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