## 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 aprerequisite to obtaining a veterans preference in state employment. You have requested our opinion concerning the constitutionality ofthe durational residency requirement ofarticle 4413(31). V. T. C.S., which grants apreference inpublic employment to veterans:

. . . who are and have been citizens of Texas for not less than five (5) years preceding the date ofapplicat>on inpursuance ofthis Act,

, . . Under the 14th Amendment tothe Federal Constitution one is a citizen ofthe state ofhis domicile, that is, the state where heresides 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. 2870The Honorable Oscar H. Mauzy, page 2

However, several federal district courts have determined durational residency requirements to constitute a denial ofequal protection in the context ofveterans’ preferences and benefits. InCarter v. Gallagher, 337 F. Supp. 626 (D.Minn. 1971), the court held unconstitutional afive year residency requirement contained inMinnesota’s veteran preference act. The court quoted Shapiro v. Thompson, 394 U.S. 618 (1969). inwhich theSupreme Court held unconstitutional a residency requirement for the receipt ofwelfare benefits.

The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But inmoving from State toState or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves topenalize the exercise ofthat right, unless shown tobe necessary topromote a COMPELLING governmental interest, is unconstitutional. ’ 394 U.S. at 634, 89 S.Ct. at 1331. (Emphasis in original). Accord: Cole v. Housing Authority ofCity 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 inthe lower courts concerning which fundamental right was relied inShapiro, the district court stated:

. . . Regardless ofwhat interpretations ofShapiro 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. 91S.Ct. 1848, 29 L.Ed.Zd 534:

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

‘It is enough to say that the classification involved inShapiro was subjected to strict -tiny under the compelling state interest test, not because itwas based onany suspect criterion such as race, nationality, or alienage, but,because it impinged upon the fundamental right ofinterstate 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 noquestion that the fundamental right tointerstate travel is involved inthe instant case. Itis no **more** open toquestion, in the opinion ofthis Court, that a statute which requires aperson who has recently traveled interstate towait five years to obtain employment preference granted immediately to an otherwise equally qualified person who did not so travel imposes apenalty operative solely upon the exercise ofthat 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 ofthe 14thAmendment by discriminating against a class ofpersons exercising the fundamental right ofinterstate travel. InStevens v. Campbell, 332 F.Supp. 102 (D.Mass. 1971) (3-judge court), the court addressed afive year residency requirement inthe Massachusetts veterans preference act and held it unconstitutional as a denial ofequal protection, for the requirement:

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

. . . imposes upon admission to the class ofpersons who are entitled topreference inpublic employment alimitation 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 afive year residency requirement for eligibility for benefits from a Veterans Trust Fund. The court relied onShapiro, Graham, and Gallagher, and held:

. . . Having found that this durational residency requirement penalizes the exercise ofthe 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 tobe unconstitutional because it is not necessary topromote a compelling state interest. 369 FI Supp. at 1337. While the Supreme Court has not addressed the constitutionality ofa residency requirement ina veterans preference or benefit statute, the seven federal district judges who have considered the question have unanimously determined that the decision ofthe Supreme Court inthe 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 tobe unconstitutional under the equal protection clause ofthe 14thAmentment. However, this opinion should not be construed as indicating thatg 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.2873The 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 ina statute enacted previously or in the future, if any provision ofa statute or its application to any per.son or circumstance is held invalid, the invalidity does not affect other provisions or applications ofthe statute which can be given effect withoutthe invalid provision or application, and to this end the provisions ofeach statute are declared tobe severable. Sec. 2.Nothing inthis act affects the power or the

duty ofa court in an appropriate case to ascertain and effectuate the intent ofthe legislature with regard to the severability ofa statute. Since article 4413(31) contains no specific provision regarding severability, and since we believe the principal intent ofthat 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 apreference to all otherwise qualified veterans who are citizens ofTexas. SUMMARY The five year durational residency requirement ofthe Veterans Preference Act, article 4413(31), V. T. C.S., would probably beheld tobe 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. 2874The Honorable Oscar H. Mauzy, page 6

APPROVED:

Opinion Committee

p.2875