                          QBfficeof toe !Zlttornepd3eneraI
                                       @date of Qexas
DAN MORALES
 ATT‘WSEY
      GENERAL                              July 20, 1993


     Honorable Fred Hill                          Opinion No. DM-236
     Chairman
     Committee on Urban Atfairs                   Re: Whether the City of Austin has the
     Texas House of Representatives               authority to enact an ordinance prohibiting
     P.O. Box 2910                                random drug testing by private employers
     Austin, Texas 78768-2910                     within the city (RQ-526)

     Dear Representative Hill:

            You have asked this office to consider whether the City of Austin has the authority
     to enact an ordinance prohibiting random drug testing by private employers within the
     city.

            The City of Austin, a home-rule city, has the same general legal powers as ah
     home-rule cities under Texas law. The Texas Constitution gives to home-rule cities all
     powers of self-government not expressly denied by the legislature, but prohibits such cities
     from enforcing any legislation inconsistent with state laws or the state constitution. Tex
     const. art. XI. 8 5.

             You have not cited, and we sre not aware of, any Texas statute which preempts
     the subject of this proposed ordinance. We note, however, that certain federal statutes or
     regulations, such as those propounded by the Federal Railroad Administration under the
     authority of the Federal Railroad Safety Act of 1970,45 USC. 5 431(a), would preempt
     such an ordinance to the extent of their applicabiity.

             Apart from questions of home-rule power or preemption, the only other sorts of
     challenge we can imagine to such an ordinance would be takings clause, equal protection,
     or substantive due process arguments of the kind offered in analogous cases involving
     laws prohibiting the use of the polygraph or the psychological stress evaluator. See, e.g..
     State v. Communiy Distributors, Inc., 317 A.Zd. 697 (N.J. 1974); Norhdnvr v. ROS, 429
     N.Y.S.Zd 844 (Sup. Ct. 1980); Gawel v. Two Plus Two, Inc., 309 N.W.Zd 746 (Minn.
     1981). However, we note that courts have held such constitutional challenges to
     economic regulation in disfavor at least since the mid-l 930’s. See, e.g., United Stores v.
     &rolene Products Co., 304 U.S. 144 (1938); Williamson v. Lee Opiical Co., 348 U.S.
     483 (1955). As the Minnesota Supreme Court pointed out in Gcnuel, “The standard of
     review applicable to an economic regulation under the qual protection clause is the
     ‘familiar “rational basis” test.‘” 309 N.W.Zd at 747. The protection of the privacy of
     residents who are also “employees” is, we believe, a sufficient rationa! basis for an



                                               p. 1222
Honorable Fred Hill - Page 2               (DM-236)




ordinance of the sort about which you inquire.* Cf. Sfufe v. Commsmi~Distribu@rs, 3 17
A.2d 697 (NJ. 1974).

        Accordingly,we conclude that a home-rule city is not precluded as a matter of law
kom adopting an ordinance prohibiting random drug testing by private employers within
the city. However, .we.cautionthat possiile legal challenges to such an ordknce might
bebroughsundaabroadrangtofparticularfactpanans,upon~~wecarmot
epedate in the opinion process.



                Ahomb~ecityiswtprecludcdyamanaofliw~
            adopting an ordinance prohiiting random drug testing by private
            employers within the city.




                                                       DAN      MORALES
                                                       Attorney General of Texan

WILL PRYOR
FiiASk3tMtAttO~Gcnenl



MARYKELLER
Deputy Attomey Gend       for Litigation

RENEAHIclc!?
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Jim Tourtelott
ApsistrratAttO~GUlClTd




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