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Ezel / AG Opinions / TX
TX JM-33 May 18, 1983

Can a Texas law require appointments to a state commission to consider race, sex, religion, or national origin?

Short answer: No, not as to those categories. JM-33 concluded a directive to weigh race, creed, sex, religion, or national origin in appointments to the State Library and Archives Commission was unconstitutional, but requiring attention to geographical distribution was permissible.

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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 1983
Subsequent statutory amendments, court decisions, or later AG 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.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. The opinion dates from 1983 and analyzes a pending bill under the constitution as it then stood; verify current law before relying on it.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original AG opinion (PDF)

Texas AG Opinion JM-33: Commission Appointment Rules

Plain-English summary

A House committee chairman asked whether part of Senate Bill No. 427 was constitutional. The bill said appointments to the State Library and Archives Commission "shall be made with due regard for the race, creed, sex, religion, national origin, and geographical distribution of the appointees."

JM-33 split the answer. Directing appointments based on race, creed, sex, religion, or national origin used suspect classifications, and the opinion could not see how that would serve a compelling interest.

"In our opinion, it is difficult to imagine how a legislative directive to select members of a public body on the basis of such suspect categories could serve a compelling state interest."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

So that part of the bill was, on its face, unconstitutional under Article I, sections 3a and 4 of the Texas Constitution. Geographical distribution was different: it is not a suspect classification, so it only had to meet the rational basis test, which it could.

"Thus, we conclude that that portion of Senate Bill No. 427 which requires consideration to be given to geographical distribution in making appointments to the commission is not, on its face, unconstitutional."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

The opinion also blessed alternative language the bill's author proposed, which stated a diversity purpose and required non-discriminatory appointments, because that simply restated existing constitutional requirements.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Why were race, sex, religion, and national origin treated as off-limits?

Because the Texas Constitution makes them suspect classifications, which trigger strict scrutiny, and the opinion saw no compelling interest that a hiring directive on those grounds could serve.

"Under the plain language of article I, sections 3a and 4, of the Texas Constitution race, creed, sex, religion and national origin are suspect classifications."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

Why was geographical distribution allowed?

Because it is not a suspect classification and no fundamental right was involved, so it was reviewed under the lenient rational basis test and passed.

"On the other hand, geographical distribution has not been held to be a suspect classification."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

Was the author's alternative language acceptable?

Yes. It stated a lawful purpose and required non-discriminatory appointments, echoing rather than contradicting the constitution.

"In our opinion the provision is constitutional."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

Background and statutory framework

The opinion applied the two-tier equal protection framework a Texas appellate court adopted in Mercer v. Board of Trustees, North Forest Independent School District, drawing on United States Supreme Court decisions. Under that framework, suspect classifications and fundamental rights get strict scrutiny, and everything else gets rational basis review.

"In Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 (Tex. Civ. App. - Houston [14th Dist.] 1976, writ ref'd n.r.e.), the court, in analyzing article I, section 3a, adopted the 'two-tiered' approach to judicial review devised by the United States Supreme Court in addressing classifications under the federal equal protection clause."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

Article I, section 3a bars denying equality under the law because of sex, race, color, creed, or national origin, and article I, section 4 bars a religious test for public office.

Holding

"The legislature may not, consistent with article I, sections 3a and 4, of the Texas Constitution, require consideration to be given to matters of sex, race, color, creed, or national origin in making appointments to the State Library and Archives Commission, but is not prohibited from requiring that consideration be given to geographical distribution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0033.pdf

Citations and references

Statutes and constitutional provisions discussed by JM-33:

Cases cited by JM-33:

  • "Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 (Tex. Civ. App. - Houston [14th Dist.] 1976, writ ref'd n.r.e.)" Official PDF
  • "Reed v. Reed, 404 U.S. 71, 76 (1971)" Official PDF
  • "Dunn v. Blumstein, 405 U.S. 330 (1972)" Official PDF
  • "Hodel v. Indiana, 452 U.S. 314, 332 (1981)" Official PDF
  • "Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70 (1978)" Official PDF
  • "Schweiker v. Wilson, 450 U.S. 221, 234 (1981)" Official PDF
  • "Graham v. Richardson, 403 U.S. 365 (1971)" Official PDF

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

May 18, 1983

Honorable Ed Emmett
Chairman
Committee on Cultural & Historical Resources
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-33

Re: Constitutionality of provisions in Senate Bill No. 427 relating to race, creed, sex, religion, national origin, and geographical distribution of appointees to state commission

Dear Representative Emmett:

You have requested our opinion regarding the constitutionality of a portion of Senate Bill No. 427, presently pending in the Sixty-eighth Legislature. The bill provides, with respect to appointments to the State Library and Archives Commission:

Appointments to the Commission shall be made with due regard for the race, creed, sex, religion, national origin, and geographical distribution of the appointees.

Article I, section 3a, of the Texas Constitution states:

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.

Article I, section 4, of the Texas Constitution provides:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

In Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 (Tex. Civ. App. - Houston [14th Dist.] 1976, writ ref'd n.r.e.), the court, in analyzing article I, section 3a, adopted the "two-tiered" approach to judicial review devised by the United States Supreme Court in addressing classifications under the federal equal protection clause. Under one approach, the "rational basis" test, the court merely decides whether the classification is:

reasonable, not arbitrary, and . . . rest[s] upon some ground of difference having a fair and substantial relation to the object of the legislation.

538 S.W.2d at 204. This is a permissive standard of judicial review. Id. See also Reed v. Reed, 404 U.S. 71, 76 (1971). Under the "strict scrutiny" test, on the other hand, the classification will be upheld only if the governmental body shows that the classification is necessary to promote a compelling interest. See Dunn v. Blumstein, 405 U.S. 330 (1972). Strict scrutiny

is triggered either by laws which affect certain 'fundamental rights' . . . or which provide for different treatment of persons on the basis of a 'suspect classification' (such as race, alienage, and national origin).

538 S.W.2d at 204.

Under the plain language of article I, sections 3a and 4, of the Texas Constitution race, creed, sex, religion and national origin are suspect classifications. In our opinion, it is difficult to imagine how a legislative directive to select members of a public body on the basis of such suspect categories could serve a compelling state interest. We are aware of no judicial decision which has so held, and we must therefore conclude that that portion of Senate Bill No. 427 which requires consideration to be given to any such suspect classification in making appointments to the commission is, on its face, violative of article I, sections 3a and 4, of the Texas Constitution.

On the other hand, geographical distribution has not been held to be a suspect classification. See Hodel v. Indiana, 452 U.S. 314, 332 (1981); Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70 (1978). Also, because no arguable fundamental rights are involved, strict scrutiny has not been triggered. As a result, the rational basis test is applicable. See Schweiker v. Wilson, 450 U.S. 221, 234 (1981); Cf. Graham v. Richardson, 403 U.S. 365 (1971) (classifications based on alienage are subject to strict scrutiny). We are unable to say that selection of members of the State Library and Archives Commission on the basis of geographical distribution does not "rest upon some ground of difference having a fair and substantial relation to the object of the legislation." Mercer, supra, at 204. Thus, we conclude that that portion of Senate Bill No. 427 which requires consideration to be given to geographical distribution in making appointments to the commission is not, on its face, unconstitutional.

The author of the amendment has asked if the following language would be constitutional:

It is the intent of the legislature that the membership of the commission reflect the cultural and historical diversity of the inhabitants of this state; therefore, appointments to the commission should be made without discrimination based on race, creed, sex, religion, national origin or geographical distribution of the appointees.

This language is distinguishable from the portion of Senate Bill No. 427 which we have discussed. The first sentence of the proposed language states a reasonable legislative purpose with respect to the composition of the State Library and Archives Commission. Moreover, this language does not in itself direct any official to engage in any action, constitutional or otherwise.

The second sentence requires that appointments to the commission be made on a non-discriminatory basis, and thus merely reiterates the requirements of article I, section 3a, of the Texas Constitution that equality under the law not be denied or abridged because of sex, race, color, creed, or national origin, and of article I, section 4, that no religious test be required as a qualification to any office in this state. In our opinion the provision is constitutional.

SUMMARY

The legislature may not, consistent with article I, sections 3a and 4, of the Texas Constitution, require consideration to be given to matters of sex, race, color, creed, or national origin in making appointments to the State Library and Archives Commission, but is not prohibited from requiring that consideration be given to geographical distribution.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton

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