August18, 1988
Rm MATTGX
A-NW GEXERAL
Honorable Allen Hightower Opinion Wo. JW-941
Chairman
Corrections Committee Re: Circumstances under
Texas House of Representatives which a state employee
P. 0. BOX 2910 may be discharged
Austin, Texas 78769 (RQ-1418)
Dear Representative Hightower:
you ask whether all state employees are employed "at
will." An "at will" employee serves at the will of the
employer and can be fired for any reason. Eastline & R. R.
. v. Scott, 10 S.W. 99 (Tax. 1888).
Under Texas law an employee hired for an unspecified
period of time is generally an "at will" employee. &g
Sabine Pilot Service. Inc. v. Hauck 687 S.W.Zd 733 (Tex.
1985). That general rule applies to'state employees as well
as private employees. Attorney General Opinion M-628
(1970). &!g &!Q Christian v. ltsmw& I 649 F.Supp. 1475
(S.D. Tex. 1986).
Despite that general rule, however, a particular state
employee may have a property interest in his employment
protected by the fourteenth amendment to the United States
Constitution. Whether a pa.rticular state employee has a
property interest in his job depends on whether there are
circumstances that give rise to a legitimate claim of
entitlement. Do rd of Reaents v. Roth 408 U.S. 564 (1972).
The source of suzh a claim can be a &ate statute, a .local
ordinance, a rule, or a mutually explicit understanding.
Perrv v. Sindermann, 408 U.S. 593, 601 (1972).
Some state employees are subject to statutes that
create property interests by providing that dismissal must
be for cause. &G, u, Gov't Code 5 411.007 (Department
of public Safety employees may be discharged only for "just
cause") . Other state employees are subject to statutes that
provide that the employees serve at will. m, .&&, Nat.
Res. Code 5 31.020: Batterton v. Texas General Land Off&G
783 F.2d 1220 (5th Cir. 1986), cert. denied, 107 S.Ct. 316:
p. 4733
Honorable Allen Hightower - Pago 2 (JM-941)
.
Batterton interpreted section 31.020 of the Natural
Resources Code as establishing "at will" status for employ-
ees of the General hand Office. 783 F.2d at 1222-23.
m also held that informal understandings and agency
customs could not give rise to a property interest in the
face of a statute Providing that employees serve at will.
When there is statute to the contrary, agency
regulations may also rise to property interests. For
example, university 'regulations #at provided that
instructor-counselor at Texas A&M
.. University
. could only i?:
dismissed for "adequate cause- gave rise to a property
interest. paae v. D&aune, 837 F.2d 233 (5th Cir. 1988).
sss aks Wvitt v. Universitv of Texa at El Pa Q 759 F.2d
1224 (5th Cir. 1985), cert. M, 4;6 U.S. 11:4'(1986).
In summary, there is a general rule that state
employees in Texas serve at will. To determine whether that
general rule applies to a particular employee, however, it
is necessary to examine relevant statutes and regulations
and to determine whether express or implied promises have
been made which limit the right of the state to terminate an
employee.
you should also be aware that the "at will" doctrine is
limited by doctrines and statutes that prohibit termination
of employment for certain reasons. For example, the state
may not discharge employees for exercising their right to
107 s.ct. 2891, 2896
may be entitled to
reinstatement if dismissed for exercising right of free
speech). im usi 42 U.S.C. S 2000e-2 (prohibiting
discrimination based on race, color, religion, sex, or
national origin): V.T.C.S. art. 5221k (Human Rights
Commission Act). Another example of a statute that limits
the "at will" doctrine is article 5154c, V.T.C.S., which
provides that no person shall be denied public employment
based on membership or nonmembership in a labor organiza-
tion. m m V.T.C.S. art. 625;-16a ("whistle blowePq
statute): Tex as
Mental Health and Mental Retardation, 746 g.W.2: fOz:ex.
1988): Attorney General Opinion JW-227 (1984).
SUMMARY
As a general rule, state employees serve
at will. A particular state employee mayI
however, have a property interest in his job.
Whether a particular state employee has a
p. 4734
Honorable Allen Hightower - Page 3 (JF+g41)
property interest in hie job depends on
whether his circumstances give rise to a leg-
itimate claim of entitlement. Also, various
statutes and decisions place limitations on
the "at will" doctrine by prohibiting
termination for specified reasons.
L-l b
Very truly yo ,
A
-i I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
mu MCCReARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk and Karen Gladney
Assistant Attorneys General
p. 4735