December 27, 1990 

Honorable Jimmie McCullough Opinion No. JR-1274 

County and District Attorney 

82nd Judicial District Re: Authority of a sheriff to 

Robertson County require his employees to subP. 0. BOX 409 mit to random drug testing 

Franklin, Texas 77056 (RQ-1952) 

Dear Mr. McCullough: 

You have requested our opinion regarding the authority 

of a sheriff's department to require its deputies and 

jailers to submit to random drug testing by means of urine 

samples. 

Drug testing of governmental employees and others 

similarly situated has been the subject of frequent litigation in the federal courts in recent years, and no consensus 

has yet emerged on the permissible limitations which a 

governmental body may place on its employees' Fourth Amendment protection against unreasonable searches and seizures. 

In Skinner v. Railwav Labor Executives' A 'n 109 S.Ct. 

1402 (1989), the Supreme Court, in a 7-2 d&on upheld 

the Federal Railroad Administration regulations {hat reguired blood and urine tests for certain railroad employees 

following major train accidents or other "incidents.". In 

N atio a e su V b, 109 S.Ct. 

1384 (1989), the Supreme Court, in a 5-4 decision, upheld 

urine testing of employees applying for promotion to positions involving interdiction of illegal drugs or requiring 

them to carry firearms. Neither of these Supreme Court 

decisions involved the kind of random urine testing for 

drugs about which you inquire. For purposes of this opinion, we assume that Vandom" testing refers to urinalysis 

that is not occasioned or triggered by any incident or 

event, such as alleged criminal activity, an accident, or a 

complaint filed by a member of the public that casts suspicion on one or a group of deputy sheriffs or jailers. 

The lower federal appellate courts have considered 

random urine testing but are divided in their conclusions. 

In Pennv v. Kennedy, 846 F.2d 1563 (6th Cir.), vacated, 862 -? 

p. 6814 
Honorable Jimmie McCullough - Page 2 (JM-1274) 

F.2d 567 (6th Cir. 1988), the court of appeals for the sixth 

circuit invalidated the city of Chattanooga's mandatory 

urinalysis testing of police officers on a department-wide 

basis without reasonable cause or suspicion of individuals. 

By contrast, the court of appeals for the third circuit 

upheld random drug testing of police officers in the Township of Washington, New Jersey. policeman's Benevoleng 

A n fN 

8t:'F.id 

V.Loll 

FT3 "~:~~ Cir$19:8f) 

v. Town ShiD Of Washinaton 

Likewise, the court oi 

appeals for the first circuit, in eev . R ch 

110 U.S. 104 ;:98;; 

873 F.2d 

1557 (1st Cir.), cert. denied, upheld 

random drug testing by the Boston Police Departmen; of all 

officers carrying firearms or participating in drug interdiction. See also mt 715 F.Supp. 832 

(E.D. Mich. 1989); ; Al ce DeD'k, 706 

F.Supp. 453 (E.D. La. 1988). 

Although there seems to be a trend in the lower federal 

appellate courts to approve random urine testing of police 

officers, the Supreme Court has not yet upheld random 

testing of any kind, and the narrowness of the margin which 

the majority was able to muster in Van does not inspire 

complete confidence that the Court will necessarily follow 

the rulings in Townshio of Washinaton and Guinev. We ne'ed 

not address the issue of random testing under the federal 

Constitution, however, since we believe that the Texas 

Constitution prohibits the practice. 

(Tex. 1987), the Texas Supreme Court affirmed the right of 

privacy under the Texas Constitution, as deriving, inter aliB, from article I, section 9, which protects the 

right of an individual to be 'secure . . . from all unreasonable seizures or searches," the same prohibition as 

appears in the Fourth Amendment to the federal Constitution. 

The court, declaring that the Texas Constitution protects 

onens personal privacy from unreasonable intrusion, held 

that the right of privacy can 

yield only when the government can demonstrate 

that an intrusion is reasonably warranted for 

the achievement of a compelling governmental 

objective that can be achieved by no less 

intrusive, more reasonable means. 

Id. at 205. 

p. 6815 
Honorable Jimmie McCullough - Page 3 (JM-1274) 

In They, the court said that a policy of the Department 

of Mental Health and Mental Retardation which required 

employees to 

instances1 was 

submit to polygraph examinations in certain 

an unwarranted QOintrusionll and therefore 

violative of the employee's right of privacy. The intrusiveness of urine testing is of a somewhat different nature 

from that of a polygraph examination, but in our opinion, 

the former is at least as intrusive as the latter. The 

chemical analysis of urine "can reveal a host of private 

medical facts about an employee, including whether she is 

eDileDtic, Dreqnant. or diabetic." Skinney, SuDra, at 1413. 

l%rthermore; the very 

process of collecting the sample to be tested, 

which may in some cases involve visual or 

aural monitoring of the act of urination, 

itself implicates privacy interests. 

& In concluding that urine testing "intrudes upon expectations of privacy that society has long recognized," the 

Court quoted the court of appeals for the fifth circuit in 

Rational Treasurv EmDlOVeeS Union v. Von Raab, 816 F.2d 170, 

175 (5th Cir. 1987): 

There are few activities in our society more 

personal or private than the passing of urine. 

Most people describe it by euphemisms if they 

talk about it at all. It is a function 

traditionally performed without public observation: indeed, its performance in public is 

generally prohibited by law as well as social 

custom. 

Skinner, SuDrg, at 1413. 

1. Under the written policy, an employee could be 

dismissed for refusing to submit to a polygraph examination 

only if there existed reasonable cause to believe that (1) 

an incident of patient abuse or illegal on-campus activity 

had occurred; (2) an employee had violated departmental 

rules in connection therewith; and (3) all other reasonable 

investigatory alternatives had been exhausted including, 

at a minimum, an interview with the employee. In addition, there were restrictions on the administration of the 

examination itself. 

p. 6816 
Honorable Jimmie McCullough - Page 4 (JM-1274) 

We believe that the Texas Supreme Court would likewise 

conclude that the collection and testing of urine implicates 

privacy interests protected by the Texas Constitution, an.d 

that as a result, a governmental body, in order to require 

it, must pass the two-pronged test of m: it must demonstrate that (1) the intrusion is warranted to achieve a 

compelling governmental objective: and (2) that objective 

cannot be achieved by less intrusive, more reasonable means. 

In w, the court found that the department's objectives were not sufficiently compelling to warrant the 

intrusion. The department's objectives m, however, quite 

specific: 

The polygraph testing was initiated to assist 

administrators in investigations of four types 

of situations: patient abuse or neglect: 

conduct endangering the health or safety of 

patients or other employees: theft or other 

criminal activity; use of drugs or alcohol. 

TSEU, suorg, at 206. 

In the situation you pose, no objectives whatsoever 

have been stated. Since the polygraph examination in 

m was struck down even when the goals of testing were 

specific, we believe that, at a minimum, a sheriff's department must have specific demonstrable goals that cannot be 

achieved by less intrusive, more reasonable means before it 

can constitutionally require urine testing. As the test you 

inquire about does not comply with either prong of the TSEU 

test, neither would it comply with article I, section 9, of 

the Texas Constitution. 

SUMnARy 

The Texas constitutional guarantee of 

privacy would be violated by random urine 

testing of deputy sheriffs and jailers for 

the presence of drugs where no compelling 

governmental objective for the testing has 

been shown. 

JIM MAT.TOX - 

Attorney General of Texas 

p. 6817 
. 

’ . 

Honorable Jimmie McCullough - Page 5 (JM-1274) 

. 

MARY KELLER 

First Assistant Attorney General 

I.m MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

Pa 6818