Hon. Jesse James                  Opinion No. V-       1291
State Treasurer
Treasury   Department             Re:   Legality of accepting from State
Austin, Texas                           employees    voluntary non-sub-
                                        versive  oaths which contain all
                                        of the provisions   mentioned in
                                        the general appropriation    bill
Dear    Sir:                            rider.

               Your request   for an opinion   reads    as follows:

              “Nith reference    to your opinion concern-
       ing the retrospective    portion of the non-subversive
       oath rider in the general appropriation     bill, it is
       my understanding     that this simply holds that such
       part of the oath cannot be required as a prerequi-
       site to payment of salaries     because it was improp-
       erly included in a general appropriation     bill instead
       of a general statute.

               “I do not understand that you have ruled that
       the entire oath or any part thereof would be uncon-
       stitutional in a general law. Therefore,    I am won-
       dering if it would not be proper and legal for me to
       accept voluntary oa-ths exactly as written in the
       rider if I deem that as necessary    information as to
       my employees.                                                  _>

              “Personally  I want to sign the oath that I do
       not now and have never belonged to any subversive
       gr’oup and I would like to have the same informa-
       tion from the employees of my department.        I am
       sure none of them have ever belonged to any such
       groups and that all would voluntarily    sign the en-
       tire oath. I understand that is the procedure which
       was followed in your department     prior to the writ-
       ing of your opinion on the subject.

              “Is there anything to prohibit us as depart-
       ment heads from gaining this information      from
       our employees    voluntarily and considering   such in-
       formation in deciding what employees      we desire to
       retain in State employment?”
Hon. Jesse       James,   page 2    (V-1291)




              You have interpreted     our Opinion No. V-1263       (1951) cor-
rectly.    The retrospective    portion of the “Non-Subversive         Oath”
required by the general appropriation        bill for the biennium end-
ing August 31, 1953 (Art. VI, Sec. 1, H.B. 426, Acts 52nd Leg.,
R.S. 1951, ch. 499, p0 1228) was held to be invalid because it was
a subject of general legislation      and therefore could not be con-
stitutionally   included within a general appropriation       bill.   We
held that the retrospective     portion of the oath cannot be required
as a prerequisite     to payment of State salaries,     since it was im-
properly included in a general appropriation         bill.  We did not
pass upon the question of whether the retrospective          portion of
the oath could have been required in a gqneral statute nor wheth-
er such oaths may be obtained by heads of the State departments
as an administrative      matter in determining     the background,     loy-
alty, and character     of employees    and applicants for employment.

             If you deem the information      contained in the full oath
as desirable    and necessary    information    as to your employees,     we
know of no reason why the complete oath may not be accepted on
a voluntary basis.     Your office, our office, the Governor’s       office,
and many of the other departments         of the State government     ob-
tained execution of the complete oath by all employees           prior to
our Opinion No. V-1263.       As an administrative     matter, this of-
fice will continue to seek the entire information        contained in the
 “Non-Subversive     Oath,” as written by ,the Legislature     and accept
voluntary execution thereof in’order        to obtain full knowledge of
the background and loyalty of future applicants for employment.
Needless   to say, there his no reason why the heads of depart-
ments of the State government        may not consider     such informa-
tion in deciding whether a person will be a proper and loyal em-
ployee.

           Our State officers   are required to take an oath to up-
hold and defend the Constitution    and laws of the United States
and of the State of Texas.    A portion of that oath contained in
Article XVI, Section 1, of the Texas Constitution    reads as fol-
lows:

             ” ‘I                      , do solemnly    swear (or
     affirm), hat I will faithfully execute the duties of the
     office of                         of ,the State of Texas,
     and will to the best of my ability‘preserve.      protect,
     and defend the Constitution and laws of the United
     States and of this State; . . .“”

                In the discharge  of our duties in accordance   with the
above   oath,     State officers are entitled to have employees   who will
    c
.



        Hon.    Jesse   James,   page 3   (V-1291)




        assist them in preserving,   protecting,and    defending the Constitu-
        tion and laws of the State and Nation, and they have the right to em-
        ploy only those persons who will so assist them. in the discharge
        of their duties and the keeping:of their.oat@.     There are available
        for State empIoyment   so many citizens of unquestioned 1oyaIty
        that there is no reason to risk the performance       of State jobs in
        the hands of anyone whose loyalty is questionable       because of
        having knowingly and intentionally    participated   in a subversive
        organization.

                    Therefore,   it is our opinion that it is entirely proper
        for you to obtain and consider the information        contained in the
        complete text of the “Non-Subversive         Oath” the same as any
        other information    concerning. the character,     background,   and
        loyalty of your employees       and applicants for employment      in or-
        der to be certain that you will have proper assistance         from your
        employees    in discharging    the duties of your office in accordance
        with your Constitutional     oath of office.

                                    SUMMARY

                      The head of a State department may accept
               and consider the complete   “Non-Subversive     Oath”
               contained in the general appropriation   bill for the
               biennium ending August 31, 1953 (Art. VI, Sec. 1,
               H.B. 426, Acts 52nd Leg., R.S 1951., ch- 499, p.
               1228) on a voluntary basis as an administrative
               procedure   in determining the background,    char-
               acter, and loyalty of his employees.

                      Every State officer is entitled to consider
               information  concerning previous membership        in
               subversive  organizations   in determining  whether
               an employee can properly assist him in faithfully
               executing the duties of his office and in discharg-
               ing his Constitutional  oath “to preserve,  protect
               and defend the Constitution and laws of the United
               States and of this State.”   Article XVI. Section 1.
               Texas Constitution.

                                                Yours    very    truly,

                                                 PRICE DANIEL
        APPROVED:                               Attorney General

        Charles D. Mathews
        First Assistant

        Price Daniel
        Attorney General                             Executive    Assistant
