Mr. Allen Parker, Sr. 

Commissioner 

Texas Department of 

Labor & Standards 

P. 0. Box 12157 

Austin, Texas 78711 

Dear Mr. Parker: 

Opinion No. J-M-623 

Re: Constitutionality of article 

5196, V.T.C.S., requiring corporations to give a written statement 

of cause for discharge of employees 

You have requested our opinion regarding the validity of section 

3 of article 5196, V.T.C.S. The statute was originally enacted in 

1907 by the Thirtieth Legislature. See Acts 1907, 30th Leg., ch. 67, 

at 142. The 1907 version provided: - 

Either or any of the following acts shall constitute discrimination against persons seeking . 

employment: 

. . . . 

(3) Where any corporation or receiver of same, 

doing business in this state, or any agent or 

employee of such corporation or receiver, shall 

have discharged an employee, and such discharged 

employee demands a statement in writing, of the 

cause of his discharge, and such corporation, 

receiver, agent or employee thereof fails to 

furnish a true statement of same to such employee 

within ten days after such demand, provided, that 

such demand by the employee for said statement 

shall be made in writing. . . . 

Acts 1907, 30th Leg., ch. 67. at 142. This statute, as amended in 

1909, was ruled unconstitutional by the Texas Supreme Court in SC. 

Louis Southwestern Railway Co. of Texas v. Griffin, lil S.W. 703 (Tex. 

1914). 

This statute was reenacted in 1929 in its present form, which 

provides: 

Either or any of the following acts shall 

constitute discrimination against persons seeking 

employment: 

p. 2806 
Mr. Allen Parker, Sr. - Page 2 (JM-623) 

. . . . 

3. Where any corporation, or receiver of the 

same. doing business in this state, or any agent 

or employee of such corporation or receiver, shall 

have discharged an employee and such employee 

demands a statement in writing of the cause of his 

discharge, and such corporation, receiver, agent 

or employee thereof fails to furnish a true statement of the same to such discharged employee, 

within ten days after such demand, or where any 

corporation or receiver of the same, or any 

officer or agent of such corporation or receiver 

shall fail, within ten days after written demand 

for the same, to furnish to any employee voluntarily leaving the service of such corporation or 

receiver, a statement in writing that such 

employee did leave such service voluntarily, or 

where any corporation or receiver of the same, 

doing business within this state. shall fail to 

show in any statement under the provision of this 

title the number of years and months during which 

such employee was in the service of the said 

corporation or receiver in each and every separate 

capacity or position in which he was employed, and 

whether his services were satisfactory in each 

such capacity or not, or where any such corporation or receiver shall fail within ten days after 

written demand for the same to furnish to any such 

employee a true copy of the statement originally 

given to such employee for his use in case he 

shall have lost or is otherwise deprived of the 

use of the said original statement. 

See Acts 1929, 41st Leg., ch. 245, 91, at 509; see also Attorney 

General Opinion O-3562 (1941) (general history of this law against 

blacklisting). 

The Griffin case held, among other things, that the impairment of 

a corporation's right to discharge employees at will without cause by 

the state is a violation of the corporation's constitutional right of 

liberty of contract, which right includes the corresponding right to 

accept a contract proposal. 171 S.W. at 704. In addition, the court 

held that the impairment of a corporation's right to discharge 

employees without cause by the statute is a denial of the equal 

protection of the laws secured by the Fourteenth Amendment to the 

United States Constitution. The court also held that article I, 

section 8. of the Texas Constitution was violated because the liberty 

to speak or write includes the corresponding right to be silent and 

this right was, infringed by the provisions of the statute compelling a 

corporation to give a discharged employee a statement of the cause of 

p. 2807 
Mr. Allen Parker, Sr. - Page 3 (JM-623) 

the discharge. Id. at 705. Therefore, the decision rested on both 

federal and state?&stitutional grounds. 

When the codifiers of the Revised Civil Statutes of Texas in 1925 

revised article 594, the definition of discrimination by employers was 

omitted along with many of the material provisions of the former law 

on that subject, thereby prompting the Forty-first Legislature to 

reenact article 5196 in its present form. See Acts 1929, 41st Leg., 

ch. 245, 551, 2, at 509. Apparently therewas no law on the matter 

covered by article 5196 between 1925 and 1929. 

In 1941 this office considered the validity of section 3 of 

article 5196 and held that 

the reason that the codifiers of the Revised Civil 

Statutes of Texas, of 1925, omitted said [1909 Act 

as amended] from the 1925 codification was due to 

the fact that this [Act] had been declared 

unconstitutional by the Supreme Court in the case 

of St. Louis Railway Co. v. Griffin. 

It is our opinion that the decision of the 

Supreme Court in the above cited case is controlling and decides the question presented in 

your inquiry; therefore, it is the opinion of this 

department that section 3 of article 5196, 

Vernon's Civil Statutes is unconstitutional, and 

that a corporation is not required to give a 

discharged employee a statement in writing of the 

cause of his discharge. . . . 

Attorney General Opinion O-3562 (1941). In 1957, the Attorney General 

reaffirmed the 1941 Opinion and interpreted the Griffin case as 

invalidating not only section 3, but the entire. act. See Attorney 

General Opinion WW-114 (1957). You have asked us to reconsider and to 

overrule these two prior Attorney General Opinions to conform with intervening judicial decisions and statutory enactments. We will 

evaluate section 3 of article 5196, V.T.C.S., in light of those 

considerations. 

You make three suggestions as to why the Griffin case is no 

longer controlling and the Attorney General Opinions should be 

overruled. 

First, you argue that the idea of substantive due process upon 

which the Griffin case was based has been discredited. The Griffin 

case was decided during a period when the United States Supreme Court 

used the Fourteenth Amendment to the United States Constitution as a 

protection of fundamental economic and property rights particularly in 

the area of labor legislation. See, e.g., Lochner v. New York, 198 

U.S. 45 (1905); Coppage v. Kansas, 236 U.S. 1 (1915); Railroad 

P. 2808 
Mr. Allen Parker, Sr. - Page 4 (JM-623) 

Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935); see also 

L. Tribe, American Constitutional Law, at 439-42 (1978); G. Gunther, 

Constitutional Law, at 502-33 (10th ed. 1980). For example, in 

Lochner v. New York, the Court held invalid a New York law prohibiting 

the employment of bakery emulovees for more than ten (10) hours oer 

day or- s&y (60) hours pe; week. Justice Peckham, &it&g for the 

majority, reasoned that although the state has the authority, through 

its police power, to enact legislation to couserve the morals and the 

health or safety of the people, such power is limited by the right of 

the individual to liberty of person and freedom of contract. 198 U.S. 

at 57. The liberty of an individual to make contracts for labor 

applied to both the employer and employee. 198 U.S. at 59. Consequently, the liberty to contract was viewed as a fundamental 

economic right and the state could not interfere with that right 

"unless there be some fair ground , reasonable in and of itself, to say 

that there is material danger to the public health or safety of the 

employees." 198 U.S. at 61. It is this concept of substantive due 

process upon which the Texas Supreme Court based its decision in the 

Griffin case in 1914. 

However, the substantive due process reasoning employed by the 

Griffin court is no longer a viable analysis under federal constitutional law. See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); 

Nebbia v. New-rk, 291 U.S. 502 (1934). The prevailing standard used 

to evaluate state leaislative action is whether au economic reeulation 

is reasonable in rilation to its subject and is adopted-in the 

interests of the community. West Coast Rote1 Co. v. Parrish, 300 U.S. 

at 381. Therefore, a state may deprive an individual of his liberty 

or freedom of contract in the exercise of its police power, if the 

legislative action is not arbitrary or capricious, and as long as 

procedural due process is given. 

This prevailing standard was articulated by the United States 

Supreme Court as follows: 

So far as the requirement of due process is 

concerned, and in the absence of other constitutional restriction, a state is free to adopt 

whatever economic policy may reasonably be deemed 

to promote public welfare, and to enforce that 

policy by legislation adapted to its purpose. The 

courts are without authority either to declare 

such policy. or, when it is declared by the legislature, to override it. If the laws passed are 

seen to have a reasonable relation to a proper 

legislative purpose, and are neither arbitrary nor 

discriminatory, the requirements of due process 

are satisfied, and judicial determination to that 

effect renders a court functus officio. . . . 

p. 2809 
Mr. Allen Parker, Sr. - Page 5 (JM-623) 

Nebbia v. New York, 291 U.S. at 537. It is this standard we must 

emclov in determinina whether article 5196. as amended in 1929, 

violates the due process clause of the Fourteenth Amendment to the 

United States Constitution. Accordingly. the sole question in this 

respect is whether the statute is reasonable in relation to its 

subject and adopted in the interests of the community. See, e.g., 

West Coast Hotel Cc. v. Parrish. 300 U.S. 379 (1937); see also Seoane 

v. Ortho Pharmaceuticals. Inc., 660 F.2d 146 (5th Cir. 1981). 

The Supreme Court has previously upheld the Missouri "service 

letter" statute finding it to be within the state's police power and 

not an arbitrary interference with freedom of contract amounting to a 

deorivaticn of liberty or property without due process. See 

Prudential Insurance Co; v. Cheek..259.U.S. 530 .(1922); see also & 

dunhes. 169 S.W.2d 328 (MC. 1943) (statute held constitutional 

under -_--State constitution). The service letter statute, similar to 

section 3 of article 5196, V.T.C.S., required corporations to issue 

service letters on request of corporation employees discharged or 

voluntarily quitting its service. The Supreme Court in the Cheek case 

reasoned that the Missouri statute was enacted to prevent injustice 

and oppression which had become so great as to be a public evil to 

large numbers of laboring people. 259 U.S. at 535. Regardless of the 

Griffin decision, we believe that the United States Supreme Court, 

applying its present substantive due process analysis to section 3 of 

article 5196, V.T.C.S., would reach a similar conclusion. 

Accordingly, we believe that section 3 of article 5196, V.T.C.S., has 

a reasonable relation to a proper legislative purpose and does not 

violate the due process clause of the Fourteenth Amendment to the 

United States Constitution. 

The Griffin court also based its decision on the equal protection 

clause of the Fourteenth Amendment tc the United States Constitution. 

We believe that the argument set forth in Griffin is no longer valid 

under present equal protection analysis. Section 3 of article 5196 

should be evaluated under the present rational basis standard. In 

light of the present standard, which is the same as the substantive 

due process standard, the statute does not violate the constitutional 

equal protection provision. See Seoane v. Ortho Pharmaceutical, Inc., 

660 F.2d 146 (5th Cir. 1981).- 

Finally, the' Griffin case also declared the 1907 version of 

section 3 of article 5196 invalid because the provision violated 

article I. section 8, of the Texas Constitution. See 171 S.W.Zd at 

705. As stated above, the Texas Supreme Court heldhat article I, 

section 0, was violated because the corporation had a right of 

"liberty to speak" or write, and this right carried with it the 

corresponding right to be silent or not to give a discharged employee 

a statement of the cause of the discharge. Id. This construction of 

article I. section 8, has never been challengedin our court system. 

p. 2810 
Mr. Allen Parker, Sr. - Page 6 (m-623) 

Although the "liberty to speak" guaranteed in article I, section 

8, of the Texas Constitution is similar but not identical to the right 

of free speech guaranteed by the First Amendment to the United States 

Constitution, the Texas courts may construe article I. section 8, more 

strictly than federal courts have construed the free speech clause of 

the First Amendment. Cf. Pruneyard Shopping Center v. Robins, 447 

U.S. 74 (1980); Cooper ~California, 386 U.S. 58, 62 (1967). But the 

state court's construction of a state constitutional provision cannot 

have the effect of denying an individual any federal constitutional 

right. See Pruneyard Shopping Center v. Robins, -. - 

Therefore, under article I. section 8, of the Texas Constitution, 

a corporation has the right not to speak or write letters of discharge. .Even though we may disagree,with this interpretation, we are 

not at liberty to modify or overrule the Texas Supreme Court's holding 

in Griffin. This is especially true since cur legisiature and courts 

have not done so. 

Moreover. the corporation's right should not be abridged when the 

legislature has enacted other statutes to curb the problem intended to 

be solved. See, e.g.. V.T.C.S. arts. 5196c (definition of blacklisting); 5196d (prohibition against blacklisting); 5196e (penalty for 

engaging in blacklisting). 

Attorney General Opinions O-3562 (1941) and W-114 (1956) are 

overruled to the extent they conflict with this opinion. 

SUMMARY 

Section 3 of article 5196, V.T.C.S., does not 

violate the due process clause nor the equal protection clause of the Fourteenth Amendment to the 

United States Constitution. However, the statute 

does violate article I, section 8. of the Texas 

Constitution which has been interpreted to grant a 

corporation the right not to write letters stating 

the true cause of discharging employees. 

Very truly yours J 

JIM%, 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MAP.Y KELLER 

Executive Assistant Attorney General 

P. 2811 
Mr. Allen Parker, St. - Page 7 (JM-623) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 2812