Mr. James H. Havey, Director     Opinion No. M- 946
Texas Industrial Commission
814 Sam Houston Building         Re:   Whether the Texas Industrial
Austin, Texas                          Commission may employ on a
                                       full-time basis persons who
                                       are and intend to remain
                                       citizens of the Country of
                                       Mexico for its Mexico City
Dear Mr.   Havey:                      Office.

     In your letter requesting an opinion from this office,
you submit the following facts:

                "As you are aware the Texas Industrial
           Commission has plans for the opening of an
           extension office in Mexico City. Your re-
           cent opinion M-909, dated 20 July, 1971 rec-
           ognized legislative intention and authorized
           the payment of employee or employees salaries
           who were working and residing in Mexico.
                  I,
                   . . . for the office to obtain its
            peak effectiveness and to obtain the maxi-
            mum from the office it will be necessary
            to hire a Mexican-National, on a permanent
            basis for continuity purposes, who is com-
            pletely bi-lingual both in reading and writ-
            ing."

     With regard to these facts you question whether the
Texas Industrial Commission may employ on a full-time basis
persons who are and intend to remain citizens of the coun-
try of Mexico for its Mexico City office.

     Section 2, Article III of Senate Bill No. 11, Regular
Session, as amended by Senate Bill No. 7, First Called Ses-
sion, Acts 62nd Legislature, 1971 (General Appropriation
Act) provides as follows:




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Mr. James H. Havey, page 2.     (M-946)



               "EXECUTIVE AND ADMINISTRATIVE DEPART-
                MENT AND AGENCIES SPECIAL PROVISIONS

               "Sec. 2. EMPLOYMENT OF ALIENS. No money
          shall be paid out of any appropriation made in
          this Article for personal services for a longer
          period than ninety (90) days to any person who
          is not a citizen of the United States unless
          the person has begun naturalization proceedings."

     In Attorney General's Opinion M-909   (1971) this office
held that:

                "Subsections (a), (b), and (e) of Section
          4, Article 6144(e), Vernon'5 Civil Statutes,
          grants to the Industrial Commission authority
          to open an extension office in Mexico City,
          Mexico, D.F. and to pay the salaries of em-
          ployees who are working and residing in Mexico."

     We believe that when the language of the above quoted
Section of the appropriation bill is read in pari materia
with the caption, which in this instance is also a part of
the legislative enactment, it is evident that the Section
was intended to apply to the employment of aliens and that
the only aliens not intended to be reached by the enactment
are aliens who have begun naturalization proceedings.   We
do not believe the Section as read in pari materia with its
caption was directed to the employment of persons neither
aliens nor citizens of the United States. Employment of
a Mexican national in Mexico is not employment of an alien.
When the State of Texas undertakes a proprietary function
in a foreign jurisdiction, it places itself in the position
of any other alien employer doing business in the foreign
country, and because the term alien is by definition rela-
tive to the location of use of the term, it seems clear
thatunder the circumstances posed in your opinion request,
the State of Texas and not the Mexican National is the
alien involved. The employer is the foreigner, not the
employee.  The exception in favor of persons who have be-
gun naturalization proceedings is indicative that aliens
in the United States are the persons to whom the ban is
directed. Whether the Legislature could enact a valid stat-
ute providing that the State was prohibited from employing
foreign nationals in foreign countries is a question not
reached in this opinion.   Serious questions concerning


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Mr. James H. Havey, page 3     (M-946)



foreign relations, a field in which the Federal government
has exclusive jurisdiction, could be raised by such an en-
actment. cf. peon v. Miller, 234 S.W. 573 (Tex.Civ.App.
1921, no writ); Purdy t Fitzpatrick v. State, 71 Cal.Zd
566, 456 P.2d 645 (Cal.Supp. 1969).

     Even more compelling, Section 2 of Article III of
Senate Bill No. 11, an unreasonable and invidious discrim-
ination on the basis of alienage, violates the Fourteenth
Amendment of the Federal Constitution.   See please, Antieau
Modern Cons~titutional Law, Volume 1, Section 8:66.

     It seems very clear that an alien, within the juris-
diction of the Courts of the United States and the State
of Texas, can successfully urge that the alienage dis-
crimination contained in the amroDriations
                               --~~ -         bill is nat-
ently unconstitutional, relying on such holdings as,‘Graham
v. Richardson,        U.S.         29 L.Ed.2d 534,        s.ct.
       (1971) h-g      discs:tion      in welfare payments
may not be b&ed on alienage; Takahashi v. Fish and Game
Commission, 334 U.S. 410 (1948) holding that a commercial
fishina license mav not be withheld because of alienaae:
       .e   ~~~~

and, Truax v. Raich, 239 U.S. 33 (19151, holding that-a-
State may not validly enact a law which requires that aliens
be discriminated against by employers within the state.
While there is some aged authority that a state may dis-
criminate on the basis of alienage in employing people on
public works projects and in areas where there might exist
reasonable grounds for the discrimination, the cited cases
make it clear that any such discrimination is highly sus-
pect and must be shown to be limited in effect to overriding
considerations of equal dignity with the right being denied.
The lack of any such limitation in the provision of the
appropriations bill above quoted is constitutionally fatal.
Indeed, under Graham v. Richardson, supra, there are grave
auestions concernins the "contemcorarv vitalitv of the
special public interest doctrine:"    Nor have contemporary
state courts hesitated to strike down alienage restric-
tions even on state public works projects.    See please,
Purdy & Fitzpatrick v. State, supra, holding that a state
law with a blanket prohibition against aliens in state em-
ployment interferes-with the comprehensive federal legis-
lative scheme enacted for aliens, in addition to amounting
to a violation of the Fourteenth Amendment to the Federal
Constitution.



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Mr. James H. Havey, page 4.      (M-946)



     We do not believe there is any valid reason shown by
the alienage restriction quoted above to support any argu-
ment that even though invalid as to aliens within the United
States, the restriction is nevertheless valid as applied
to foreign nationals in their own country, and we there-
fore render our opinion that the quoted provision is, on
its face, unconstitutional in toto. We express no opinion
at this time on whether a bill could be drawn imposing dia-
criminations outside the jurisdiction of the United States
which cannot be imposed within the United States.  In our
opinion, serious questions exist concerning whether a state
could do such a thing.

                         SUMMARY
                         -------
                 For the reasons stated above, you are
            advised that Section 2, Article III of the
            General Appropriations Act, does not pro-
            hibit the Texas Industrial Commission from
            hiring a Mexican National to work in Mexico
            on a full-time basis.  Such Section violates
            the Fourteenth Amendment of the Federal Con-
            stitution and is unconstitutional.

                                           yours,




Prepared by Samuel D. McDaniel
Assistant Attorney General

APPROVED:    OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Ivan William5
William Craig
Harold Kennedy
Bob Lattimore
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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