Safety Code ch. 502 (employers must make 

available to employees information about certain hazardous 

chemicals stored or used in the workplace). Thus, a statute 

p. 5869 
Honorable Bob McFarland - Page 10 (JM-1116) 

requiring a corporation to disclose information is no longer 

the novelty it appeared to be in 1914, when Griffin was 

decided. 

Based on our review of decisions of the Texas courts 

subsequent to Griffin and the cases on service letters from 

other states, we believe that the Supreme Court of Texas, if 

it were to reconsider section 3 of article 5196, V.T.C.S., 

would find that it did not violate article I, section 8, of 

the Texas Constitution. Until the supreme court overturns 

its decision in Griffin however, section 3 of article 5196, 

V.T.C.S., will be unco&itutional. Following a judicial 

decision that a statute is unconstitutional, the statute 

remains on the books unless expressly repealed by the 

legislature. 39 Op. [U.S.] Att'y Gen., 22 (1937). When a 

court overrules a prior judicial decision that held a 

statute unconstitutional, the statute will be held valid 

from its effective date. Storrie v. Cortes, 38 S.W. 154, 

158 (Tex. 1896); see also State ex rel. Badcett v. Lee, 22 

So.Zd 804 (Fla. 1945); Christovher v. Munaen 

(Fla. 1911). Rut see Chavers v. Harrell 166 i0.~:6!?"*(Fzz? 

1935) (state may not prosecute for cond;ct in violation of 

statute during time it was held unconstitutional). As we 

have already stated, an opinion of the attorney general 

cannot overrule a judicial decision, and therefore cannot 

validate the service letter statute. 

A statute held unconstitutional by the courts does not 

cease to exist for the purpose of amendment by the legislature. Ex varte Hen 1 v 285 S.W.2d 720 (Tex. Crim. App. 

1956). The Griffin ie%on does not prevent the legislature from amending article 5196, V.T.C.S. The legislature 

may update this statute or make the changes, if any, it 

deems necessary due to the passage of time since its reenactment in 1929. Attorney General Opinion JM-623 is 

modified with respect to its discussion of article I, 

section 8, of the Texas Constitution. 

SUMMARY 

. . In Saint Louis Southwestern Rv. v. Griffu 

171 S.W. 703 (Tex. 1914), the Texas Suprem 

Court held that section 3 of article 5196, 

V.T.C.S., was invalid because it was inconsistent with article I, section 8, of the Texas 

Constitution. On the basis of judicial 

decisions of Texas courts and the courts of 

other jurisdictions, we predict that the Texas 

p. 5870 
Honorable Bob McFarland - Page 11 (JM-1116) 

Supreme Court, if it again considered this 

question, would find section 3 of article 

5196, V.T.C.S., consistent with 

section 8, 

article I, 

of the constitution. Until the 

Texas Supreme Court overrules its decision in 

El hoy;I;r, section 3 of article 5196, 

. . . ., be unconstitutional. The 

decision in Griffin does not prevent the 

legislature from amending section 3 of article 

5196, V.T.C.S. Attorney General Opinion 

JM-623 (1987) is modified with respect to its 

discussion of article I, section 8, of the 

Texas Constitution. 

- ~ 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

P. 5871