December 27, 1990
Honorable Jimmie McCullough Opinion No. JR-1274
County and District Attorney
82nd Judicial District Re: Authority of a sheriff to
Robertson County require his employees to sub-
P. 0. BOX 409 mit to random drug testing
Franklin, Texas 77056 (RQ-1952)
Dear Mr. McCullough:
You have requested our opinion regarding the authority
of a sheriff's department to require its deputies and
jailers to submit to random drug testing by means of urine
samples.
Drug testing of governmental employees and others
similarly situated has been the subject of frequent litiga-
tion in the federal courts in recent years, and no consensus
has yet emerged on the permissible limitations which a
governmental body may place on its employees' Fourth Amend-
ment protection against unreasonable searches and seizures.
In Skinner v. Railwav Labor Executives' A 'n 109 S.Ct.
1402 (1989), the Supreme Court, in a 7-2 d&on upheld
the Federal Railroad Administration regulations {hat re-
guired blood and urine tests for certain railroad employees
following major train accidents or other "incidents.". In
N atio a e su V b, 109 S.Ct.
1384 (1989), the Supreme Court, in a 5-4 decision, upheld
urine testing of employees applying for promotion to posi-
tions involving interdiction of illegal drugs or requiring
them to carry firearms. Neither of these Supreme Court
decisions involved the kind of random urine testing for
drugs about which you inquire. For purposes of this opin-
ion, we assume that Vandom" testing refers to urinalysis
that is not occasioned or triggered by any incident or
event, such as alleged criminal activity, an accident, or a
complaint filed by a member of the public that casts suspi-
cion on one or a group of deputy sheriffs or jailers.
The lower federal appellate courts have considered
random urine testing but are divided in their conclusions.
In Pennv v. Kennedy, 846 F.2d 1563 (6th Cir.), vacated, 862 -?
p. 6814
Honorable Jimmie McCullough - Page 2 (JM-1274)
F.2d 567 (6th Cir. 1988), the court of appeals for the sixth
circuit invalidated the city of Chattanooga's mandatory
urinalysis testing of police officers on a department-wide
basis without reasonable cause or suspicion of individuals.
By contrast, the court of appeals for the third circuit
upheld random drug testing of police officers in the Town-
ship of Washington, New Jersey. policeman's Benevoleng
A n fN V.Loll v. Town ShiD Of Washinaton
8t:'F.id FT3 "~:~~ Cir$19:8f) Likewise, the court oi
appeals for the first circuit, in eev . R ch 873 F.2d
1557 (1st Cir.), cert. denied, 110 U.S. 104 ;:98;; upheld
random drug testing by the Boston Police Departmen; of all
officers carrying firearms or participating in drug inter-
diction. See also mt 715 F.Supp. 832
(E.D. Mich. 1989); ; Al ce DeD'k, 706
F.Supp. 453 (E.D. La. 1988).
Although there seems to be a trend in the lower federal
appellate courts to approve random urine testing of police
officers, the Supreme Court has not yet upheld random
testing of any kind, and the narrowness of the margin which
the majority was able to muster in Van does not inspire
complete confidence that the Court will necessarily follow
the rulings in Townshio of Washinaton and Guinev. We ne'ed
not address the issue of random testing under the federal
Constitution, however, since we believe that the Texas
Constitution prohibits the practice.
(Tex. 1987), the Texas Supreme Court affirmed the right of
privacy under the Texas Constitution, as deriving, in-
ter aliB, from article I, section 9, which protects the
right of an individual to be 'secure . . . from all unrea-
sonable seizures or searches," the same prohibition as
appears in the Fourth Amendment to the federal Constitution.
The court, declaring that the Texas Constitution protects
onens personal privacy from unreasonable intrusion, held
that the right of privacy can
yield only when the government can demonstrate
that an intrusion is reasonably warranted for
the achievement of a compelling governmental
objective that can be achieved by no less
intrusive, more reasonable means.
Id. at 205.
p. 6815
Honorable Jimmie McCullough - Page 3 (JM-1274)
In They, the court said that a policy of the Department
of Mental Health and Mental Retardation which required
employees to submit to polygraph examinations in certain
instances1 was an unwarranted QOintrusionlland therefore
violative of the employee's right of privacy. The intru-
siveness of urine testing is of a somewhat different nature
from that of a polygraph examination, but in our opinion,
the former is at least as intrusive as the latter. The
chemical analysis of urine "can reveal a host of private
medical facts about an employee, including whether she is
eDileDtic, Dreqnant. or diabetic." Skinney, SuDra, at 1413.
l%rthermore; the very
process of collecting the sample to be tested,
which may in some cases involve visual or
aural monitoring of the act of urination,
itself implicates privacy interests.
& In concluding that urine testing "intrudes upon expec-
tations of privacy that society has long recognized," the
Court quoted the court of appeals for the fifth circuit in
Rational Treasurv EmDlOVeeS Union v. Von Raab, 816 F.2d 170,
175 (5th Cir. 1987):
There are few activities in our society more
personal or private than the passing of urine.
Most people describe it by euphemisms if they
talk about it at all. It is a function
traditionally performed without public obser-
vation: indeed, its performance in public is
generally prohibited by law as well as social
custom.
Skinner, SuDrg, at 1413.
1. Under the written policy, an employee could be
dismissed for refusing to submit to a polygraph examination
only if there existed reasonable cause to believe that (1)
an incident of patient abuse or illegal on-campus activity
had occurred; (2) an employee had violated departmental
rules in connection therewith; and (3) all other reasonable
investigatory alternatives had been exhausted including,
at a minimum, an interview with the employee. In addi-
tion, there were restrictions on the administration of the
examination itself.
p. 6816
Honorable Jimmie McCullough - Page 4 (JM-1274)
We believe that the Texas Supreme Court would likewise
conclude that the collection and testing of urine implicates
privacy interests protected by the Texas Constitution, an.d
that as a result, a governmental body, in order to require
it, must pass the two-pronged test of m: it must demon-
strate 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.
In w, the court found that the department's objec-
tives were not sufficiently compelling to warrant the
intrusion. The department's objectives m, however, quite
specific:
The polygraph testing was initiated to assist
administrators in investigations of four types
of situations: patient abuse or neglect:
conduct endangering the health or safety of
patients or other employees: theft or other
criminal activity; use of drugs or alcohol.
TSEU, suorg, at 206.
In the situation you pose, no objectives whatsoever
have been stated. Since the polygraph examination in
m was struck down even when the goals of testing were
specific, we believe that, at a minimum, a sheriff's depart-
ment must have specific demonstrable goals that cannot be
achieved by less intrusive, more reasonable means before it
can constitutionally require urine testing. As the test you
inquire about does not comply with either prong of the TSEU
test, neither would it comply with article I, section 9, of
the Texas Constitution.
SUMnARy
The Texas constitutional guarantee of
privacy would be violated by random urine
testing of deputy sheriffs and jailers for
the presence of drugs where no compelling
governmental objective for the testing has
been shown.
JIM MAT.TOX -
Attorney General of Texas
p. 6817
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Honorable Jimmie McCullough - Page 5 (JM-1274)
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MARY KELLER
First Assistant Attorney General
I.m MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
Pa 6818