December 27, 1990

Honorable Jimmie McCullough Opinion No. JR-1274 **County** and DistrictAttorney 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 testingby means of urine samples.
Drug testing of governmental employees and others similarly situatedhas 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 searchesand 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 followingmajor train accidents or other "incidents.". In Natio a e su V b, 109 S.Ct. 1384 (1989),the Supreme Court, in a 5-4 decision, upheld urine testing of employees applying forpromotion to positions involving interdictionof illegaldrugs 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 filedby 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 (6thCir.),vacated, 862 -?

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F.2d 567 (6thCir. 1988),the court of appeals for the sixth circuit invalidated the city of Chattanooga's mandatory urinalysis testing ofpolice officers on a department-wide basis without reasonablecauseor suspicion of individuals. By contrast, the court of appeals for the third circuit upheld random drug testingof 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. TownShiD Of Washinaton Likewise, the court oi appeals for the firstcircuit, in eev
.R ch 110U.S. 104 ;:98;; 873 F.2d 1557 (1stCir.), cert.denied, upheld random drug testing by the Boston Police Departmen;of all officers carrying firearmsor 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 seemstobe 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 themargin which the majority was able tomuster inVan 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 thepractice.

(Tex. 1987), the Texas SupremeCourt affirmed the right of privacy under the Texas Constitution, as deriving, inter aliB, from article I, section 9, which protects the right of an individualto be 'secure

. . . fromall unreasonable seizures or searches," the same prohibition as appears in the FourthAmendmentto the federalConstitution. The court, declaring that the Texas Constitution protects onens personal privacy fromunreasonable intrusion, held that the right of privacycan

yield only when the government can demonstrate that an intrusionis reasonablywarranted for the achievementof a compelling governmental objective that can be achieved by no less intrusive,more reasonablemeans.
Id. at 205.

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In They, the court said that a policy of the Department of Mental Health and Mental Retardation which required employees to instances1wassubmit to polygraph examinations in certain

an unwarranted QOintrusionll and therefore violative of the employee'sright of privacy. The intrusiveness of urine testing is of a somewhat different nature from that of a polygraphexamination, but in our opinion, the former is at leastas 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 collectingthe sample to be tested, which may in some cases involve visual or auralmonitoring of the act of urination, itself implicatesprivacy interests.

& In concluding that urine testing "intrudesupon expectations of privacy that societyhas long recognized," the Court quoted the court of appeals for the fifth circuit in Rational Treasurv EmDlOVeeSUnion v. Von Raab, 816 F.2d 170, 175 (5thCir. 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 traditionallyperformedwithout public observation: indeed, its performance inpublic is generally prohibitedby law as well as social custom.
Skinner, SuDrg, at 1413.

1. Under the writtenpolicy, 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 administrationof the examination itself.

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We believe that the Texas SupremeCourtwould likewise conclude **that** the collection and testing of urine implicates privacy interestsprotected by the Texas Constitution, an.d that as a result, a governmentalbody, in order to require it,must pass the two-pronged test of m: itmust demonstrate that (1)the intrusionis warranted to achieve a compelling governmental objective:and (2)that objective cannotbe achieved by less intrusive,**more** reasonablemeans.

In w, the court foundthat the department's objectives were not sufficiently compelling to **warrant** the intrusion. The department's objectivesm, however, quite specific:

The polygraph testingwas initiatedto assist administrators in investigationsof fourtypes of situations: patient abuse or neglect: conduct endangering thehealth 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 aminimum, a sheriff's department must have specific demonstrablegoals that cannot be achieved by less intrusive,more reasonablemeans before it
can constitutionally requireurine testing. As the test you inquire about does not complywith eitherprong of the TSEU test, neither would it complywith article I, section 9, of the Texas Constitution.
SUMnARy

The Texas constitutional guarantee of privacy would be violatedby random urine testing of deputy sheriffs and jailers for the presence of drugswhere no compelling governmental objective for the testing has been shown.

JIM MAT.TOX - AttorneyGeneral of Texas

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MARY KELLER

First AssistantAttorneyGeneral

I.m MCCREARY ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLEY Special AssistantAttorney General

**RENEA**HICKS Special AssistantAttorney General

RICK GILPIN Chairman, OpinionCommittee
Prepared by Rick Gilpin Assistant AttorneyGeneral

Pa 6818