DAN MORALES 

ATTORNEY GESERAL 

QBffice of ttp Bttornep &neral 

Mate of Qfexas 

May 13,1992 

Mr. Ray Farabee 

Vice Chancellor 

The University of Texas 

Office of General Counsel 

201 West 7th Street 

Austin, Texas 78701 

Opinion No. DM-121 

Re: Whether proposed drug testing policies 

submitted by the City of League City and the 

University of Texas are constitutional 

(RQ-115, RQ-260) 

Honorable James F. Hury, Jr. 

ChtiaIl 

Ways and Means Committee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 787652910 

Dear Gentlemen: 

You have each submitted proposed drug testing policies. The policies 

submitted by Mr. Farabee, on behalf of the Board of Regents of the University of 

Texas System, would be applicable to certain applicants and employees of the 

University of Texas Health Center at Tyler and to faculty and resident physicians at 

the University of Texas Medical Branch at Galveston; the one submitted by 

Representative Hury would be applicable to employees of the City of League City. 

You ask about the constitutionality of the respective policies. 

We note at the outset that attorney general opinions are addressed to specific 

legal questions. It is outside the scope of. the opinion process to review the lengthy 

and detailed policies you have submitted. Also, with the exception of a portion of 

the League City policy, discussed below, that we believe to be constitutionally 

invalid as a matter of law, determinations in regard to the legality of the particular 

drug testing policies or their application will involve questions of fact. See Hum011 

v. Thornburgh, 878 F.2d 484, 490 n.9 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 865 

(1990) (noting that the “Supreme Court has quite clearly eschewed an approach to 

drug testing based on bright lines and clean analytic principles, and has instead 

mandated case-by-case balancing of individual and societal interests”). We cannot 

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Honorable James F. Hury, Jr. 

(DM-121) 

resolve questions of fact in the opinion process. We will, therefore, generally limit 

this opinion to providing guidance by reference to applicable law. We will also 

address the questions you both raise about the validity of a prior opinion of this 

office on the legality of drug testing, Attorney General Opinion JM-1274 (1990). 

The policies submitted provide for testing by urinalysis. Urinalysis 

compelled by the government is a search for purposes of the Fourth Amendment of 

the United States Constitution. National Treawy Employees Union v. Von Raab. 

489 U.S. 656, 665 (1989); Skinner v. Railway Labor EKcurives Ash. 489 U.S. 602, 

617 (1989). A warrant or probable cause, however. is not necessarily required for 

employee drug testing. Skinner, 489 U.S. at 619. Rather, “where a Fourth 

Amendment intrusion serves special governmental needs, beyond the normal need 

for law enforcement, it is necessary to balance the individual’s privacy expectations 

against the Government’s interests to determine whether it is impractical to require 

a warrant or some level of individualized suspicion in the particular context.” Von 

Raab, 489 U.S. at 665-66. 

Before a governmental body adopts an employee drug testing policy, it must 

fist consider whether testing “serves special governmental needs, beyond the 

normal need for law enforcement.” Id. at 665.1 Assuming that it does, the 

governmental body must then determine whether its interests in testing its 

employees are sufficient to outweigh the privacy expectations of its employees. In 

making this determination, it must consider the nature ~of the employees’ duties, 

taking into account that public employment alone is not a sufficient basis for 

mandatory drug testing. Hannon, 878 F.2d at 490. It must also consider the extent 

to which the testing will intrude upon the privacy interests of its employees. Von 

Raub, 489 U.S. at 66566.2 The governing board of a governmental body must make 

t&e oko Bhwtein v. Shinw, 908 F.2d 4551,455 (9th Cir. 1990), EUL denied, 111 S. Ca. 954 

(1991) (m wbcthcr drug testing policy scrvcd special needs before balancing govclnment’s 

iatercats agaid the employees’ privacy inter&s); American Fedk of Gov’l Emplops Y. Sk&w, 885 

FZ!d 884, 889 (DC. Cir. l989). wt. denied, 110 S. Ct. MO (1990) (same); Nufionul F&n of Fed 

Emp/m Y. Qlmry, 884 F2d 6@3,608 (D.C. Cir. 19S9), cni. denied, 110 S. Ct. 864 (1990) (same). 

%o makiag this determination, a gownmental entity might want to consider, for example, the 

exteot to which it will or will not be able to titbhold test results and related information born general 

public disc&we. See Open Records Decision No. 594 (1991) (city employee drug testing ordinance 

provisioos cannot operate to exempt drug testing information from required public disclosure under 

the Texas Open Records Ad, V.T.C.S. article 6252-17a). 

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Honorable James F. Hury, Jr. 

(DM-121) 

those determinations in the first instance, subject to court review in the event its 

policy is challenged. 

As the United States Court of Appeals for the District of Columbia has 

noted, however, public employment alone is “not a sufficient predicate for 

mandatory urinalysis.” Harmon, 878 F.2d at 490; see aLso National Fed’n of Fed 

Employees v. Chewy, 884 F.2d 603.613 (D.C. Cir. 1989). cert. denied, 110 S. Ct. 864 

(1990). A “clear, direct nexus [must exist] between the nature of the employee’s 

duty and the nature of the feared violation.” Harmon, 878 F.2d at 490 (citing Von 

J&rob). In Von Raab, for example, a case in which the Supreme Court upheld drug 

testing of customs service employees seeking promotions to positions directly 

involving the interdiction of illegal drugs or requiring the incumbent to carry a 

firearm, there was a clear nexus between the employees’ prospective duties and the 

risk that “they might endanger the integrity of our Nation’s borders or the life of the 

citizenry.” Von Ruub, 489 U.S. at 679.3 

We turn now to the particular policies at issue here. Representative Hury 

submits the proposed drug testing policy of the City of League~City (hereinafter the 

“city policy”) and states that the city “is concerned about the effects of Attorney 

General Opinion JM-1274 on the implementation of such a policy.” Attorney 

General Opinion JM-1274. which we will discuss more fully below, concluded that a 

sheriff department’s “random drug testing” of deputy sheriffs and jailers by urinalysis 

would violate constitutional privacy protections where no compelling governmental 

objectives, or “specific demonstrable goals,” were shown that could not “be achieved 

by less intrusive, more reasonable means.” Attorney General Opinion JM-1274 at 4. 

We understand Representative Hury’s request, therefore, to put at issue the 

“random” testing provisions of the city policy. 

3See a&o Nodonal Tw.wy Employes Union Y. Yauter, 918 F.2d 96& 977 (D.C. Cir. 1990) 

(government’s interest in ensuring safety just&d random urinalysis drag testing of agency motor 

vehicle operators); B&stein, Ws F.2d at 456 (upholdii random drug testing of airline employees 

because government had a sufficient intereat in preventing drug use by persons holding safety-sensitive 

positions in the aviation industry); Tuylor Y. O’Gmdy, 888 F2d 1189.1198 (7th CL. 1989) (wrre~ions 

department’s inter&s in avoiding dangers of drug impaired work force and drag smuggling jutified 

wmpehg annual urinalysis of employeea who came into rqular contact witk prisoners); Kap v. 

Clclibome County Hosp., 763 F. Supp. l362,l369 (S.D. Miss. 1991) (hospital’s interest in ensuring safety 

of patients justitied mandatory drug testing of employee involved in hands-on patient care). See 

geneml& Haas, The Supreme Cow? Enters the Var Wars”: Dmg Ted& Public Employees, and the 

Fourth Amendment, 94 DICK. L. REV. 305 (1990). 

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Honorable James F. Hury. Jr. 

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Article IV, section 4.01 of the city policy provides that “[t]he City’s Director 

of Administrative Services may require that a test for the presence of drugs be 

conducted.. . on a random.. . basis.” Article X, section 10.01 makes a similar 

provision with respect to city employees generally, and article X, section 10.02 

provides that “[elmployees in safety sensitive jobs may be subject to random. . . drug 

testing on a routine basis, as determined by the Director of Administrative Services.” 

We think a court would find that the city policy’s provisions for random 

testing of all city employees, as a matter of law. run afoul of Fourth Amendment 

protections against unreasonable searches. As discussed above, the federal courts 

have indicated that public employment alone is not a sufficient predicate for testing 

not based on individualized suspicion, but that a suffkient nexus must exist between 

the particular employee’s duties and the feared consequences of the employee’s use 

of drugs. See Von Raab, 489 U.S. 656; Harmon, 878 F.2d 484, Notional Federation of 

Federal Employees, 884 F.2d 603. Determination, on the other hand, of the 

constitutionality of the city policy’s provisions for random testing of employees in 

“safety sensitive” positions would, we thii require a full fact-finding with regard to 

factors relevant to a constitutional balancing test, such as the nature of those “safety 

sensitive” positions and the city’s interest in testing those employed in such positions, 

and those employees’ “privacy expectations.” 

The proposed drug testing policy of the University of Texas Health Science 

Center at Tyler (hereinafter the “center policy”) provides for the testing of those 

applying for or employed in certain “safety sensitive” and “health care positions” -- to 

wit, those whose duties involve 1) “the diagnosis, treatment, or care of patients”; 

2) “the operation of equipment or the performance of a test or analysis that is 

utilized in the diagnosis and treatment of patients”; 3) “access to controlled 

substances”; 4) “access to cash”, or 5) “the lawful use or possession of a firearm.” 

Under the center policy, testing may be required of employees in the above 

categories after they have been involved in certain on-the-job accidents, observed 

possessing or using alcohol or illegal drugs on the job, or observed by a supervisor 

trained in such matters as exhibiting on the job the appearance or behavior of one 

under the influence of illegal drugs or alcohol. Also, the above categories of 

employees, except those having “access to cash,” may be tested on a random basis to 

be “determined by the University.” All applicants tentatively accepted for 

employment in the above categories are to be tested as a condition of employment. 

Center policy 89 I - III. 

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Honorable James F. Hury, Jr. 

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The University of Texas System also asks about the legality of preemployment drug testing for faculty and resident physicians whom the University of 

Texas Medical Branch at Galveston (hereinafter “UTMBG”) requires to perform 

medical work at the Shriners Burns Institute of Galveston (hereinafter “SBI”). SBI, 

a private entity providing care to severely burned children, has adopted a policy 

providing for drug testing new employees including the UTMBG faculty and 

resident physicians working at SBI. Under these circumstances, it is clear that 

UTMBG’s requiring faculty and resident physicians to work at SBI would constitute 

government-compelled testing and would therefore be subject to constitutional 

protections. Thus, in answer to your question regarding the SBI policy, it would not 

be legally permissible for UTMBG to require assignments and rotations in SBI 

unless SBI’s policy passes constitutional muster. 

We note first that on the facts presented in Von Raab, the court upheld 

testing of certain customs service employees applying for .transfer to positions whose 

duties involved the carrying of firearms or access to controlled substances. National 

Federation of Federal Emplqees upheld random testing of Army civilian police and 

guards carrying firearms. Both these courts reached their decisions, however, only 

after considering a variety of other fact-bound matters such as the employees’ 

expectations of privacy or whether the employees’ duties were carried out in 

traditional office environments where they could be monitored in a more routine 

manner. 

More pertinent to the testing of medical personnel, Kemp v. Cluibome 

County Hosp., 763 F. Supp. 1362 (S.D. Miss. 1991), upheld mandatory testing of a 

scrub technician whose duties involved “hands-on” patient care, including being 

present and assisting during surgery. The court ventured to say that “any hospital 

employee who is involved in direct, hands-on patient care occupies a safety sensitive 

position” such that the government has a strong interest in guarding against such 

employees being drug-impaired. 763 F. Supp. at 1368. The Kemp court again, 

however, considered various other factual circumstances before concluding that the 

testing in that case was constitutionally permissible, for example, that the employee 

in question had a diminished expectation of privacy because she had undergone 

routine physicals involving blood-testing and urinalysis as a condition of 

employment and because she had received prior notice of the drug testing at issue 

and signed a consent form. Accordingly, although certain of the categories of 

employees made subject to testing under the University of Texas System policies 

have been held to be constitutional by courts in other contexts, we think that 

determination of the appropriateness of the categories established by these policies 

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Honorable James F. Hury, Jr. 

(DM-121) 

would require fact-findings specific to conditions at the University of Texas Health 

Center at Tyler, UTMBG, and SBI. 

Similarly, although it seems likely that applicant testing, as opposed to 

employee testing, would be given somewhat greater rein by the courts, we are 

unable to conclude here that the applicant testing provisions of the center policy, or 

the pre-employment testing policies of SBI to which UTMBG faculty and residents 

are subject, would withstand constitutional scrutiny as a matter of law. We believe 

that a court would consider a range of essentially fact-bound matters, similar to 

those factors discussed above with respect to employee testing, before reaching a 

conclusion See Von Raab (testing of customs service employees applying for 

transfer to certain job categories); Haas, The Supreme COUJT Enters the “lar Wad 

Drug Testing, Public Employee-s, and the Fourth Amendment, 94 DICK. L REV. 305, 

341-42 (1990). 

Finally, we turn to the question of the viability of Attorney General Opinion 

JM-1274. In Attorney General Opinion JM-1274, this office concluded that a 

sheriffs department’s “random drug testing” of deputy sheriffs and jailers by 

urinalysis would violate privacy protections under the Texas Constitution. The 

opinion based its conclusion on Texas State Employees Union v. Texas Depk of 

Mental Heahh & Mental Retaraktion, 746 S.W.2d 203 (Tex. 1987) (hereinafter 

TSEU”). a case in which the Texas Supreme Court held that a state agency’s policy 

of subjecting its employees to polygraph examinations violated privacy protections 

under the state constitution. Under TSEU, to pass constitutional muster a 

governmental body 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. Attorney General Opinion JM-1274 concluded 

that a drug testing policy will not pass constitutional muster where the government 

has shown no governmental objective to justify the intrusion into the privacy of its 

employees. 

We believe that Attorney General Opinion JM-1274 correctly concluded that 

the Texas Supreme Court would hold that the collection and testing of urine 

implicates privacy interests protected by the Texas Constitution. Although no Texas 

%e University of Texas System has expressed concern as to the meaning of ‘random drug 

testing” as d&cued in Attorney General Opinion m-l274 at 1. To dar@, a pre-employment or 

employee policy that subjects all appicants for or employees in specik positions to drug testing 

prowdurcs without exception would not be considered a “random’ policy, 

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Honorable James F. Hury, Jr. 

(DM-121) 

court has addressed the constitutionality of a drug testing policy in a reported 

opinion, we believe there is a strong likelihood that Texas courts will construe the 

state constitution to place broader limitations on drug testing of public employees 

than does the federal constitution. See ffeitman v. Texas, 815 S.W.2d 681 (Tex. 

Crim. App. 1991) (suggesting that the protections of article I, section 9 of the Texas 

Constitution may exceed those in the Fourth Amendment of the United States 

Constitution); State of Tetas v. Morales, No. 3-91-195CV (Tex. App.--Austin, March 

11, 1992, n.w.h.) (applying state constitutional privacy test from TSEU in striking 

down state statute criminalixing certain consensual adult sexual behavior). 

Both requesters here have stated what they believe to be the governmental 

objectives justifying the drug testing policies at issue.5 We do not opine as to 

whether such objectives might be achieved by less intrusive means, as such a 

determination necessarily involves resolution of facts. The governing boards that 

intend to implement these policies, or the board of any governmental body 

implementing a drug testing policy, should examine their respective policies in view 

of both the federal and state constitutional standards discussed in this opinion. This 

office recommends that any governmental body that implements a drug testing 

policy make findings to support the conclusion that its governmental objectives 

cannot be achieved by less intrusive means, bearing in mind that decisions regarding 

the constitutionality of all drug testing policies may be challenged in court. 

%he League City policy statea that it is ‘designed to eliminate the use of drugs and alcohol 

and their effe& ia the workplace, so as to better provide for tbc general health and safety of its 

employees.’ City Policy 9 1.01. The University of Texas Health Center at Texas states that its interest 

in tesbg certain categories of employees arisea from the ‘extraordinary safety hazard” posed by a 

;dr~@xl employee,” the danger of ‘impairmeat’ of the ‘hospital’s integrity and the risk of 

. 

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Honorable James F. Hury, Jr. 

(DM-121) 

SUMMARY 

The determination whether a particular dmg testing policy 

is constitutional involves questions of fact and is therefore 

beyond the scope of an attorney general opinion. The governing 

board of a governmental body must make those determinations 

in the first instance, subject to court review in the event the 

policy is challenged. 

w@mdom k, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Madeleine B. Johnson 

Assistant Attorney General 

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