                       TEIE      A'ITORNEY
                                    OF TEXAS
                                 Aumruu.   TEXAS          787U
  JOHN    L.     ar-
A--            0-u

                                       July 30,    1975


         The Honorable Oscar H. Mauzy                        Opinion No.   H- 654
         Chairman
         Senate Education Committee                          Re:    Constitutionality   of
         Senate Chambers                                            article 4413(31),
         State Capitol Building                                     V. T. C. S., providing
         Austin,  Texas 78711                                       a durational require-
                                                                    ment as a prerequisite
                                                                    to obtaining a veterans
                                                                    preference   in state
         Dear Senator   Mausy:                                      employment.

             You have requested our opinion concerning the constitutionality      of the
         durational residency  requirement  of article 4413(31).   V. T. C. S., which
         grants a preference  in public employment    to veterans:

                 . . . who are and have been citizens of Texas
                 for not less than five (5) years preceding the
                 date of applicat>on in pursuance of this Act,
                 , . .
              Under the 14th Amendment to the Federal Constitution one is a citizen
         of the state of his domicile,   that is, the state where he resides and intends
         to remain indefinitely.     Paudler v. Paudler,   185 F. Zd 901 (5th Cir. 1950),
         cert. denied 341 U.S.    920 (1951).  Thus article 4413(31) would exclude
         from the preference     those veterans who have resided in Texas for less than
         five years.

             As a general matter,     a state may grant preferences   to veterans.   Rios
         v. Dillman,  499 F.2d 329 (5th Cir. 1974); Koelfgen v. Jackson,       355 F.Supp.
         243 (D.Minn.   1972)(3-judge    court) aff’d. mem. 410 U.S. 976 (1973)~ E.
         Fredrick v. United States,     507 F. 2d 1264 (U.S. Ct. Cl. 1974).




                                             p. 2870
The Honorable   Oscar   H.   Mauzy,   page 2




     However,  several federal district courts have determined      durational
residency  requirements   to constitute a denial of equal protection in the
context of veterans’ preferences    and benefits.   In Carter v. Gallagher,
337 F. Supp. 626 (D. Minn. 1971), the court held unconstitutional     a five
year residency   requirement  contained in Minnesota’s     veteran preference
act.   The court quoted Shapiro v. Thompson,      394 U. S. 618 (1969). in which
the Supreme Court held unconstitutional     a residency   requirement   for the
receipt of welfare benefits.

       The waiting-period       provision denies welfare
       benefits to otherwise eligible applicants        solely
       because they have recently moved into the
       jurisdiction.      But in moving from State to State
       or to the District of Columbia appellees were
       exercising     a constitutional   right, and any
       classification     which serves to penalize the
       exercise     of that right, unless shown to be
       necessary      to promote a COMPELLING         govern-
       mental interest,      is unconstitutional.  ’ 394 U.S.
       at 634, 89 S. Ct. at 1331. (Emphasis        in original).

        Accord:    Cole v. Housing Authority of City of
        Newport,    435 F. 2d 807. 809 (1st Cir. 1970);
        King v. New Rochelle Municipal Housing
        Authority,    442 F. 2d 646 (2d Cir. 1971). 337
        F.Supp.    at 629.

Noting that there had been some confusion in the lower courts concerning
which fundamental right was relied in Shapiro, the district court stated:

        . . . Regardless   of what interpretations of Shapiro
        formerly  obtained, the matter has apparently been
        settled by the Supreme Court speaking through
        Mr. Justice Blackmun in Graham v. Richardson,
        403 U.S.  365. 91 S. Ct. 1848, 29 L. Ed.Zd 534:




                                      p. 2871
The Honorable    Oscar   H.   Mauzy,   page 3




                 ‘It is enough to say that the classifi-
                cation involved in Shapiro was sub-
                jected to strict -tiny      under the
                 compelling   state interest test, not
                because it was based on any suspect
                criterion   such as race, nationality,
                or alienage,    but, because it impinged
                upon the fundamental right of inter-
                 state movement.      . . . ’ 403 U.S. at
                375 (Emphasis      supplied by district
                court) , . . 337 F.Supp.       at 632.

Thus,   the court in Gallagher    concluded      that:

        . . . There is no question that the fundamental
        right to interstate   travel is involved in the instant
        case.    It is no more open to question,      in the opinion
        of this Court, that a statute which requires a person
        who has recently traveled interstate to wait five
        years to obtain employment       preference     granted
        immediately     to an otherwise equally qualified
        person who did not so travel imposes a penalty
        operative solely upon the exercise        of that right,
        Under such circumstances        the defendants must
        demonstrate     that there is some compelling       State
        interest which justifies    the distinction.     Oregon v.
        Mitchell,    400 U.S. at 238, 91 S. Ct. 260. 337
        F. Supp. at 632.

The court found no such compelling     state interest and therefore held the
five year residency   requirement  unconstitutional   as violating the equal
protection clause of the 14th Amendment by discriminating        against a class
of persons exercising   the fundamental right of interstate travel.

     In Stevens v. Campbell,     332 F. Supp. 102 (D. Mass.   1971) (3-judge court),
the court addressed     a five year residency  requirement   in the Massachusetts
veterans    preference   act and held it unconstitutional as a denial of equal pro-
tection,   for the requirement:




                                       p, 2872
The Honorable    Oscar   H. Mauzy.   page 4




        .  . . imposes  upon admission    to the class
        of persons who are entitled to preference
        in public employment   a limitation which
        has no relevance to any legitimate     govern-
        mental purpose.   ,332 F. Supp. at 106.

Thus the court concluded that the residency       requirement     failed to satisfy
even the more lenient rational basis test.

    In Barnes v. Board of Trustees,     Michigan Veterans    Trust Fund,
369 F. Supp. 1327 (W. D. Mich. 1973) (3-judge court), the court held
unconstitutional  a five year residency  requirement  for eligibility for
benefits from a Veterans    Trust Fund.   The court relied on Shapiro, Graham,
and Gallagher,   and held:

        . . . Having found that this durational residency
        requirement  penalizes   the exercise   of the fun-
        damental right to travel,   this court must deter-
        mine whether the requirement      is necessary   to
        promote a compelling   state interest.     369 F. Supp.
        at 1335.

        . . . this durational residency   requirement  is held
        to be unconstitutional because it is not necessary
        to promote a compelling    state interest.  369 FI
        Supp. at 1337.

     While the Supreme Court has not addressed         the constitutionality   of a
residency   requirement   in a veterans preference      or benefit statute, the seven
federal district judges who have considered        the question have unanimously
determined that the decision of the Supreme Court in the Shapiro case requires
such a residency provision to be held unconstitutional.          On the authority of
these cases it is our opinion that the durational residency        requirement    of
article 4413(31) probably would be held to be unconstitutional         under the equal
protection clause of the 14th Amentment.         However,    this opinion should not
be construed as indicating that g        residency   requirement    for veterans
preference   would be unconstitutional.      See. August v. Bronstein,       369 F.Supp.
190 (S. D. N. Y. 1974)(3-judge   court).




                                      p. 2873
The Honorable    Oscar   H. Mauzy,       page 5




     The courts in Gallagher,    Stevens,  and Barnes merely deleted the
invalid residency   requirement;    the remaining provisions remained
operative.  Article  Ila,  V. T. C. S., provides:

        Sec.   1. Except to the extent otherwise specifically
                  provided in a statute enacted previously      or
                  in the future, if any provision of a statute
                  or its application to any per.son or circum-
                  stance is held invalid, the invalidity does
                  not affect other provisions   or applications
                  of the statute which can be given effect with-
                  out the invalid provision   or application,   and
                  to this end the provisions   of each statute
                  are declared to be severable.

        Sec.   2. Nothing in this act affects the power or the
                  duty of a court in an appropriate   case to as-
                  certain and effectuate the intent of the legis-
                  lature with regard to the severability   of a
                  statute.

     Since article 4413(31) contains no specific provision     regarding severability,
and since we believe the principal intent of that article is to grant veterans
preference   in governmental     employment,   in our opinion all provisions   of
article 4413(31) other than the durational residency provision        remain operative.
Accordingly,     article 4413(31) gives a preference   to all otherwise qualified
veterans who are citizens of Texas.

                               SUMMARY

             The five year durational    residency   requirement
        of the Veterans   Preference    Act, article 4413(31),
        V. T. C. S., would probably be held to be unconstitutional.
        The remaining provisions      are operative.    Thus, veterans
        who otherwise qualify under the Act are entitled to a
        preference   if they are citizens of Texas at the time of
        application.




                                     /    /   Attorney   General   of Texas
                                     y.       2874
The Honorable   Oscar   H. Mauzy,   page 6




APPROVED:




Opinion   Committee




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