                         QBffice of ttp Bttornep &neral
                                  Mate of Qfexas
DAN MORALES                             May 13,1992
 ATTORNEY
      GESERAL


     Mr. Ray Farabee                    Opinion No. DM-121
     Vice Chancellor
     The University of Texas            Re: Whether proposed drug testing policies
     Office of General Counsel          submitted by the City of League City and the
     201 West 7th Street                University of Texas are constitutional
     Austin, Texas 78701                (RQ-115, RQ-260)

     Honorable James F. Hury, Jr.
     ChtiaIl
     Ways and Means Committee
     Texas House of Representatives
     P. 0. Box 2910
     Austin, Texas 787652910

     Dear Gentlemen:

            You have each submitted proposed drug testing policies. The policies
     submitted by Mr. Farabee, on behalf of the Board of Regents of the University of
     Texas System, would be applicable to certain applicants and employees of the
     University of Texas Health Center at Tyler and to faculty and resident physicians at
     the University of Texas Medical Branch at Galveston; the one submitted by
     Representative Hury would be applicable to employees of the City of League City.
     You ask about the constitutionality of the respective policies.

            We note at the outset that attorney general opinions are addressed to specific
     legal questions. It is outside the scope of. the opinion process to review the lengthy
     and detailed policies you have submitted. Also, with the exception of a portion of
     the League City policy, discussed below, that we believe to be constitutionally
     invalid as a matter of law, determinations in regard to the legality of the particular
     drug testing policies or their application will involve questions of fact. See Hum011
     v. Thornburgh, 878 F.2d 484, 490 n.9 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 865
     (1990) (noting that the “Supreme Court has quite clearly eschewed an approach to
     drug testing based on bright lines and clean analytic principles, and has instead
     mandated case-by-case balancing of individual and societal interests”). We cannot



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Honorable James F. Hury, Jr.




resolve questions of fact in the opinion process. We will, therefore, generally limit
this opinion to providing guidance by reference to applicable law. We will also
address the questions you both raise about the validity of a prior opinion of this
office on the legality of drug testing, Attorney General Opinion JM-1274 (1990).

       The policies submitted provide for testing by urinalysis. Urinalysis
compelled by the government is a search for purposes of the Fourth Amendment of
the United States Constitution. National Treawy Employees Union v. Von Raab.
489 U.S. 656, 665 (1989); Skinner v. RailwayLabor EKcurives Ash. 489 U.S. 602,
617 (1989). A warrant or probable cause, however. is not necessarily required for
employee drug testing. Skinner, 489 U.S. at 619. Rather, “where a Fourth
Amendment intrusion serves special governmental needs, beyond the normal need
for law enforcement, it is necessary to balance the individual’s privacy expectations
against the Government’s interests to determine whether it is impractical to require
a warrant or some level of individualized suspicion in the particular context.” Von
Raab, 489 U.S. at 665-66.

       Before a governmental body adopts an employee drug testing policy, it must
fist consider whether testing “serves special governmental needs, beyond the
normal need for law enforcement.” Id. at 665.1 Assuming that it does, the
governmental body must then determine whether its interests in testing its
employees are sufficient to outweigh the privacy expectations of its employees. In
making this determination, it must consider the nature ~of the employees’ duties,
taking into account that public employment alone is not a sufficient basis for
mandatory drug testing. Hannon, 878 F.2d at 490. It must also consider the extent
to which the testing will intrude upon the privacy interests of its employees. Von
Raub, 489 U.S. at 66566.2 The governing board of a governmental body must make



        t&e oko Bhwtein v. Shinw, 908 F.2d 4551,455(9th Cir. 1990), EULdenied, 111 S. Ca. 954
(1991) (m        wbcthcr drug testing policy scrvcd special needs before balancing govclnment’s
iatercatsagaid the employees’privacyinter&s); AmericanFedk of Gov’l Emplops Y. Sk&w, 885
FZ!d884, 889 (DC. Cir. l989). wt. denied, 110 S. Ct. MO (1990) (same); Nufionul F&n of Fed
Emp/m Y.Qlmry, 884 F2d 6@3,608(D.C. Cir.19S9),cni. denied, 110 S. Ct. 864 (1990) (same).

         %o makiag this determination,a gownmental entity might want to consider, for example, the
exteot to which it will or will not be able to titbhold test results and related informationborn general
public disc&we. See Open Records Decision No. 594 (1991) (city employee drug testing ordinance
provisioos cannot operate to exempt drug testing information from required public disclosure under
the Texas Open RecordsAd, V.T.C.S. article6252-17a).




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Honorable James F. Hury, Jr.




those determinations in the first instance, subject to court review in the event its
policy is challenged.

        As the United States Court of Appeals for the District of Columbia has
noted, however, public employment alone is “not a sufficient predicate for
mandatory urinalysis.” Harmon, 878 F.2d at 490; see aLso National Fed’n of Fed
Employees v. Chewy, 884 F.2d 603.613 (D.C. Cir. 1989). cert. denied, 110 S. Ct. 864
(1990). A “clear, direct nexus [must exist] between the nature of the employee’s
duty and the nature of the feared violation.” Harmon, 878 F.2d at 490 (citing Von
J&rob). In Von Raab, for example, a case in which the Supreme Court upheld drug
testing of customs service employees seeking promotions to positions directly
involving the interdiction of illegal drugs or requiring the incumbent to carry a
firearm, there was a clear nexus between the employees’ prospective duties and the
risk that “they might endanger the integrity of our Nation’s borders or the life of the
citizenry.” Von Ruub, 489 U.S. at 679.3

        We turn now to the particular policies at issue here. Representative Hury
submits the proposed drug testing policy of the City of League~City (hereinafter the
“city policy”) and states that the city “is concerned about the effects of Attorney
General Opinion JM-1274 on the implementation of such a policy.” Attorney
General Opinion JM-1274. which we will discuss more fully below, concluded that a
sheriff department’s “random drug testing” of deputy sheriffs and jailers by urinalysis
would violate constitutional privacy protections where no compelling governmental
objectives, or “specific demonstrable goals,”were shown that could not “be achieved
by less intrusive, more reasonable means.” Attorney General Opinion JM-1274 at 4.
We understand Representative Hury’s request, therefore, to put at issue the
“random” testing provisions of the city policy.



        3See a&o Nodonal Tw.wy Employes Union Y. Yauter, 918 F.2d 96& 977 (D.C. Cir. 1990)
(government’s interest in ensuring safety just&d random urinalysis drag testing of agency motor
vehicle operators); B&stein, Ws F.2d at 456 (upholdii random drug testing of airline employees
because governmenthad a sufficient intereatin preventingdrug use by persons holding safety-sensitive
positions in the aviationindustry);Tuylor Y. O’Gmdy, 888 F2d 1189.1198 (7th CL. 1989) (wrre~ions
department’sinter&s in avoiding dangers of drug impaired work force and drag smuggling jutified
wmpehg annual urinalysisof employeea who came into rqular contact witk prisoners); Kap v.
ClclibomeCountyHosp., 763 F. Supp. l362,l369 (S.D. Miss. 1991) (hospital’sinterestin ensuring safety
of patients justitied mandatory drug testing of employee involved in hands-on patient care). See
geneml& Haas, The Supreme Cow? Enters the Var Wars”: Dmg Ted& Public Employees, and the
Fourth Amendment, 94 DICK.L. REV.305 (1990).




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Honorable James F. Hury. Jr.




        Article IV, section 4.01 of the city policy provides that “[t]he City’s Director
of Administrative Services may require that a test for the presence of drugs be
conducted.. . on a random.. . basis.” Article X, section 10.01 makes a similar
provision with respect to city employees generally, and article X, section 10.02
provides that “[elmployees in safety sensitive jobs may be subject to random. . . drug
testing on a routine basis, as determined by the Director of Administrative Services.”

        We think a court would find that the city policy’s provisions for random
testing of all city employees, as a matter of law. run afoul of Fourth Amendment
protections against unreasonable searches. As discussed above, the federal courts
have indicated that public employment alone is not a sufficient predicate for testing
not based on individualized suspicion, but that a suffkient nexus must exist between
the particular employee’s duties and the feared consequences of the employee’s use
of drugs. See Von Raab, 489 U.S. 656; Harmon, 878 F.2d 484, Notional Federation of
Federal Employees, 884 F.2d 603. Determination, on the other hand, of the
constitutionality of the city policy’s provisions for random testing of employees in
“safety sensitive” positions would, we thii require a full fact-finding with regard to
factors relevant to a constitutional balancing test, such as the nature of those “safety
sensitive” positions and the city’s interest in testing those employed in such positions,
and those employees’“privacy expectations.”

        The proposed drug testing policy of the University of Texas Health Science
Center at Tyler (hereinafter the “center policy”) provides for the testing of those
applying for or employed in certain “safety sensitive” and “health care positions” -- to
wit, those whose duties involve 1) “the diagnosis, treatment, or care of patients”;
2) “the operation of equipment or the performance of a test or analysis that is
utilized in the diagnosis and treatment of patients”; 3) “access to controlled
substances”; 4) “access to cash”, or 5) “the lawful use or possession of a firearm.”
Under the center policy, testing may be required of employees in the above
categories after they have been involved in certain on-the-job accidents, observed
possessing or using alcohol or illegal drugs on the job, or observed by a supervisor
trained in such matters as exhibiting on the job the appearance or behavior of one
under the influence of illegal drugs or alcohol. Also, the above categories of
employees, except those having “access to cash,” may be tested on a random basis to
be “determined by the University.” All applicants tentatively accepted for
employment in the above categories are to be tested as a condition of employment.
Center policy 89 I - III.




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Honorable James F. Hury, Jr.




       The University of Texas System also asks about the legality of pre-
employment drug testing for faculty and resident physicians whom the University of
Texas Medical Branch at Galveston (hereinafter “UTMBG”) requires to perform
medical work at the Shriners Burns Institute of Galveston (hereinafter “SBI”). SBI,
a private entity providing care to severely burned children, has adopted a policy
providing for drug testing new employees including the UTMBG faculty and
resident physicians working at SBI. Under these circumstances, it is clear that
UTMBG’s requiring faculty and resident physicians to work at SBI would constitute
government-compelled testing and would therefore be subject to constitutional
protections. Thus, in answer to your question regarding the SBI policy, it would not
be legally permissible for UTMBG to require assignments and rotations in SBI
unless SBI’s policy passes constitutional muster.

        We note first that on the facts presented in Von Raab, the court upheld
testing of certain customs service employees applying for .transfer to positions whose
duties involved the carrying of firearms or access to controlled substances. National
Federation of Federal Emplqees upheld random testing of Army civilian police and
guards carrying firearms. Both these courts reached their decisions, however, only
after considering a variety of other fact-bound matters such as the employees’
expectations of privacy or whether the employees’ duties were carried out in
traditional office environments where they could be monitored in a more routine
manner.

        More pertinent to the testing of medical personnel, Kemp v. Cluibome
County Hosp., 763 F. Supp. 1362 (S.D. Miss. 1991), upheld mandatory testing of a
scrub technician whose duties involved “hands-on” patient care, including being
present and assisting during surgery. The court ventured to say that “any hospital
employee who is involved in direct, hands-on patient care occupies a safety sensitive
position” such that the government has a strong interest in guarding against such
employees being drug-impaired. 763 F. Supp. at 1368. The Kemp court again,
however, considered various other factual circumstances before concluding that the
testing in that case was constitutionally permissible, for example, that the employee
in question had a diminished expectation of privacy because she had undergone
routine physicals involving blood-testing and urinalysis as a condition of
employment and because she had received prior notice of the drug testing at issue
and signed a consent form. Accordingly, although certain of the categories of
employees made subject to testing under the University of Texas System policies
have been held to be constitutional by courts in other contexts, we think that
determination of the appropriateness of the categories established by these policies


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Mr. Ray Farabee - Page 6                   (DM-121)
Honorable James F. Hury, Jr.




would require fact-findings specific to conditions at the University of Texas Health
Center at Tyler, UTMBG, and SBI.

        Similarly, although it seems likely that applicant testing, as opposed to
employee testing, would be given somewhat greater rein by the courts, we are
unable to conclude here that the applicant testing provisions of the center policy, or
the pre-employment testing policies of SBI to which UTMBG faculty and residents
are subject, would withstand constitutional scrutiny as a matter of law. We believe
that a court would consider a range of essentially fact-bound matters, similar to
those factors discussed above with respect to employee testing, before reaching a
conclusion See Von Raab (testing of customs service employees applying for
transfer to certain job categories); Haas, The Supreme COUJTEnters the “lar Wad
Drug Testing,Public Employee-s,and the Fourth Amendment, 94 DICK. L REV. 305,
341-42 (1990).

        Finally, we turn to the question of the viability of Attorney General Opinion
JM-1274. In Attorney General Opinion JM-1274, this office concluded that a
sheriffs department’s “random drug testing” of deputy sheriffs and jailers by
urinalysis would violate privacy protections under the Texas Constitution.        The
opinion based its conclusion on Texas State Employees Union v. Texas Depk of
Mental Heahh & Mental Retaraktion, 746 S.W.2d 203 (Tex. 1987) (hereinafter
TSEU”). a case in which the Texas Supreme Court held that a state agency’s policy
of subjecting its employees to polygraph examinations violated privacy protections
under the state constitution. Under TSEU, to pass constitutional muster a
governmental body must demonstrate that 1) the intrusion is warranted to achieve a
compelling governmental objective; and 2) that objective cannot be achieved by less
intrusive, more reasonable means. Attorney General Opinion JM-1274 concluded
that a drug testing policy will not pass constitutional muster where the government
has shown no governmental objective to justify the intrusion into the privacy of its
employees.

       We believe that Attorney General Opinion JM-1274 correctly concluded that
the Texas Supreme Court would hold that the collection and testing of urine
implicates privacy interests protected by the Texas Constitution. Although no Texas

         %e Universityof Texas System has expressed concern as to the meaning of ‘random drug
testing” as d&cued in Attorney General Opinion m-l274 at 1. To dar@, a pre-employment or
employee policy that subjects all appicants for or employees in specik positions to drug testing
prowdurcs withoutexception would not be considered a “random’policy,




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Honorable James F. Hury, Jr.




court has addressed the constitutionality of a drug testing policy in a reported
opinion, we believe there is a strong likelihood that Texas courts will construe the
state constitution to place broader limitations on drug testing of public employees
than does the federal constitution. See ffeitman v. Texas, 815 S.W.2d 681 (Tex.
Crim. App. 1991) (suggesting that the protections of article I, section 9 of the Texas
Constitution may exceed those in the Fourth Amendment of the United States
Constitution); State of Tetas v. Morales, No. 3-91-195CV (Tex. App.--Austin, March
11, 1992, n.w.h.) (applying state constitutional privacy test from TSEU in striking
down state statute criminalixing certain consensual adult sexual behavior).

       Both requesters here have stated what they believe to be the governmental
objectives justifying the drug testing policies at issue.5 We do not opine as to
whether such objectives might be achieved by less intrusive means, as such a
determination necessarily involves resolution of facts. The governing boards that
intend to implement these policies, or the board of any governmental body
implementing a drug testing policy, should examine their respective policies in view
of both the federal and state constitutional standards discussed in this opinion. This
office recommends that any governmental body that implements a drug testing
policy make findings to support the conclusion that its governmental objectives
cannot be achieved by less intrusive means, bearing in mind that decisions regarding
the constitutionality of all drug testing policies may be challenged in court.




        %he League City policy statea that it is ‘designed to eliminate the use of drugs and alcohol
and their effe& ia the workplace, so as to better provide for tbc general health and safety of its
employees.’ City Policy 9 1.01. The Universityof Texas Health Center at Texas states that its interest
in tesbg certain categories of employees arisea from the ‘extraordinary safety hazard”posed by a
;dr~@xl        employee,” the danger of ‘impairmeat’of the ‘hospital’s integrity and the risk of
             .




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Mr. Ray Farabee - Page 8              (DM-121)
Honorable James F. Hury, Jr.




                               SUMMARY
             The determination whether a particular dmg testing policy
         is constitutional involves questions of fact and is therefore
         beyond the scope of an attorney general opinion. The governing
         board of a governmental body must make those determinations
         in the first instance, subject to court review in the event the
         policy is challenged.
                                                w@mdom                        k,



                                                  DAN      MORALES
                                                  Attorney General of Texas


WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Madeleine B. Johnson
Assistant Attorney General




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