    OFFICE OF THE ATTORNEY   GENEFW..   STATE OF TEXAS

    JOHN    CORNYN




                                                   May 26,200O



The Honorable Jane Nelson                                Opinion No. JC-0226
Chair, Committee on Health Services
Texas State Senate                                       Re: Whether “compelling state interest” analysis
P.O. Box 12068                                           applies to a state agency’s interference with a
Austin, Texas 78711                                      parent’s right to direct the upbringing ofhis or her
                                                         children (RQ-0205.JC)


Dear Senator Nelson:

        You have requested our opinion regarding the constitutional standard to be applied when a
state agency attempts to interfere with a parent’s right to direct the upbringing ofhis or her children.
For the reasons set forth below, we conclude that the standard is “compelling state interest.”

        In the past three years the legislature has enacted two statutes that prohibit a state agency
from interfering with parental rights vis-a-vis their children. Section 15 1.005 of the Family Code,
adopted in 1999, provides: “A state agency may not adopt rules or policies or take any other action
that violates the fundamental right and duty of a parent to direct the upbringing of the parent’s
child.” Virtually identical language was added in 1997 to House Bill 425 amending chapter 81 of
the Labor Code, but was repealed when section 15 1.005 was enacted.’

         “Fundamental Rights” is a term of art for purposes ofboth equal protection and due process
analysis. See TEX. GOV’T CODE ANN. 5 311.01 l(b) (Vemon1998) (“Words and phrases that have
acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.“).    The term comprises those express and implied protections of personal
liberty recognized in the federal and state constitutions.    See Spring Branch Indep. Sch. Dist. v.
Stamos, 695 S.W.2d 556,560 (Tex. 1985), appealdim ‘d, 475 U.S. 1001 (1986); Jacks. Jack, 796
S.W.2d 543 (Tex. App.-Dallas 1990, no writ). Thus, section 151.005 ofthe Family Code simply
codifies well-established principles announced by the United States Supreme Court as long ago as
 1923 inh4eyerv. Nebraska, 262 U.S. 390,399 (1923). InPierce Y. Society ofSisters, 268 U.S. 510,
534 (1925) the Court declared that the Oregon Compulsory Education Act, which required every
person having custody of a child between eight and sixteen years to send him or her to a public
school, “unreasonably interferes with the liberty of parents and guardians to direct the upbringing
and education of children under their control,” in contravention of the Fourteenth Amendment to the



        ‘See Act of May 26, 1997, 75th Leg., RX, ch. 1225, 5 3(b), 1997 Tex. Gen. Laws 4691,4692,   repealed   by
Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, 5 6.18(h), 1999 Tex. Gen. Laws 127, 143.
The Honorable Jane Nelson     - Page 2           (X-0226)




United States Constitution. Id. at 534-35. The Court reached the same conclusion almost a half-
century later in State of Wisconsin Y. Yoder, 406 U.S. 205 (1972), when it held that the First and
Fourteenth Amendments prohibited the state from compelling Amish parents “to cause their children
to attend formal high school to age 16.” Id. at 234.

         The Supreme Court has also made clear that personal rights that can be deemed fundamental
or that are implied in the concept of ordered liberty are included in the Constitution’s guarantee of
personal privacy. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965). Those privacy rights
include matters relating to the home, marriage, procreation, motherhood, child rearing, and
education. See Carey v. Population Sews. Int’l, 431 U.S. 678,684-85 (1977). In these categories,
where fundamental rights are at issue, regulation limiting these rights can be justified only by
“compelling state interests.” See id., at 686. Legislation that attempts to infringe on these rights
must be narrowly drawn to express only valid state interests. See id.; see also Griswold, 381 U.S.
at 485.

         We conclude that, when a state agency attempts to interfere with the fundamental right of a
parent to direct the upbringing of his or her children, it must, in order to do so, satisfy the
constitutional standard of “compelling state interest.”
The Honorable Jane Nelson   - Page 3             (X-0226)




                                       SUMMARY

                       When a state agency attempts to interfere with the
              fundamental right of a parent to direct the upbringing of his or her
              child, it must, in order to do so, satisfy the constitutional standard of
              “compelling state interest.”




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
