DAN MORALES 

ATT‘WSEY GENERAL 

QBffice of toe !Zlttornep 

@date of 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., United Stores v. 

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

p. 1222 
Honorable Fred Hill - Page 2 (DM-236) 

ordinance of the sort about which you inquire.* Cf. Sfufe v. Commsmi~ Distribu@rs, 3 17 

A.2d 697 (NJ. 1974). 

Accordingly, we conclude that a home-rule city is not precluded as a matter of law 

kom adopting an ordinance prohibiting random drug testing by private employers within 

the city. However, .we .caution that possiile legal challenges to such an ordknce might 

bebroughsundaabroadrangtofparticularfactpanans,upon~~wecarmot 

epedate in the opinion process. 

Ahomb~ecityiswtprecludcdyamanaofliw~ 

adopting an ordinance prohiiting random drug testing by private 

employers within the city. 

DAN MORALES 

Attorney General of Texan 

WILL PRYOR 

FiiASk3tMtAttO~Gcnenl 

MARYKELLER 

Deputy Attomey Gend for Litigation 

RENEAHIclc!? 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Jim Tourtelott 

ApsistrratAttO~GUlClTd 

p. 1223