               TRR      ATTORNEY              GENERAL
                              OF TEXAS



                                  June 24, 1974


The Honorable Robert S. Calvert                 Opinion No. H-    333
Comptroller  of Public Account8
State Finance Building                          Re: Validity of provirion in
Austin, Texae                                   Appfoptiation  Act rertricting
                                                employment of aliapr.

~Dear Mr.   Calvert:

         The General Appropriatione     Act for fiecal 1974-1975 (Actr 1973,
63rd Leg.,   ch. 659, p. 1786) containe, ae one of the rpecial provirionr
applicable to executive and adminirtrative     dapaztnient and agenciee,  the
followipg,  Art. III Section 2 (a’t p. 2054):

                     No money rhall be paid out of any appropriation
                 made in thir Article for personal rervicer   for a
                 longer period than ninety (90) dayr to any perron
                 who ir not a citizen of the United Stater unlerr the
                 pereon bar begun naturalization proceedingr.

         You have aoked whether the provirion ir (1) unconrtitutional or (2)
in conflict with other provirionr of the Act forbidding that perronnel trans-
actions be made on the barie of national .origin (Sec. III, at p. 1967),

        We believe the firet pert of your,quertion ia definitely answered by
the U. S. Supreme Court decirion in Sugarman v., Dougall, 413 U. S. 634,
(1973) where the Couzt had for conoideration a rection of the New York
Civil Service Law providing:

                     Except ae herein otherwire provided,      no perron
                 ehall be eligible for appointment for any position in
                 the competitive   clarr unlear he ir a citizen of the
                 United Staten.




                                   p. 1539
The Honorable   Robert   S. Calvert     page 2   (H-333)




        Citing careo Buch aa Graham v. Richardron,    403 U.S. 365 (1971),
the Court held the New York statute violated the Fourteenth Amendment’8
equal protection guarantee.  And see Attorney General@’ Opinion0 0866
(1939). R-2247 (1950). M-447 (1969), H-81 (1973), and H-157 (1973).

         The Court, however,     wan careful to note that it did not hold that,
on the basis of an individual determination,     an alien might not be refuoed
or discharged from public employment on the ba8ir of noncitieenrhip.          It
further pointed out that ‘it did not hold that a rtate could not, in an approp-
riately defined clan8 of positiona,   require citizenrhip as a qualification
for office.                                                      .

         In a footnote the Court stated that it intimated no view aa to the
conrtitutionality   of citizenship requirement8   impored in federal government
employment.       And see Eoninooa v. Farah Manufacturing Company, 414 U. S.
86, (1973), concerning private industry hiring practicea.

        It ir our opinion that the quoted provirion of the Texan ApRropriation
Act is too broad and ii violative   of the equal protection claure of the
Fourteenth Amendment tomthe United Statea Conrtitution.

        In view of the foregoing   opinion, it ir unnecerrary for us to anawer
whether the quoted provirion     conflictr with thone prohibiting national origin
as a basin for personnel tranractionr.      But see Erniwa      v. Farah Manuf a -
turing Company.

                                SU.MMARY

                    A.rtate may require citisenrhip or commencement
                of the naturaliration procena as a requirement for
                employment in specific,   appropriately defined poritionl.
                However a broad policy declaration that citizenrhip    or




                                      p. 1540
’   The Honorable      Robert S. Calvert          page 3   (H-333)




                       filing for naturalization is a requirement for
                       all State employment violate6 the equel protec-
                       tion clause of the Fourteenth Amendment and
                       ie unconstitutional.

                                                           Very, tiuly yourn,
                                                           *




                                                     c/    Attorney   General   of Texan

    AP        ROVED:
         fi


                                              2


    LARR?~ F. tORK,        Fire/t Aoaistant




5GLc=-=-u
    DAVID M. KENDALL,           Chairman
    Opinion Committee




                                           p. 1541
