TRR ATTORNEY GENERAL 

OF TEXAS 

June 24, 1974 

The Honorable Robert S. Calvert 

Comptroller of Public Account8 

State Finance Building 

Austin, Texae 

Opinion No. H- 333 

Re: Validity of provirion in 

Appfoptiation Act rertricting 

employment of aliapr. 

~Dear Mr. Calvert: 

The General Appropriatione Act for fiecal 1974-1975 (Actr 1973, 

63rd Leg., ch. 659, p. 1786) containe, ae one of the rpecial provirionr 

applicable to executive and adminirtrative dapaztnient and agenciee, the 

followipg, Art. III Section 2 (a’t p. 2054): 

No money rhall be paid out of any appropriation 

made in thir Article for personal rervicer for a 

longer period than ninety (90) dayr to any perron 

who ir not a citizen of the United Stater unlerr the 

pereon bar begun naturalization proceedingr. 

You have aoked whether the provirion ir (1) unconrtitutional or (2) 

in conflict with other provirionr of the Act forbidding that perronnel transactions be made on the barie of national .origin (Sec. III, at p. 1967), 

We believe the firet pert of your,quertion ia definitely answered by 

the U. S. Supreme Court decirion in Sugarman v., Dougall, 413 U. S. 634, 

(1973) where the Couzt had for conoideration a rection of the New York 

Civil Service Law providing: 

Except ae herein otherwire provided, no perron 

ehall be eligible for appointment for any position in 

the competitive clarr unlear he ir a citizen of the 

United Staten. 

p. 1539 
The Honorable Robert S. Calvert page 2 (H-333) 

Citing careo Buch aa Graham v. Richardron, 403 U.S. 365 (1971), 

the Court held the New York statute violated the Fourteenth Amendment’8 

equal protection guarantee. And see Attorney General@’ Opinion0 0866 

(1939). R-2247 (1950). M-447 (1969), H-81 (1973), and H-157 (1973). 

The Court, however, wan careful to note that it did not hold that, 

on the basis of an individual determination, an alien might not be refuoed 

or discharged from public employment on the ba8ir of noncitieenrhip. It 

further pointed out that ‘it did not hold that a rtate could not, in an appropriately defined clan8 of positiona, require citizenrhip as a qualification 

for office. . 

In a footnote the Court stated that it intimated no view aa to the 

conrtitutionality of citizenship requirement8 impored in federal government 

employment. And see Eoninooa v. Farah Manufacturing Company, 414 U. S. 

86, (1973), concerning private industry hiring practicea. 

It ir our opinion that the quoted provirion of the Texan ApRropriation 

Act is too broad and ii violative of the equal protection claure of the 

Fourteenth Amendment tom the United Statea Conrtitution. 

In view of the foregoing opinion, it ir unnecerrary for us to anawer 

whether the quoted provirion conflictr with thone prohibiting national origin 

as a basin for personnel tranractionr. But see Erniwa v. Farah Manuf a - 

turing Company. 

SU.MMARY 

A.rtate may require citisenrhip or commencement 

of the naturaliration procena as a requirement for 

employment in specific, appropriately defined poritionl. 

However a broad policy declaration that citizenrhip or 

p. 1540 
’ The Honorable Robert S. Calvert page 3 (H-333) 

filing for naturalization is a requirement for 

all State employment violate6 the equel protection clause of the Fourteenth Amendment and 

ie unconstitutional. 

Very, tiuly yourn, 

* 

c/ Attorney General of Texan 

AP ROVED: 

fi 

2 

LARR?~ F. tORK, Fire/t Aoaistant 

5GLc=-=-u 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1541