In Texas, can a state employee be fired for any reason, or do state workers have job protections?

Texas AG Opinion JM-941: When State Employees Serve At Will

Plain-English summary

A member of the Texas House asked a simple-sounding question: are all state employees "at will"? An at-will employee is one the employer can fire for almost any reason, or no reason at all. The Attorney General's answer was that at-will is the general rule, but it is not the whole story.

Start with the default. In Texas, someone hired for an open-ended period, with no set term, is presumed to be an at-will employee. That rule applies to people who work for the state just as it applies to people who work for a private company. So as a starting point, yes, most state employees serve at will.

But the general rule bends in two important ways.

First, a specific state employee can have a "property interest" in the job. That is a constitutional idea. The Fourteenth Amendment protects property, and the U.S. Supreme Court has held that a job can be a form of property if the employee has a legitimate claim of entitlement to keep it. Where does such a claim come from? Not from the employee simply wanting or expecting the job. It comes from an outside source: a state statute, a local ordinance, an agency rule, or a mutually explicit understanding between the worker and the employer. The clearest example is a statute that says an employee can be dismissed only "for cause" or "for just cause." When a law says that, it converts the job from at-will into something the employee has a protected interest in, and the state cannot take it away without due process.

Texas statutes cut both ways on this. Some create a protected interest: the opinion pointed to the law letting Department of Public Safety employees be fired only for just cause. Others do the opposite and confirm at-will status: the opinion pointed to a Natural Resources Code provision making General Land Office employees at-will, which a federal court had read as barring any property interest from arising out of informal understandings or agency customs. And when no statute settles the question, an agency's own regulations can still create a property interest, for instance a university rule allowing dismissal only for adequate cause.

Second, even a genuinely at-will employee cannot be fired for a reason the law forbids. At-will means fired for any reason, but not for an illegal one. The opinion listed several protections: federal and state law bar firing someone because of race, color, religion, sex, or national origin; a Texas statute bars denying public employment based on membership or nonmembership in a labor organization; the whistleblower statute protects employees who report wrongdoing; and an employee generally cannot be fired for exercising the constitutional right of free speech.

So the honest answer to the representative's question is: as a general rule state employees serve at will, but whether that rule governs a particular employee requires looking at the statutes and rules that apply to that job, at any promises that were made, and at the list of reasons for which no employee, at-will or not, may lawfully be fired.

Currency note

This opinion was issued in 1988. 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.

Texas employment law has moved considerably since 1988. The whistleblower and anti-discrimination statutes cited here (article 6252-16a and article 5221k, V.T.C.S.) have been recodified into the Government Code and the Labor Code, and the case law on public-employee property interests and free-speech retaliation has continued to develop. Anyone facing a state-employment dismissal today should check the current statutes and current case law rather than the 1988 citations in this opinion.

Who this opinion affected (as of 1988)

State employees: The opinion told them at-will is the default, but that a statute, rule, or mutual understanding requiring cause for dismissal can give them a protected property interest, and that no employee may be fired for an unlawful reason.

State agencies and their managers: The opinion signaled that the statutes and regulations governing a given agency determine whether its employees are truly at-will, so a manager cannot assume every worker can be dismissed at pleasure.

The legislature: The opinion illustrated how statutory word choices, "for cause" versus "at will," directly control whether state jobs carry constitutional protection.

Common questions

Are Texas state employees at-will?
Generally yes. The Attorney General concluded that a state employee hired for an unspecified period is generally at-will, the same rule that applies to private employees. But the general rule can be displaced for a particular employee.

When does a state employee have job protection?
When there is a legitimate claim of entitlement to the job, arising from a statute, ordinance, rule, or mutually explicit understanding, such as a law or regulation requiring that dismissal be for cause. That creates a property interest protected by the Fourteenth Amendment.

Can an at-will state employee still sue for wrongful firing?
Sometimes. Even an at-will employee cannot be fired for an unlawful reason. The opinion listed discrimination based on race, color, religion, sex, or national origin, retaliation for labor-organization membership, whistleblowing, and exercising free speech as off-limits reasons.

How do I know if my particular state job is at-will?
The opinion said it is necessary to examine the statutes and regulations that apply to the job and to determine whether any express or implied promises limit the state's right to terminate the employee. There is no single answer for every state job.

Background and statutory framework

An at-will employee serves at the will of the employer and can be fired for any reason (East Line & R.R. Co. v. Scott, 10 S.W. 99 (Tex. 1888)). Under Texas law an employee hired for an unspecified period is generally an at-will employee (Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985)), and that rule applies to state employees as well as private employees (Attorney General Opinion M-628 (1970); Christian v. McKaskle, 649 F. Supp. 1475 (S.D. Tex. 1986)).

Despite that general rule, a particular state employee may have a property interest in employment protected by the Fourteenth Amendment. Whether an employee has such an interest depends on whether circumstances give rise to a legitimate claim of entitlement (Board of Regents v. Roth, 408 U.S. 564 (1972)), and the source of such a claim can be a state statute, a local ordinance, a rule, or a mutually explicit understanding (Perry v. Sindermann, 408 U.S. 593, 601 (1972)). Some state employees are subject to statutes that create property interests by providing that dismissal must be for cause (for example, Government Code section 411.007, providing that Department of Public Safety employees may be discharged only for just cause). Others are subject to statutes providing that the employees serve at will (for example, Natural Resources Code section 31.020; Batterton v. Texas General Land Office, 783 F.2d 1220 (5th Cir. 1986), cert. denied, 107 S. Ct. 316), which the Fifth Circuit read as establishing at-will status for General Land Office employees and as holding that informal understandings and agency customs could not give rise to a property interest in the face of a statute providing that employees serve at will. Where there is no statute to the contrary, agency regulations may also give rise to property interests, as where university regulations providing that an instructor-counselor could be dismissed only for adequate cause created a property interest (Page v. DeLaune, 837 F.2d 233 (5th Cir. 1988); Levitt v. University of Texas at El Paso, 759 F.2d 1224 (5th Cir. 1985), cert. denied, 476 U.S. 1104 (1986)).

The at-will doctrine is also limited by statutes and doctrines that prohibit termination for certain reasons. The state may not discharge employees for exercising the right of free speech, and various statutes bar discrimination based on race, color, religion, sex, or national origin (42 U.S.C. section 2000e-2; article 5221k, V.T.C.S. (Human Rights Commission Act)), denial of public employment based on membership or nonmembership in a labor organization (article 5154c, V.T.C.S.), and retaliation against whistleblowers (article 6252-16a, V.T.C.S.; Attorney General Opinion JW-227 (1984)). To determine whether the general at-will rule applies to a particular employee, it is necessary to examine relevant statutes and regulations and to determine whether express or implied promises have been made that limit the state's right to terminate the employee.

Citations

Statutory authority:

• Section 411.007, Government Code (Department of Public Safety employees discharged only for just cause)
• Section 31.020, Natural Resources Code (General Land Office employees serve at will)
• 42 U.S.C. § 2000e-2 (prohibiting employment discrimination based on race, color, religion, sex, or national origin)
• Article 5221k, V.T.C.S. (Human Rights Commission Act)
• Article 5154c, V.T.C.S. (public employment not denied based on labor-organization membership)
• Article 6252-16a, V.T.C.S. (whistleblower statute)

Cases:

• East Line & R.R. Co. v. Scott, 10 S.W. 99 (Tex. 1888) (Texas Supreme Court; at-will rule)
• Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985) (Texas Supreme Court; employee hired for an unspecified period is generally at-will)
• Christian v. McKaskle, 649 F. Supp. 1475 (S.D. Tex. 1986) (federal district court; at-will rule applies to state employees)
• Board of Regents v. Roth, 408 U.S. 564 (1972) (U.S. Supreme Court; property interest requires a legitimate claim of entitlement)
• Perry v. Sindermann, 408 U.S. 593 (1972) (U.S. Supreme Court; source of a claim of entitlement)
• Batterton v. Texas General Land Office, 783 F.2d 1220 (5th Cir. 1986) (federal appellate court; statute establishing at-will status defeats informal property interests)
• Page v. DeLaune, 837 F.2d 233 (5th Cir. 1988) (federal appellate court; agency regulation requiring cause created a property interest)
• Levitt v. University of Texas at El Paso, 759 F.2d 1224 (5th Cir. 1985) (federal appellate court; university employment)

Prior Attorney General materials referenced: M-628 (1970); JW-227 (1984).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-941
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0941.pdf

Original opinion text

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

August 18, 1988

Honorable Allen Hightower
Chairman
Corrections Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-941

Re: Circumstances under which a state employee may be discharged (RQ-1418)

Dear Representative Hightower:

You ask whether all state employees are employed "at will." An "at will" employee serves at the will of the employer and can be fired for any reason. East Line & R.R. Co. v. Scott, 10 S.W. 99 (Tex. 1888).

Under Texas law an employee hired for an unspecified period of time is generally an "at will" employee. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). That general rule applies to state employees as well as private employees. Attorney General Opinion M-628 (1970). See also Christian v. McKaskle, 649 F. Supp. 1475 (S.D. Tex. 1986).

Despite that general rule, however, a particular state employee may have a property interest in his employment protected by the fourteenth amendment to the United States Constitution. Whether a particular state employee has a property interest in his job depends on whether there are circumstances that give rise to a legitimate claim of entitlement. Board of Regents v. Roth, 408 U.S. 564 (1972). The source of such a claim can be a state statute, a local ordinance, a rule, or a mutually explicit understanding. Perry v. Sindermann, 408 U.S. 593, 601 (1972).

Some state employees are subject to statutes that create property interests by providing that dismissal must be for cause. See, e.g., Gov't Code section 411.007 (Department of Public Safety employees may be discharged only for "just cause"). Other state employees are subject to statutes that provide that the employees serve at will. See, e.g., Nat. Res. Code section 31.020; Batterton v. Texas General Land Office, 783 F.2d 1220 (5th Cir. 1986), cert. denied, 107 S. Ct. 316. Batterton interpreted section 31.020 of the Natural Resources Code as establishing "at will" status for employees of the General Land Office. 783 F.2d at 1222-23. Batterton also held that informal understandings and agency customs could not give rise to a property interest in the face of a statute providing that employees serve at will.

When there is no statute to the contrary, agency regulations may also give rise to property interests. For example, university regulations that provided that an instructor-counselor at Texas A&M University could only be dismissed for "adequate cause" gave rise to a property interest. Page v. DeLaune, 837 F.2d 233 (5th Cir. 1988). See also Levitt v. University of Texas at El Paso, 759 F.2d 1224 (5th Cir. 1985), cert. denied, 476 U.S. 1104 (1986).

In summary, there is a general rule that state employees in Texas serve at will. To determine whether that general rule applies to a particular employee, however, it is necessary to examine relevant statutes and regulations and to determine whether express or implied promises have been made which limit the right of the state to terminate an employee.

You should also be aware that the "at will" doctrine is limited by doctrines and statutes that prohibit termination of employment for certain reasons. For example, the state may not discharge employees for exercising their right of free speech. See Rankin v. McPherson, 107 S. Ct. 2891, 2896 (1987) (a public employee may be entitled to reinstatement if dismissed for exercising the right of free speech). See also 42 U.S.C. section 2000e-2 (prohibiting discrimination based on race, color, religion, sex, or national origin); V.T.C.S. article 5221k (Human Rights Commission Act). Another example of a statute that limits the "at will" doctrine is article 5154c, V.T.C.S., which provides that no person shall be denied public employment based on membership or nonmembership in a labor organization. See also V.T.C.S. article 6252-16a ("whistle blower" statute); Texas State Employees Union v. Texas Department of Mental Health and Mental Retardation, 746 S.W.2d 203 (Tex. 1987); Attorney General Opinion JW-227 (1984).

SUMMARY

As a general rule, state employees serve at will. A particular state employee may, however, have a property interest in his job. Whether a particular state employee has a property interest in his job depends on whether his circumstances give rise to a legitimate claim of entitlement. Also, various statutes and decisions place limitations on the "at will" doctrine by prohibiting termination for specified reasons.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk and Karen Gladney
Assistant Attorneys General