                      The Attorney             General of Texas
                                        December        19,     1979
MARK WHITE
Attorney General


                   Honorable Joseph E. Saar, Chairman            Opinion No. ~~-196
                   Texas Private Employment Agency
                     Regulatory Board                            Re: Constitutionality     of section
                   Capitol Building                              21916, Education      Code,    which
                   Austin, Texas                                 prohibits the use of employment
                                                                 agencies by school districts

                   Dear Mr. Saar.

                          You have requested our opinion regarding the constitutionality of
                   section 21.916 of the Education Code, recently enacted. Acts 1979, 66th
                   Leg., ch. 477, at 1047. The statute provides:

                              (a) A school district        may not list employment
                              opportunities with a private employment agency and
                              may not pay a fee to a private employment agency
                              for the referral of potential employees.
                              (b) A school district may not employ in any position
                              an applicant who is referred to the district for
                              employment by a private employment agency. Any
                              contract between the district and an applicant who is
                              referred to the district by a private employment
                              agency is void.
                              (c) In this section, ‘private employment agency’ means
                              a private employment agency subject to Chapter 245,
                              Acts of the 51st Legislature, Regular Session, 1949, as
                              amended (Article 5221a-6, Vernon’s Texas Civil
                              Statutes).

                   You ask whether any of these provisions might be Invalid as (1) impairing the
                   obligations of contracts or (2) contravening the equal protection clause,
                   under both the United States and Texas Constitutions. Initially, however, we
                   must address the problem posed by the statute’s definition of “private
                   employment agency.”

                          A “private employment agency” is defined in subsection (c) as “a
                   ‘private employment agency’ subject to Chapter 245, Acts of the 5lst
                   Legislature, Regular Session, 1949, as amended (Article 5221a-6, Vernon’s
                   Texas Civil Statutes).”   (Emphasis added). Article 5221a-6, the Private




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Honorable Joseph E. Saar    -   Page Two        (~~-106)



Employment Agency Law, was completely repealed by the 66th Legislature, Senate Bill
623, 1979, ch. 263, at 570, 574 (section 9). The new statute contains no reference to
private employment agencies. Its regulatory scheme is confined to ‘personnel service,”
the definition of which differs from the earlier definition of “private employment agency”
in that its applicability is limited to “permanent employment”

       Both section 2LQ16 and Senate Bill 623 took effect on August 27, 1979. Thus, it is
argued, at the moment section 21.916 commenced its prohibitions regarding private
employment agencies, the statutory definition of “private employment agency” became
meaningless, since, on that date, every “private employment agency” ceased to be subject
to article 5221a-6, and the term itself disappeared from the regulatory scheme.

       Such a construction,      however,    renders section 21916 ineffective.    It is well
established that a construction should be avoided that renders any part of a statute
inoperative, nugatory or superfluous.       Spence v. Fenchler, RIO S.W. 597, 601 (Tex. 1915);
Du ee v. State, 275 S.W.2d 556 (Tex. Civ.’ App. - San Antonio 1955, err. ref’d n.r.e.); See
Ti?kn--     ort Acres v. City of Port Arthur, 340 S.W.2d 325 (Tex. Civ. App. - Beaumx
1960, err. ref’d n.r.e.1. This view is strengthened by the circumstance that Senate Bill 624
was signed into law on May 24, 1979, three days prior to the Senate’s final passage of
section 2L916. The legislature must be presumed to have been aware of the prior
enactment of Senate Bill 624 at the time it enacted section 21.916. The bill enacting
section 2L916 contained an emergency clause which, upon the requisite vote of each
House, would have caused it to take effect while article 5221a-6 was still the law. Tex.
Con.& art. III, S 39. But the requisite vote was not obtained. Otherwise, no hiatus would
have occurred, Thus, we believe it is most reasonable to construe subsection (c) of section
21.916 to read:

           In this section, ‘private employment agency’ means a private
           employment agency defined by Chapter 245, Acts of the 5lst
           Legislature, Regular Session, 1949, as amended (Article 5221a-6,
           Vernon’s Texas Civil Statutes).

(Emphasis added).

      “Private employment   agency” is defined in the referenced   statute   as

           any person, place or establishment within this state who for a fee
           or without a fee offers or attempts, either directly or indirectly, to
           procure employment for employees or procures or attempts to
           procure employees for employers, except as hereinafter exempted
           from the provisions hereof.

Article 5221a-6, section l(e). Although the definition of “private employment agency” is
not equivalent in all particulars to Senate Bill 623’s definition of “personnel service,” we
believe that its retention ln section 21.916 best accords with the legislative intent in
enacting that statute. See Falkner v. Allied Finance Co., 394 S.W.2d 208 (Tex. Civ. App.




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Honorable Joseph E. Saar      -   Page Three         (ES+106)



- Austin 1965, writ ref’d n.r.e., 397 S.W.Bd 846) (repeal of adopted statute). See also lA
Sutherland Statutory Construction    S 23.32 at 278. We note, however, that agencies
engaged solely in the procurement       of employment for public school teachers and
administrators,  and organizations chartered for the purpose of conducting free employ-
 ment bureaus and agencies are among those exempted from the definition.       V.T.C.S. art
5221a-6, S 2.

        Your principal inquiry is whether any of the provisions of section 21916 violate the
constitutional guarantee of equal protection.    Since the statute at issue here essentially
involves the regulation of an occupation or profession, it must be measured by the
“rational basis” test Thompson v. Calvert, 489 S.W.2d 95 (Tex. 1972); Letter Advisory No.
122 (1977). As long ago as 1939, the Court of Criminal Appeals said that the correct
standard to be applied in such instances is whether the classification employed by the
statute

           can be said to have no reasonable relation to the promotion of        the
           general welfare . . . . the classification must be reasonable . . .   and
           must rest upon some ground of difference having a fair                and
           substantial relation to the object of the legislation, so that         all
           persons similarly circumstanced shall be treated alike.

Ex parte Tigner, 132 S.W.2d 885, 894 (Tex. Crim. 1939).

      In a recent federal case in Texas, a school district rule had prohibited any outside
employment by teachers or principals.       The court held that since “teachers” did not
comprise a “suspect classification,” the ‘less stringent ‘rational basis test’ ” should be
applied to the school board’s policy. Applying that test, the court found the policy to be

           reasonably    related to a legitimate state interest . . . the state has
           an interest    in well-run schools for its children and it is reasonable
           to assume      that preventing teachers and principals from having
           substantial   outside interests furthers that interest

Gosney v. Sonora Independent School District, 430 F. Supp. 53,60 (N.D. Tex. 1977).

       We believe that the same may be said of the interest which the legislature is seeking
to promote in section 21916. The new statute may be related to the long-standing
statutory directive that teachers and other school district employees take the same oath
required of state officials, which includes the affirmation that the individual has

           not directly nor indirectly paid, offered, or promised to pay,
           contributed, nor promised to contribute any money, or valuable
           thing, or promised any public office or employment, as a reward to
           secure my appointment or the confirmation thereof.

Education Code, section 2.06; Texas Constitution, article 16, section 1. We cannot say that
the legislature erred in believing that the policy upon which the oath requirement is based




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Honorable Joseph E. Saar     -   Page Four        (~-106)



serves a legitimate state interest, nor in concluding that section 21916 is a reasonable
means of promoting that policy.           See Attorney     General Opinion H-1027 (1977).
Accordingly, it is our opinion that sectio-1916   does not contravene the equal protection
clause of either the United States or Texas Constitutions,   See Grasko v. Los Angeles City
Board of Education, 107 CaL Rptr. 334, 345 (Cal. App. 1973)F

       As to the contention that section 21.916 runs afoul of the federal and state
constitutional  provisions prohibiting the impairment of the obligation of contracts, a
problem would clearly arise if subsection (b) were applied to effect the avoidance of
contracts entered into prior to the effective date of the statute.        See Open Records
Decision No. 64 (1975). Since we are obliged, however, to construe everystatute,     if at all
possible, so as to sustain its constitutionality,  Hammick v. Simpler, 95 S.W.Zd 357, 359
(Tex. 1936), we believe that subsection (b) should-be read to operate prospectively only.

                                       SUMMARY

           Section 21916 of the Education Code, which prohibits a school
           district from securing its teachers through a “private employment
           agency,” is not unconstitutional.

                                             vewt&T&


                                                  MARK     WHITE
                                                  Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Ernest Boardman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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