Hon. Jesse James State Treasurer Treasury Department Austin, Texas

**Dear** Sir: Opinion No. V- 1291
Re: Legality ofaccepting from State employees voluntary non-subversive oaths which contain all ofthe provisions mentioned in the general appropriation bill rider.
Your request for an opinion reads as follows: “Nith reference toyour opinion concerning the retrospective portion ofthe non-subversive oath rider in the general appropriation bill, it is my understanding that this simply holds that such part ofthe oath cannot be required as a prerequisite to payment of salaries because it was improperly included in a general appropriation bill instead of a general statute.

“Ido not understand that you have ruled that the entire oath or any part thereof would be unconstitutional in a general law. Therefore, Iam wondering if itwould not be proper and legal for me to accept voluntary oa-ths exactly as written inthe rider if Ideem that as necessary information as to my employees. _> “Personally Iwant to sign the oath that Ido not now and have never belonged to any subversive gr’oup and Iwould like to have the same informa

### tionfrom the employees of my department. Iam sure none ofthem have ever belonged to any such groups and that all would voluntarily sign the entire oath. Iunderstand that is the procedure which was followed inyour department prior to the writing ofyour opinion onthe subject.

“Is there anything to prohibit us as department heads from gaining this information from our employees voluntarily and considering such information indeciding what employees we desire to retain in State employment?”Hon. Jesse James, page 2 (V-1291)

You have interpreted our Opinion No. V-1263 (1951)correctly. The retrospective portion ofthe “Non-Subversive Oath” required by the general appropriation bill for the biennium ending August 31, 1953 (Art. VI, Sec. 1,H.B. 426, Acts 52nd Leg., R.S. 1951, ch. 499, p01228) was held to be invalid because itwas a subject of general legislation and therefore could not be constitutionally included within a general appropriation bill. We held that the retrospective portion ofthe oath cannot be required as a prerequisite to payment of State salaries, since it was improperly included in a general appropriation bill. We did not pass upon the question ofwhether the retrospective portion of the oath could have been required in a gqneral statute nor whether such oaths may be obtained by heads ofthe State departments as an administrative matter indetermining the background, loyalty, and character ofemployees and applicants for employment.

Ifyou deem the information contained inthe full oath as desirable and necessary information as toyour employees, we know ofno reason why the complete oath may not be accepted on avoluntary basis. Your office, **our** office, the Governor’s office, and many ofthe other departments ofthe State government obtained execution ofthe complete oath by all employees prior to our Opinion No. V-1263. As an administrative matter, this office will continue to seek the entire information contained in the “Non-Subversive Oath,” as written by ,the Legislature and accept voluntary execution thereof in’order to obtain full knowledge of the background and loyalty offuture applicants for employment. Needless to say, there hisno reason why the heads of departments ofthe State government may not consider such information in deciding whether a person will be a proper and loyal employee.
Our State officers are required to take an oath to uphold and defend the Constitution and laws ofthe United States and ofthe State of Texas. A portion ofthat oath contained in Article XVI, Section 1,ofthe Texas Constitution reads as follows:
”‘I , do solemnly swear (or affirm), hat Iwill faithfully execute the duties ofthe office of of,the State of Texas, and will to the best ofmy ability‘preserve. protect, and defend the Constitution and laws ofthe United States and ofthis State;

. . .“”
Inthe discharge of our duties in accordance with the above oath, State officers are entitled to have employees who willc

.
Hon. Jesse James, page 3 (V-1291)

assist them in preserving, protecting,and defending the Constitution and laws ofthe State and Nation, and they have the right to employ only those persons who will so assist them. inthe discharge oftheir duties and the keeping:of their.oat@. There are available for State empIoyment so many citizens ofunquestioned 1oyaIty that there is no reason to risk the performance of State jobs in the hands of anyone whose loyalty is questionable because of having knowingly and intentionally participated in a subversive organization.

Therefore, it is our opinion that it is entirely proper for you to obtain and consider the information contained inthe complete text ofthe “Non-Subversive Oath” the same as any other information concerning. the character, background, and loyalty ofyour employees and applicants for employment in order to be certain that you will have proper assistance from your employees in discharging the duties ofyour office in accordance with your Constitutional oath of office.
SUMMARY The head ofa State department may accept and consider the complete “Non-Subversive Oath” contained in the general appropriation bill for the biennium ending August 31, 1953 (Art. VI, Sec. 1, H.B. 426, Acts 52nd Leg., R.S 1951.,ch- 499, p. 1228) on avoluntary basis as an administrative procedure indetermining the background, character, and loyalty ofhis employees. Every State officer is entitled to consider information concerning previous membership in subversive organizations in determining whether an employee can properly assist him infaithfully executing the duties ofhis office and indischarging his Constitutional oath “to preserve, protect and defend the Constitution and laws ofthe United States and ofthis State.” Article XVI. Section 1. Texas Constitution.
Yours very truly,

APPROVED: Charles D. Mathews First Assistant Price Daniel Attorney General PRICE DANIEL Attorney General

Executive Assistant