What standard must a Texas state agency meet to override a parent's rights over their child?

Plain-English summary

Senator Jane Nelson, who chaired the Senate Committee on Health Services, asked a focused constitutional question: when a state agency tries to interfere with a parent's right to direct the upbringing of his or her children, what legal standard does the agency have to meet? The opinion's answer was the toughest standard in constitutional law, "compelling state interest."

The opinion grounded that answer in a 1999 statute and a long line of Supreme Court cases. Section 151.005 of the Family Code says a state agency "may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child" (nearly identical language had been added to the Labor Code in 1997 and then repealed when section 151.005 was enacted). The phrase "fundamental right" is a legal term of art for equal-protection and due-process purposes, covering the personal-liberty protections recognized in the federal and state constitutions. So the statute simply restates a principle the Supreme Court announced as far back as Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), and reaffirmed in Wisconsin v. Yoder (1972): parents have a constitutionally protected liberty to direct their children's upbringing and education.

Because that parental right is fundamental and part of the constitutional guarantee of personal privacy (covering home, marriage, procreation, motherhood, child rearing, and education), the opinion concluded that any government regulation limiting it can be justified only by a compelling state interest, and any law that infringes it must be narrowly drawn to express only valid state interests. Applying that framework, a state agency that seeks to interfere with a parent's fundamental right to direct a child's upbringing must satisfy the compelling-state-interest standard.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Senator Jane Nelson (what the opinion held): The opinion answered her question directly, concluding that the constitutional standard governing a state agency's interference with a parent's right to direct a child's upbringing is "compelling state interest."

State agencies (what the opinion held for them): The opinion held that an agency rule, policy, or action that interferes with a parent's fundamental right to direct a child's upbringing must be justified by a compelling state interest and narrowly drawn, consistent with section 151.005 of the Family Code.

Parents (what the opinion held for them): The opinion held that the right to direct a child's upbringing is a fundamental constitutional right, codified in section 151.005, that the state may override only by meeting the compelling-state-interest standard.

Common questions

What standard must a Texas agency meet to interfere with a parent's child-rearing decisions?
The opinion concluded the agency must satisfy the "compelling state interest" standard, the strictest constitutional test.

Where does that parental right come from?
The opinion explained it is a fundamental right recognized by the U.S. Supreme Court in cases like Meyer v. Nebraska, Pierce v. Society of Sisters, and Wisconsin v. Yoder, and codified in Texas by section 151.005 of the Family Code.

What does "compelling state interest" require in practice?
Under the opinion's framework, a regulation limiting the right can be justified only by a compelling state interest, and any infringing law must be narrowly drawn to express only valid state interests.

Background and statutory framework

Section 151.005 of the Family Code, adopted in 1999, provides that a state agency "may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child"; virtually identical language added to chapter 81 of the Labor Code in 1997 was repealed when section 151.005 was enacted. "Fundamental right" is a term of art that, under the rule that technical terms are construed by their acquired meaning (Tex. Gov't Code § 311.011(b)), covers the express and implied personal-liberty protections of the federal and state constitutions (Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556 (Tex. 1985), appeal dism'd, 475 U.S. 1001 (1986); Jack v. Jack, 796 S.W.2d 543 (Tex. App.-Dallas 1990, no writ)).

The opinion traced the parental right to a line of U.S. Supreme Court decisions: Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925) (striking down Oregon's compulsory public-school law as an unreasonable interference with parents' liberty to direct their children's upbringing and education under the Fourteenth Amendment), and State of Wisconsin v. Yoder, 406 U.S. 205 (1972) (the First and Fourteenth Amendments barred compelling Amish parents to send their children to formal high school to age sixteen). The Court has also treated such personal rights as part of the constitutional guarantee of privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)), reaching matters of home, marriage, procreation, motherhood, child rearing, and education, where regulation limiting fundamental rights can be justified only by compelling state interests and must be narrowly drawn (Carey v. Population Servs. Int'l, 431 U.S. 678 (1977)). From these authorities the opinion concluded that a state agency interfering with a parent's fundamental right to direct a child's upbringing must satisfy the compelling-state-interest standard.

Citations

Statutory provisions:

• Tex. Fam. Code Ann. § 151.005
• Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998)

Cases:

• Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556 (Tex. 1985), appeal dism'd, 475 U.S. 1001 (1986)
• Jack v. Jack, 796 S.W.2d 543 (Tex. App.-Dallas 1990, no writ)
• Meyer v. Nebraska, 262 U.S. 390 (1923)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925)
• State of Wisconsin v. Yoder, 406 U.S. 205 (1972)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Carey v. Population Servs. Int'l, 431 U.S. 678 (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0226
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0226.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

May 26, 2000

The Honorable Jane Nelson
Chair, Committee on Health Services
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JC-0226

Re: Whether "compelling state interest" analysis applies to a state agency's interference with a parent's right to direct the upbringing of his or her children (RQ-0205-JC)

Dear Senator Nelson:

You have requested our opinion regarding the constitutional standard to be applied when a state agency attempts to interfere with a parent's right to direct the upbringing of his or her children. For the reasons set forth below, we conclude that the standard is "compelling state interest."

In the past three years the legislature has enacted two statutes that prohibit a state agency from interfering with parental rights vis-a-vis their children. Section 151.005 of the Family Code, adopted in 1999, provides: "A state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child." Virtually identical language was added in 1997 to House Bill 425 amending chapter 81 of the Labor Code, but was repealed when section 151.005 was enacted.[1]

"Fundamental Rights" is a term of art for purposes of both equal protection and due process analysis. See TEX. GOV'T CODE ANN. § 311.011(b) (Vernon 1998) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). The term comprises those express and implied protections of personal liberty recognized in the federal and state constitutions. See Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560 (Tex. 1985), appeal dism'd, 475 U.S. 1001 (1986); Jack v. Jack, 796 S.W.2d 543 (Tex. App.-Dallas 1990, no writ). Thus, section 151.005 of the Family Code simply codifies well-established principles announced by the United States Supreme Court as long ago as 1923 in Meyer v. Nebraska, 262 U.S. 390, 399 (1923). In Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925) the Court declared that the Oregon Compulsory Education Act, which required every person having custody of a child between eight and sixteen years to send him or her to a public school, "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control," in contravention of the Fourteenth Amendment to the United States Constitution. Id. at 534-35. The Court reached the same conclusion almost a half-century later in State of Wisconsin v. Yoder, 406 U.S. 205 (1972), when it held that the First and Fourteenth Amendments prohibited the state from compelling Amish parents "to cause their children to attend formal high school to age 16." Id. at 234.

The Supreme Court has also made clear that personal rights that can be deemed fundamental or that are implied in the concept of ordered liberty are included in the Constitution's guarantee of personal privacy. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965). Those privacy rights include matters relating to the home, marriage, procreation, motherhood, child rearing, and education. See Carey v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977). In these categories, where fundamental rights are at issue, regulation limiting these rights can be justified only by "compelling state interests." See id. at 686. Legislation that attempts to infringe on these rights must be narrowly drawn to express only valid state interests. See id.; see also Griswold, 381 U.S. at 485.

We conclude that, when a state agency attempts to interfere with the fundamental right of a parent to direct the upbringing of his or her children, it must, in order to do so, satisfy the constitutional standard of "compelling state interest."

[1] See Act of May 26, 1997, 75th Leg., R.S., ch. 1225, § 3(b), 1997 Tex. Gen. Laws 4691, 4692, repealed by Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, § 6.18(h), 1999 Tex. Gen. Laws 127, 143.

SUMMARY

When a state agency attempts to interfere with the fundamental right of a parent to direct the upbringing of his or her child, it must, in order to do so, satisfy the constitutional standard of "compelling state interest."

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee