DAN MORALES

ATTORNEY GESERAL 

### QBfficeof ttp Bttornep &neral Mate of Qfexas May 13,1992

Mr. Ray Farabee Vice Chancellor The University ofTexas 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 ofRepresentatives 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 ofthe 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 ofdrug 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 ~ofthe 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),EULdenied, 111 S. Ca.954 (1991) (m wbcthcr drug testing policy scrvcd special needs before balancing govclnment’s iatercatsagaid the employees’ privacy inter&s); AmericanFedk of Gov’l Emplops Y.Sk&w, 885 FZ!d884, 889 (DC. Cir. l989). wt. denied, 110 S. Ct. MO (1990) (same); NufionulF&n of Fed Emp/m Y.

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

%omakiagthis determination, a gownmental entitymightwantto consider,forexample,the exteotto which it will orwillnot be able to titbhold test resultsand relatedinformation borngeneral public disc&we. See Open Records DecisionNo. 594 (1991) (city employee drugtestingordinance provisiooscannot operateto exempt drug testinginformationfrom requiredpublic disclosureunder the TexasOpen RecordsAd, V.T.C.S.article6252-17a).

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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 aLsoNational 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.” VonRuub, 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 andjailers by urinalysis would violate constitutional privacy protections where no compelling governmental objectives, or “specificdemonstrable 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’sinterestin ensuring safetyjust&d random urinalysis drag testing of agency motor vehicle operators);B&stein, Ws F.2d at 456 (upholdii random drug testingof airline employees because government

hada sufficientintereat

in preventing

druguse bypersonsholdingsafety-sensitive positions in the aviation

industry);TuylorY. O’Gmdy, 888 F2d 1189.1198 (7th CL. 1989) (wrre~ions department’sinter&s in avoidingdangersof drugimpairedwork force and dragsmugglingjutified wmpehg annual urinalysisof employeeawho came into rqular contactwitk prisoners);Kap v. Clclibome

County Hosp., 763F. Supp.l362,l369 (S.D. Miss. 1991) (hospital’s interest in ensuringsafety of patientsjustitied mandatorydrug 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 FourthAmendment, 94DICK. L.REV. 305(1990).

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Honorable James F. Hury. Jr. (DM-121)

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 sensitivejobs 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 VonRaab, 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’sinterest 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 “accessto 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. (DM-121)

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 SBIpolicy, it would not be legally permissible for UTMBG to require assignments and rotations in SBI unless SBI’spolicypasses 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 ofFederal 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 iswarranted 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 Universityof Texas Systemhas expressedconcernas to the meaning of ‘randomdrug testing”as d&cued in AttorneyGeneral Opinion m-l274 at 1. To dar@, a pre-employmentor employee policy that subjectsall appicants for or employees in specik positions to drug testing prowdurcs withoutexceptionwouldnotbe considereda “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 Citypolicystateathatit is ‘designedto eliminate the use of drugs and alcohol and their effe& ia the workplace,so as to better providefor tbc general health and safety of its employees.’ CityPolicy 9 1.01. The University ofTexasHealthCenteratTexasstatesthatits interest in tesbg certaincategoriesof employees ariseafrom the ‘extraordinarysafety hazard”posed by a ;dr~@xl employee,”the danger of ‘impairmeat’of the ‘hospital’sintegrityand 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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