Untitled Texas Attorney General Opinion

TEIE A'ITORNEY
OF TEXAS
Aumruu. TEXAS 787U
JOHN L. ar-
A-- 0-u

July 30, 1975

The Honorable Oscar H. Mauzy Opinion No. H- 654
Chairman
Senate Education Committee Re: Constitutionality of
Senate Chambers article 4413(31),
State Capitol Building V. T. C. S., providing
Austin, Texas 78711 a durational require-
ment as a prerequisite
to obtaining a veterans
preference in state
Dear Senator Mausy: employment.

You have requested our opinion concerning the constitutionality of the
durational residency requirement of article 4413(31). V. T. C. S., which
grants a preference in public employment to veterans:

. . . who are and have been citizens of Texas
for not less than five (5) years preceding the
date of applicat>on in pursuance of this Act,
, . .
Under the 14th Amendment to the Federal Constitution one is a citizen
of the state of his domicile, that is, the state where he resides and intends
to remain indefinitely. Paudler v. Paudler, 185 F. Zd 901 (5th Cir. 1950),
cert. denied 341 U.S. 920 (1951). Thus article 4413(31) would exclude
from the preference those veterans who have resided in Texas for less than
five years.

As a general matter, a state may grant preferences to veterans. Rios
v. Dillman, 499 F.2d 329 (5th Cir. 1974); Koelfgen v. Jackson, 355 F.Supp.
243 (D.Minn. 1972)(3-judge court) aff’d. mem. 410 U.S. 976 (1973)~ E.
Fredrick v. United States, 507 F. 2d 1264 (U.S. Ct. Cl. 1974).

p. 2870
The Honorable Oscar H. Mauzy, page 2

However, several federal district courts have determined durational
residency requirements to constitute a denial of equal protection in the
context of veterans’ preferences and benefits. In Carter v. Gallagher,
337 F. Supp. 626 (D. Minn. 1971), the court held unconstitutional a five
year residency requirement contained in Minnesota’s veteran preference
act. The court quoted Shapiro v. Thompson, 394 U. S. 618 (1969). in which
the Supreme Court held unconstitutional a residency requirement for the
receipt of welfare benefits.

The waiting-period provision denies welfare
benefits to otherwise eligible applicants solely
because they have recently moved into the
jurisdiction. But in moving from State to State
or to the District of Columbia appellees were
exercising a constitutional right, and any
classification which serves to penalize the
exercise of that right, unless shown to be
necessary to promote a COMPELLING govern-
mental interest, is unconstitutional. ’ 394 U.S.
at 634, 89 S. Ct. at 1331. (Emphasis in original).

Accord: Cole v. Housing Authority of City of
Newport, 435 F. 2d 807. 809 (1st Cir. 1970);
King v. New Rochelle Municipal Housing
Authority, 442 F. 2d 646 (2d Cir. 1971). 337
F.Supp. at 629.

Noting that there had been some confusion in the lower courts concerning
which fundamental right was relied in Shapiro, the district court stated:

. . . Regardless of what interpretations of Shapiro
formerly obtained, the matter has apparently been
settled by the Supreme Court speaking through
Mr. Justice Blackmun in Graham v. Richardson,
403 U.S. 365. 91 S. Ct. 1848, 29 L. Ed.Zd 534:

p. 2871
The Honorable Oscar H. Mauzy, page 3

‘It is enough to say that the classifi-
cation involved in Shapiro was sub-
jected to strict -tiny under the
compelling state interest test, not
because it was based on any suspect
criterion such as race, nationality,
or alienage, but, because it impinged
upon the fundamental right of inter-
state movement. . . . ’ 403 U.S. at
375 (Emphasis supplied by district
court) , . . 337 F.Supp. at 632.

Thus, the court in Gallagher concluded that:

. . . There is no question that the fundamental
right to interstate travel is involved in the instant
case. It is no more open to question, in the opinion
of this Court, that a statute which requires a person
who has recently traveled interstate to wait five
years to obtain employment preference granted
immediately to an otherwise equally qualified
person who did not so travel imposes a penalty
operative solely upon the exercise of that right,
Under such circumstances the defendants must
demonstrate that there is some compelling State
interest which justifies the distinction. Oregon v.
Mitchell, 400 U.S. at 238, 91 S. Ct. 260. 337
F. Supp. at 632.

The court found no such compelling state interest and therefore held the
five year residency requirement unconstitutional as violating the equal
protection clause of the 14th Amendment by discriminating against a class
of persons exercising the fundamental right of interstate travel.

In Stevens v. Campbell, 332 F. Supp. 102 (D. Mass. 1971) (3-judge court),
the court addressed a five year residency requirement in the Massachusetts
veterans preference act and held it unconstitutional as a denial of equal pro-
tection, for the requirement:

p, 2872
The Honorable Oscar H. Mauzy. page 4

. . . imposes upon admission to the class
of persons who are entitled to preference
in public employment a limitation which
has no relevance to any legitimate govern-
mental purpose. ,332 F. Supp. at 106.

Thus the court concluded that the residency requirement failed to satisfy
even the more lenient rational basis test.

In Barnes v. Board of Trustees, Michigan Veterans Trust Fund,
369 F. Supp. 1327 (W. D. Mich. 1973) (3-judge court), the court held
unconstitutional a five year residency requirement for eligibility for
benefits from a Veterans Trust Fund. The court relied on Shapiro, Graham,
and Gallagher, and held:

. . . Having found that this durational residency
requirement penalizes the exercise of the fun-
damental right to travel, this court must deter-
mine whether the requirement is necessary to
promote a compelling state interest. 369 F. Supp.
at 1335.

. . . this durational residency requirement is held
to be unconstitutional because it is not necessary
to promote a compelling state interest. 369 FI
Supp. at 1337.

While the Supreme Court has not addressed the constitutionality of a
residency requirement in a veterans preference or benefit statute, the seven
federal district judges who have considered the question have unanimously
determined that the decision of the Supreme Court in the Shapiro case requires
such a residency provision to be held unconstitutional. On the authority of
these cases it is our opinion that the durational residency requirement of
article 4413(31) probably would be held to be unconstitutional under the equal
protection clause of the 14th Amentment. However, this opinion should not
be construed as indicating that g residency requirement for veterans
preference would be unconstitutional. See. August v. Bronstein, 369 F.Supp.
190 (S. D. N. Y. 1974)(3-judge court).

p. 2873
The Honorable Oscar H. Mauzy, page 5

The courts in Gallagher, Stevens, and Barnes merely deleted the
invalid residency requirement; the remaining provisions remained
operative. Article Ila, V. T. C. S., provides:

Sec. 1. Except to the extent otherwise specifically
provided in a statute enacted previously or
in the future, if any provision of a statute
or its application to any per.son or circum-
stance is held invalid, the invalidity does
not affect other provisions or applications
of the statute which can be given effect with-
out the invalid provision or application, and
to this end the provisions of each statute
are declared to be severable.

Sec. 2. Nothing in this act affects the power or the
duty of a court in an appropriate case to as-
certain and effectuate the intent of the legis-
lature with regard to the severability of a
statute.

Since article 4413(31) contains no specific provision regarding severability,
and since we believe the principal intent of that article is to grant veterans
preference in governmental employment, in our opinion all provisions of
article 4413(31) other than the durational residency provision remain operative.
Accordingly, article 4413(31) gives a preference to all otherwise qualified
veterans who are citizens of Texas.

SUMMARY

The five year durational residency requirement
of the Veterans Preference Act, article 4413(31),
V. T. C. S., would probably be held to be unconstitutional.
The remaining provisions are operative. Thus, veterans
who otherwise qualify under the Act are entitled to a
preference if they are citizens of Texas at the time of
application.

/ / Attorney General of Texas
y. 2874
The Honorable Oscar H. Mauzy, page 6

APPROVED:

Opinion Committee

p. 2875