### DAN MORALES

ATT‘WSEY GENERAL 

# QBffice

of toe !Zlttornep @dateof Qexas July 20, 1993 

# d3eneraI

Honorable Fred Hill Chairman Committee on Urban Atfairs Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 Opinion No. DM-236 Re: Whether the City of Austin has the authority to enact an ordinance prohibiting random drug testing by private employers within the city (RQ-526) Dear Representative Hill: You have asked this office to consider whether the City of Austin has the authority to enact an ordinance prohibiting random drug testing by private employers within the city. The City of Austin, a home-rule city, has the same general legal powers as ah home-rule cities under Texas law. The Texas Constitution gives to home-rule cities all powers of self-government not expressly denied by the legislature, but prohibits such cities from enforcing any legislation inconsistent with state laws or the state constitution. Tex const. art. XI. 8 5. You have not cited, and we sre not aware of, any Texas statute which preempts the subject of this proposed ordinance. We note, however, that certain federal statutes or regulations, such as those propounded by the Federal Railroad Administration under the authority of the Federal Railroad Safety Act of 1970,45 USC. 5 431(a), would preempt such an ordinance to the extent of their applicabiity. Apart from questions of home-rule power or preemption, the only other sorts of challenge we can imagine to such an ordinance would be takings clause, equal protection, or substantive due process arguments of the kind offered in analogous cases involving laws prohibiting the use of the polygraph or the psychological stress evaluator. See, e.g.. 

### State v. Communiy Distributors,Inc., 317 A.Zd. 697 (N.J. 1974); Norhdnvr v.

### ROS, 429 N.Y.S.Zd 844 (Sup. Ct. 1980); Gawel v. 

### Two Plus Two,Inc., 309 N.W.Zd 746 (Minn. 1981). However, we note that courts have held such constitutional challenges to economic regulation in disfavor at least since the mid-l 930’s. See, e.g., 

### UnitedStores v. &rolene Products Co., 304 U.S. 144 (1938); 

### Williamsonv. Lee Opiical Co., 348 U.S. 483 (1955). As the Minnesota Supreme Court pointed out in Gcnuel, “The standard of review applicable to an economic regulation under the qual protection clause is the

‘familiar “rational basis” test.‘” 309 N.W.Zd at 747. The protection of the privacy of residents who are also “employees” is, we believe, a sufficient rationa! basis for an

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### HonorableFred Hill - Page 2 (DM-236)



### ordinanceofthe sort about whichyou inquire.* Cf.Sfufev. Commsmi~Distribu@rs, 317 A.2d 697 (NJ. 1974). Accordingly,we concludethat a home-rulecity is not precludedas a matter oflaw kom adopting an ordinanceprohibitingrandom drug testing by private employers within the city. However, .we.cautionthat possiile legal challengesto such an ordknce might bebroughsundaabroadrangtofparticularfactpanans,upon~~wecarmot epedate inthe opinionprocess.

Ahomb~ecityiswtprecludcdyamanaofliw~ adopting an ordinance prohiiting random drug testing by private employerswithinthe city.

DAN MORALES Attorney GeneralofTexan WILLPRYOR FiiASk3tMtAttO~Gcnenl 

### MARYKELLER Deputy Attomey Gend for Litigation RENEAHIclc!? State Solicitor MADELEINEB. JOHNSON Chair,OpinionCommittee Prepared by JimTourtelott ApsistrratAttO~GUlClTd

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