                                               The Attorney          General of Texas
                                                               May 18, 1983
   JIM MATTOX
   Attorney General


                                              Honorable Ed Emmett                    Opinion No. JM-33
   Supreme   Court Building
   P. 0. BOX 12548
                                              Chairman
   Austin. TX. 78711. 2548                    Committee on Cultural &                Re: Constitutionality of pro-
   5121475~2501                                  Historical Resources                visions in Senate Bill No. 427
   Telex    9101874.1387                      Texas House of Representatives         relating to race, creed, sex,
   Telecopier     5121475-0288                P. 0. Box 2910                         religion, national origin, and
                                              Austin, Texas   78769                  geographical distribution of
   1807 Main St., Suite 1400                                                         appointees to state commission
   Dallas. TX. 75201-4709
   2141742-8944                               Dear Representative Emmett:

   4824 Alberta         Ave., Suite     180
                                                   You have requested our opinion regarding the constitutionality of
   El Paso, TX.         79905-2793            a portion of Senate Bill No. 427, presently pending in the
   915/533-3484                               Sixty-eighth Legislature.    The bill provides, with respect to
                                              appointments to the State Library and Archives Commission:
p,20          Dallas Ave., Suite 202
        ,OUS,O”, TX. 77002-8986
                                                       Appointments to the Commission shall be made with
       7131850-0888                                    due regard for the race, creed, sex, religion,
                                                       national origin, and geographical distribution of
                                                       the appointees.
   806 Broadway,           Suite 312
   Lubbock,     TX.       79401-3479
   8081747-5238
                                                   Article I, section 3a, of the Texas Constitution states:

                                                       Equality under the law shall not be denied or
       4309 N. Tenth. Suite S                          abridged because of sex, race, color, creed, or
       McAllen.     TX. 78501~1885                     national origin.
       512/882-4547

                                              Article I, section 4, of the Texas Constitution provides:
       200 Main Plaza.suite 400
       San Antonio. TX. 782052797                      No religious test shall ever be required as a
       5121225.4191                                    qualification to any office, or public trust, in
                                                       this State; nor shall any one be excluded from
       An Egual      Opportunity/                      holding office on account of his religious
       Affirmative     Action     Employer             sentiments, provided he acknowledge the existence
                                                       of a Supreme Being.

                                                   In Mercer v. Board of Trustees, North Forest Independent School
                                              District, 538 S.W.2d 201 (Tex. Civ. App. - Houston [14th Dist.] 1976,
                                              writ ref'd n.r.e.), the court, in analyzing article I, section 3a,
                                              adopted the "two-tiered" approach to judicial review devised by the
                                              United States Supreme Court in addressing classifications under the




                                                                            p. 140
Honorable Ed Emmett - Page 2   (JM-33)




federal equal protection clause. Under one approach, the "rational
basis" test, the court merely decides whether the classification is:

          reasonable, not arbitrary, and. . . rest[s] upon
          some ground of      difference having   a   fair
          substantial relation to the object of the
          legislation.

538 S.W.2d at 204. This is a permissive standard of judicial review.
Id. See also Reed v. Reed, 404 U.S. 71, 76 (1971). Under the "strict
scrutiny" test, on the other hand, the classification will be upheld
only if the governmental body shows that the classification is
necessary to promote a compelling interest. See Dunn v. Blumstein,
405 U.S. 330. 34 (1972). Strict scrutiny      -

          is triggered either by laws which affect certain
          'fundamental rights'. . . or which provide for
          different treatment of persons on the basis of a
          'suspect classification' (such as race, alienage,
          and national origin).

538 S.W.2d at 204.

     Under the plain language of article I, sections 3a and 4, of the
Texas Constitution race, creed, sex, religion and national origin are
suspect classifications. In our opinion, it is difficult to imagine
how a legislative directive to select members of a public body on the
basis of such suspect categories could serve a compelling state
interest. We are aware of no judicial decision which has so held, and
we must therefore conclude that that portion of Senate Bill No. 427
which requires consideration to be given to any such suspect
classification in making appointments to the commission is,    on its
face, violative of article I, sections 3a and 4, of the Texas
Constitution.

     On the other hand, geographical distribution has not been held to
be a suspect classification. See Hodel v. Indiana, 452 U.S. 314, 332
(1981); Halt Civic Club v. Cityof Tuscaloosa, 439 U.S. 60, 70 (1978).
Also, because no arguable fundamental rights are involved, strict
scrutiny has not been triggered. As a result, the rational basis test
is applicable. See Schweiker v. Wilson, 450 U.S. 221, 234 (1981); Cf.
Graham v. Richardson. 403 U.S. 365 (1971) (classifications based=
alienage are subject to strict scrutiny). We are unable to say that
selection of members of the State Library and Archives Comission on
the basis of geographical distribution does not "rest upon some ground
of difference having a fair and substantial relation to the object of
the legislation." Mercer, supra, at 204. Thus, we conclude that that
portion of Senate Bill No. 427 which requires consideration to be
given to geographical distribution in making appointments to the
commission is not, on its face, unconstitutional.                        -.




                               p. 141
.


    Honorable Ed Emmett - Page 3    (J&33)




         The author of the amendment has asked if the following language
    would be constitutional:

                 It is the intent of the legislature that the
              membership   of   the   commission   reflect   the
              historical   and   cultural   diversity   of   the
              inhabitants of this state; therefore, appointments
              to the commission should be         made without
              discrimination based     on  race, creed,     sax,
              religion,   national   origin    or   geographical
              distribution of the appointees.

    This language is distinguishable from the portion of Senate Bill No.
    427 which we have discussed. The first sentence of the proposed
    language states a reasonable legislative purpose with respect to the
    composition of the State Library and Archives Commission. Moreover,
    this language does not in itself direct any official to engage in any
    action, constitutional or otherwise.

           The second sentence requires that appointments to the commission
    be made on a non-discriminatory basis, and thus merely reiterates the
    requirements of article I, section 3a, of the Texas Constitution that
    equality under the law not be denied or abridged because of sex, race,
    color, creed, or national origin, and of article I, section 4, that no
    religious test be required as a qualification to any office in this
    state.    In our opinion the provision is constitutional.

                                   SUMMARY

                   Thelegislature may not, consistent "ith
              article  I, sections 3a and 4, of the Texas
              Constitution, require consideration to be given to
              matters of sex, race, color, creed, or national
              origin in making appointments to the State Library
              and Archives Commission, but is not prohibited
              from requiring that consideration be given to
              geographical distribution.

                                         &?Jfh



                                                JIM     MATTOX
                                                Attorney General of Texas

    TOM GREEN
    First Assistant Attorney General

    DAVID R. RICHARDS
    Executive Assistant Attorney General



                                       p. 142
Honorable Ed Emett   - Page 4    (JM-33)




Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton




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