                 THEA~TORNE~GENERAT~
                                    OF    TEXAS
                             Au-.         TEXAN            78711



                                         August      30,    1974


The Honorable Jim Clark                                     Opinion No.    H-   389
Chairman,  House Committe on Labor
P. 0. Box 2910, Capitol Station                             Re: Validity of Art. 4528c,
Austin, Texas   78767                                       $ lOA, V. T. C. S., as it
                                                            relates to LVNs.

Dear Representative        Clark:

       you have asked &&her     Article            45~284; $lOA.       V.. T. C. S., prohibiting
the membership  of licepied vocational            nurses’ (LVNs)       in organizations
either recognizing   the right ,to strike or permitting organized work stoppages,
violates any provision of the Constitution of the State of Texas or the
Conqtitution of the United Stat,es.

       Article    4528~.    $ lOA,   V. T., C. S.,    provjdes     that:

                 It ‘shall be unlawful for any individual who has
                 been licensed as a Licensed Vocational Nurse
                 to be a member of any group, organization,
                 association,     or union which advocates or~secog-
                 nizes the right to strike,     or which permits its
                 members      to engage in an organized work stoppage.
                 Any person who has been licensed as a Licensed
                 Vocational Nurse and who violates this Section of
                 this Act, shall have his or her license suspended
                 for a period of two (2) years,     and the Board shall
                 thereupon enter an order to such effect upon its
                  minutes.     It shall be incumbent upon the individual
                 after the expiration of two (2) years to apply for
                 a new license as a Licensed Vocational Nurse
                  should such individual desire to engage in such
                 .work as herein authorized by this Act.       It is the




                                            p. ~1823
The Honorable     Jim Clark     page 2     (H-389)




                 declared public policy of this State that a person
                 who requires nursing care should be protected from
                 organized work stoppages of any kind or character.
                 (Emphasis   supplied).

        The statute clearly intends to penalize mere membership      in a
labor organization  which recognizes  the right to strike. Its provisions
are in contrast to other Texas statutes which declare the public policy
of the State to be:

                 . . . the right of persons    to work shall not be
                 denied or abridged on account of membership
                 or non-membership       in any labor union or labor
                 organization  and that in the exercise    of su&h]iights
                 all per’sons shall be free from’thrdats.     force,
                 intimidation
                       ,.      or  coercion.   ” Art. 5154g.  8 1, Vi T.‘C. 5;.

         The state’s policy is not the same for public employei~s.‘.’ Article
5154~. $4, V. T. C.S.      Limits are placed on the authority of public officers
to enter into a collective   bargaining contract.        Article-515&“$1.        State
employees   may forfeit the privilege of presenting their grievances             to the
government   through a representative        if the right to strike is claimed by
their representative    organization.Article       5154q   § 6; Amalgamated      Transit
Union, Local Div. ‘1338 v.‘~ Dallas gublic~ Transit Board.--430           S. W. 2d 107,
119 (Tex. Civ. Appr, Dallas       1968, writ,ief.~ n. r~.e.:, certr den. 396 U.S.
838); Dallas Independent School District v. American              Federation   of State,
County and Municipal Employees,         Local Union No. 1442, 330 S. W. 2d
702 (Tex. Civ. App.,      Dallas, 1959, writ ref. n. r. e.).

         The Texas Supreme Court construed Article 5154c, in Lunsford V.
City of Bryan,   297 S. W. 2d 115,117 (Tax. 1957). and determined   that the
Legislature  intended to protect “the right of membership   in a union as
well as the right of nonmembership.    ”

        The U.S. Supreme       Court has, had before it a state statute which
permitted the prosecution      of a public employee for membership      in an




                                         p. ,1824
The Honorable        Jim Clark     page 3         (H-389)




organization”‘known”    to have unlawful purposes and objectives.     Elfbrandt
v. Russell,    384 U.S. 11 (1966).   The statute was declared unconstitutional
as violative of the freedom of association     protected by the First Amend-
ment through the Due Process       Clause of the 14th Amendment.

                          Those who join an organization      but do not share
                     its unlawful purposes and who do not participate in its
                     unlawful activities    surely pose no threat,   either as
                     citizens or as public employees.       Laws such as this
                     which are not restricted     in scope to ,those who join
                     with the ‘specific   intent’ to further illegal action
                     impose,   in effect, a conclusive    presumption    that the
                     member    shares the unlawful aims of the organization.        . .

                         ,A law which applies. to membership      without the
                     ‘specific  intent’ to further the illegal aims of the
                     organization   infringes unnecessarily    on protected
                     freedoms.     It rests on the doctrine of ‘guilt by
                     association’   which has no place here.     384 U.S. at
                     17, 19.

          The     Seventh Circuit has held, in part on the authority of Elfbrandt,
supra,    that   allegations   of discrimination    by a school ,district against ,a
teacher    for    union associations     state a claim under the Constitution and,
laws of    the   United States for purposes of federal court jurisdiction        under
42 U.S.    C.    $1983.   McLaughlin     v. Tilendis,  398 F. 2d 287 (7th Cir.,    1968).

                     . . . Even if this record disclosed    that the union
                     was connected with unlawful activity,     the bare
                     fact [of] that ,membership   does not justify charging
                    .members     with their organization’b   misdeeds.   398
                     F. 2d at 289.

          The Fifth Circuit has agreed with McLaughlin,       supra, reasoning that
illegal intent is necessary   to justify the State’s interference   with a person’s
associational   freedoms.   Orr v. Thorpe, 427 F. 2d 1129 (5th Cir.,      1970).




                                            ,p.   1825
The Honorable   Jim Clark     page 4        (H-389)




Similar results have been reached by the Tenth Circuit,        Lontine v.
VanCleave,    483 F. 2d 966 (10th Cir.,    1973); by the Eighth Circuit,
American    Federation   of State, County, and Municipal Employees       v.
Woodward,     406 F. 2d 137 (8th Cir. 1969).     And see, Thomas v. Collins,
325 U.S.   516 (1945); Tischler    v. Board of Education,   323 N. Y. S. 2d
508 (App. Div. ,. 1971).   Cf.,   United Federation of Postal  Clerks v. Blount,
325 F. Supp. 879 (D. D. C., 1971), aff’d. on appeal, 404 U. S. 802 (1971).

         Under $lOA an LVN’s license must be suspended for two years if
he or she becomes a member in a prohibited organization.            The penalty
is tiitkr limited to members     who strike,   nor to membership     accompanied
by a specific intent to participate  in unlawful activities.    Therefore   we
believe that, .underthe above discussed      authorities,  $ 10A. prohibiting
mere membership      in a labor union which recognizes      the right to strike
would be held to infringe unnecessarily      onfneedims   protected by the
Due Process    Clause of the 14th Amendment.

                                 SUMMARY

                    Section 1OA of Article 4528c,     V. T. C. S.,      prohibiting mere
                membership    by LVNs in organizations      which       recognize
                the right to strike,  is unconstitutional   since      it infringes
                unnecessarily   on the freedom of association          protected
                by the First Amendment      to the United States        Constitution.

                                                      Very   truly yours,




                                                      Attorney   General    of Texas




                                       p.     1826
The Honorable   Jim Clark   page 5    (H-389)




DAVID M. KENDALL,       Chairman
Opinion Committee


lg




                                     p.   1827
