TEIE A'ITORNEY 

OF TEXAS 

Aumruu. TEXAS 787U 

JOHN L. arA-- 0-u 

July 30, 1975 

The Honorable Oscar H. Mauzy 

Chairman 

Senate Education Committee 

Senate Chambers 

State Capitol Building 

Austin, Texas 78711 

Dear Senator Mausy: 

Opinion No. H- 654 

Re: Constitutionality of 

article 4413(31), 

V. T. C. S., providing 

a durational requirement as a prerequisite 

to obtaining a veterans 

preference in state 

employment. 

You have requested our opinion concerning the constitutionality of the 

durational residency requirement of article 4413(31). V. T. C. S., which 

grants a preference in public employment to veterans: 

. . . who are and have been citizens of Texas 

for not less than five (5) years preceding the 

date of applicat>on in pursuance of this Act, 

, . . 

Under the 14th Amendment to the Federal Constitution one is a citizen 

of the state of his domicile, that is, the state where he resides and intends 

to remain indefinitely. Paudler v. Paudler, 185 F. Zd 901 (5th Cir. 1950), 

cert. denied 341 U.S. 920 (1951). Thus article 4413(31) would exclude 

from the preference those veterans who have resided in Texas for less than 

five years. 

As a general matter, a state may grant preferences to veterans. Rios 

v. Dillman, 499 F.2d 329 (5th Cir. 1974); Koelfgen v. Jackson, 355 F.Supp. 

243 (D.Minn. 1972)(3-judge court) aff’d. mem. 410 U.S. 976 (1973)~ E. 

Fredrick v. United States, 507 F. 2d 1264 (U.S. Ct. Cl. 1974). 

p. 2870 
The Honorable Oscar H. Mauzy, page 2 

However, several federal district courts have determined durational 

residency requirements to constitute a denial of equal protection in the 

context of veterans’ preferences and benefits. In Carter v. Gallagher, 

337 F. Supp. 626 (D. Minn. 1971), the court held unconstitutional a five 

year residency requirement contained in Minnesota’s veteran preference 

act. The court quoted Shapiro v. Thompson, 394 U. S. 618 (1969). in which 

the Supreme Court held unconstitutional a residency requirement for the 

receipt of welfare benefits. 

The waiting-period provision denies welfare 

benefits to otherwise eligible applicants solely 

because they have recently moved into the 

jurisdiction. But in moving from State to State 

or to the District of Columbia appellees were 

exercising a constitutional right, and any 

classification which serves to penalize the 

exercise of that right, unless shown to be 

necessary to promote a COMPELLING governmental interest, is unconstitutional. ’ 394 U.S. 

at 634, 89 S. Ct. at 1331. (Emphasis in original). 

Accord: Cole v. Housing Authority of City of 

Newport, 435 F. 2d 807. 809 (1st Cir. 1970); 

King v. New Rochelle Municipal Housing 

Authority, 442 F. 2d 646 (2d Cir. 1971). 337 

F.Supp. at 629. 

Noting that there had been some confusion in the lower courts concerning 

which fundamental right was relied in Shapiro, the district court stated: 

. . . Regardless of what interpretations of Shapiro 

formerly obtained, the matter has apparently been 

settled by the Supreme Court speaking through 

Mr. Justice Blackmun in Graham v. Richardson, 

403 U.S. 365. 91 S. Ct. 1848, 29 L. Ed.Zd 534: 

p. 2871 
The Honorable Oscar H. Mauzy, page 3 

‘It is enough to say that the classification involved in Shapiro was subjected to strict -tiny under the 

compelling state interest test, not 

because it was based on any suspect 

criterion such as race, nationality, 

or alienage, but, because it impinged 

upon the fundamental right of interstate movement. . . . ’ 403 U.S. at 

375 (Emphasis supplied by district 

court) , . . 337 F.Supp. at 632. 

Thus, the court in Gallagher concluded that: 

. . . There is no question that the fundamental 

right to interstate travel is involved in the instant 

case. It is no more open to question, in the opinion 

of this Court, that a statute which requires a person 

who has recently traveled interstate to wait five 

years to obtain employment preference granted 

immediately to an otherwise equally qualified 

person who did not so travel imposes a penalty 

operative solely upon the exercise of that right, 

Under such circumstances the defendants must 

demonstrate that there is some compelling State 

interest which justifies the distinction. Oregon v. 

Mitchell, 400 U.S. at 238, 91 S. Ct. 260. 337 

F. Supp. at 632. 

The court found no such compelling state interest and therefore held the 

five year residency requirement unconstitutional as violating the equal 

protection clause of the 14th Amendment by discriminating against a class 

of persons exercising the fundamental right of interstate travel. 

In Stevens v. Campbell, 332 F. Supp. 102 (D. Mass. 1971) (3-judge court), 

the court addressed a five year residency requirement in the Massachusetts 

veterans preference act and held it unconstitutional as a denial of equal protection, for the requirement: 

p, 2872 
The Honorable Oscar H. Mauzy. page 4 

. . . imposes upon admission to the class 

of persons who are entitled to preference 

in public employment a limitation which 

has no relevance to any legitimate governmental purpose. ,332 F. Supp. at 106. 

Thus the court concluded that the residency requirement failed to satisfy 

even the more lenient rational basis test. 

In Barnes v. Board of Trustees, Michigan Veterans Trust Fund, 

369 F. Supp. 1327 (W. D. Mich. 1973) (3-judge court), the court held 

unconstitutional a five year residency requirement for eligibility for 

benefits from a Veterans Trust Fund. The court relied on Shapiro, Graham, 

and Gallagher, and held: 

. . . Having found that this durational residency 

requirement penalizes the exercise of the fundamental right to travel, this court must determine whether the requirement is necessary to 

promote a compelling state interest. 369 F. Supp. 

at 1335. 

. . . this durational residency requirement is held 

to be unconstitutional because it is not necessary 

to promote a compelling state interest. 369 FI 

Supp. at 1337. 

While the Supreme Court has not addressed the constitutionality of a 

residency requirement in a veterans preference or benefit statute, the seven 

federal district judges who have considered the question have unanimously 

determined that the decision of the Supreme Court in the Shapiro case requires 

such a residency provision to be held unconstitutional. On the authority of 

these cases it is our opinion that the durational residency requirement of 

article 4413(31) probably would be held to be unconstitutional under the equal 

protection clause of the 14th Amentment. However, this opinion should not 

be construed as indicating that g residency requirement for veterans 

preference would be unconstitutional. See. August v. Bronstein, 369 F.Supp. 

190 (S. D. N. Y. 1974)(3-judge court). 

p. 2873 
The Honorable Oscar H. Mauzy, page 5 

The courts in Gallagher, Stevens, and Barnes merely deleted the 

invalid residency requirement; the remaining provisions remained 

operative. Article Ila, V. T. C. S., provides: 

Sec. 1. Except to the extent otherwise specifically 

provided in a statute enacted previously or 

in the future, if any provision of a statute 

or its application to any per.son or circumstance is held invalid, the invalidity does 

not affect other provisions or applications 

of the statute which can be given effect without the invalid provision or application, and 

to this end the provisions of each statute 

are declared to be severable. 

Sec. 2. Nothing in this act affects the power or the 

duty of a court in an appropriate case to ascertain and effectuate the intent of the legislature with regard to the severability of a 

statute. 

Since article 4413(31) contains no specific provision regarding severability, 

and since we believe the principal intent of that article is to grant veterans 

preference in governmental employment, in our opinion all provisions of 

article 4413(31) other than the durational residency provision remain operative. 

Accordingly, article 4413(31) gives a preference to all otherwise qualified 

veterans who are citizens of Texas. 

SUMMARY 

The five year durational residency requirement 

of the Veterans Preference Act, article 4413(31), 

V. T. C. S., would probably be held to be unconstitutional. 

The remaining provisions are operative. Thus, veterans 

who otherwise qualify under the Act are entitled to a 

preference if they are citizens of Texas at the time of 

application. 

/ / Attorney General of Texas 

y. 2874 
The Honorable Oscar H. Mauzy, page 6 

APPROVED: 

Opinion Committee 

p. 2875