                      The Attorney               General of Texas
                                        March    21,    1978
JOHN L. HILL
Attorney General


                   Honorable G. L. “Lynn” Tate             Opinion No. H-1140
                   Commissioner
                   Texas Department of Labor               Re:    Whether a non-citizen of the
                     and Standards                         United States may be licensed under
                   Box 12157                               the Texas Private Employment Agency
                   Austin, Texas 78711                     Law, art. 5221a-6, V.T.C.S.

                   Dear Commissioner Tate:

                           You have requested our opinion concerning the constitutionality of
                   article    5221a-6, section 5(a)(l), V.T.C.S., which deals with Private
                   Employment Agency licensing and provides:

                              (a) Application for a license as en operator may be
                              made and shall be issued to any person who (1) is a
                              citizen of the United States. . . .

                           On numerous occasions this office has stated that such citizenship
                   requirements    are unconstitutional  under the equal protection clause of the
                   14th Amendment to the United States Constitution.              Attorney General
                   Opinions H-926 (1977) (landscape architect); H-157 (1973), R-2247 (1950), O-866
                   (1939) (physician); H-81 (1973) (certified public accountant); and M-447 (1969)
                   (vocational nurse). The United States Supreme Court has made the law quite
                   clear in this regard. Restrictions based on alienage cannot be upheld unless
                   the State can prove that the restriction         is necessary to accomplish a
                   compelling state purpose. -See
                   Surveyors v. Flores de Otero, 4
                   from being licensed as engineers); In re Griffiths, 413 U.S. 717 (1973) (aliens
                   may not be denied admission to thevbar);arman                 v. Dougall, 413 U.S.
                   634 (1973) (aliens may not be denied civil service employment); Graham v.
                   Richardson, 403 U.S. 365 (1971) (aliens are entitled to welfare benefits).
                   can discern no meaningful distinction between the rational basis for such a
                   restriction as applied to Private Employment Agency operators on the one
                   hand versus physicians, nurses, accountants and landscape architects on the
                   other. Accordingly, in our opinion article 5221a-6, section 5(a)(l), V.T.C.S.,
                   violates the 14th Amendment to the United States Constitution and is invalid.




                                                   p.   4640
Honorable G. L. “Lynn” Tete    -   Page 2 (H-1140)



                                   SUMMARY

           Article 5221e-6, section 5(e)(l), which restricts licensing es
           Private Employment Agency operators to citizens of the
           United States, is unconstitutional.

                                            *ry    truly yours,




                                   /    1’ Attorney General of Texas

APPROVED:




Opinion Committee

jst




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