Does Texas's E-Verify law (SB 374) replace Governor Perry's Executive Order RP-80?

Plain-English summary

E-Verify is the federal Department of Homeland Security system employers use to confirm a new hire is authorized to work. Texas had reached the same goal two different ways. In 2014, Governor Rick Perry issued Executive Order RP-80, requiring every agency under the Governor's direction to run new executive-agency employees and contractor and subcontractor employees through E-Verify. Then, in 2015, the Legislature passed Senate Bill 374 (effective September 1, 2015), which added chapter 673 to the Government Code and required all state agencies to participate in E-Verify, but said nothing about contractors and subcontractors. The Texas Department of Transportation asked the AG whether the new statute swept away the executive order entirely, and if not, whether agencies still had to verify their contractors.

The AG read section 673.002 and the order side by side and found two differences. First, who is covered: the statute defines "state agency" broadly (any agency of any branch, including higher education), so it reaches agencies regardless of whether they are run by the Governor's appointees, which is a wider group than the order's. Second, what is covered: the statute requires verifying only "new employees," while the order also reached contractors and subcontractors.

So the AG drew a clean line. On verifying new employees, the statute supersedes the order, because the Legislature has now imposed that duty on all state agencies by law. On verifying contractors and subcontractors, the statute does not specifically supersede or preempt the order, because the statute simply does not address contractors. For agencies under the Governor's direction, the order's contractor-verification requirement was not displaced by the statute.

Currency note

This opinion was issued in 2016. 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. Chapter 673 of the Government Code, and any later executive orders on E-Verify, may have changed since 2016, so confirm the current law and the current status of Executive Order RP-80 before relying on these specifics.

What the opinion meant for those who asked

The Texas Department of Transportation and other state agencies (as the opinion described it): The opinion told them that section 673.002 supersedes Executive Order RP-80 on verifying new employees through E-Verify, and that the statutory duty reaches all state agencies regardless of whether they are governed by gubernatorial appointees.

Agencies under the Governor's direction (as the opinion described it): The opinion described the statute as not specifically superseding or preempting the order's separate requirement to verify contractors and subcontractors, so that part of the order was not displaced for those agencies.

Contractors and subcontractors (as the opinion described it): The opinion described Executive Order RP-80's contractor-and-subcontractor verification requirement as outside the scope of section 673.002, which addresses only new employees.

Common questions

Did Senate Bill 374 replace Executive Order RP-80?
Only in part. The AG concluded section 673.002 supersedes the order on verifying new employees through E-Verify, but does not specifically supersede or preempt the order's contractor-and-subcontractor verification requirement.

Do Texas state agencies have to use E-Verify for new hires?
Yes. The AG noted section 673.002 requires a state agency to register and participate in the E-Verify program to verify information of all new employees.

Does the E-Verify statute cover contractors and subcontractors?
No. The AG explained section 673.002 mandates verification only of new employees, not contractors and subcontractors.

Are agencies under the Governor still required to check contractors?
The AG concluded the statute did not supersede or preempt the order's contractor-verification requirement, so that requirement was not displaced for agencies under the Governor's direction.

Which agencies does the E-Verify statute apply to?
The AG noted "state agency" is defined broadly to include a department, commission, board, office, or other agency of any branch of state government, including an institution of higher education, regardless of gubernatorial control.

Background and statutory framework

Senate Bill 374 added chapter 673 to the Government Code, requiring a state agency to register and participate in E-Verify to verify information of all new employees, and adopting a broad definition of "state agency" that reaches any agency of any branch of state government, including higher education (Tex. Gov't Code §§ 673.002, 673.001(2), 659.101). The AG compared that statute to Executive Order RP-80, which had required agencies under the Governor's direction to verify both executive-agency employees and contractor and subcontractor employees.

Because the statute reaches a broader set of agencies but covers only new employees, the AG concluded it supersedes the order's new-employee verification requirement for all state agencies, while not specifically superseding or preempting the order's separate contractor-and-subcontractor verification requirement.

Citations

Statutory provisions:

• Tex. Gov't Code § 673.002 (state agency must participate in E-Verify for new employees)
• Tex. Gov't Code § 673.001(2) ("state agency" definition cross-reference)
• Tex. Gov't Code § 659.101 (broad definition of "state agency")

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0070
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0070.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 17, 2016

Mr. James M. Bass Opinion No. KP-0070
Executive Director
Texas Department of Transportation Re: Whether Senate Bill 374, requiring state
125 East 11th Street agency participation in the E-Verify program,
Austin, Texas 78701-2483 supersedes Executive Order RP-80
(RQ-0055-KP)

Dear Mr. Bass:

Your predecessor requested an attorney general opinion regarding whether Senate Bill 374, requiring state agency participation in the E-Verify program, supersedes Executive Order RP-80 (the "Order"). [1] As background, the request letter indicates that in 2014, "Governor Rick Perry issued Executive Order No. RP-80, requiring all agencies under the direction of the governor ... to utilize the U.S. Department of Homeland Security's E-Verify program ... to determine the employment eligibility of certain executive agency employees and contractor employees," including "all contractors and subcontractors performing work under a contract for services with executive agencies." [2] Request Letter at 1. "Thereafter, the 84th Texas Legislature passed Senate Bill 374, effective September 1, 2015, requiring all state agencies to participate in the federal E-Verify program"; however, Senate Bill 374 did "not address the employment eligibility verification requirement for contractors and subcontractors." Id. Given these parameters, your predecessor asked whether "Senate Bill 374 ... supersede[s] and completely replace[s] all aspects of" the Order and, if not, whether agencies under the direction of the Governor are still obligated to verify the employment eligibility of their contractors and subcontractors. Id.

Senate Bill 374 added chapter 673 to the Government Code, which provides in section 673.002 that "[a] state agency shall register and participate in the E-Verify program to verify information of all new employees." TEX. GOV'T CODE § 673.002. For purposes of chapter 673, the term "state agency" is defined broadly to include "a department, commission, board, office, or other agency of any branch of state government, including an institution of higher education." See id. § 659.101 (defining "state agency"); see also id. § 673.001(2) (providing that "'state agency' has the meaning assigned by Section 659.101"). The term includes all state agencies regardless of whether they are governed by gubernatorial appointees. Thus, section 673.002 differs from the Order in terms of who must comply with the requirement of verifying employment eligibility. Another difference is that section 673.002 mandates the employment eligibility verification only of "new employees" and not contractors and subcontractors. Section 673.002 does not, therefore, supersede the portion of the Order requiring verification of contractors and subcontractors.

In sum, section 673.002 of the Government Code supersedes the Order with respect to the requirement that all state agencies must verify the employment eligibility of new employees through E-Verify. With respect to the verification of employment eligibility of contractors and subcontractors by state agencies under the direction of the Governor, section 673.002 does not specifically preempt or supersede the Order.

SUMMARY

Section 673.002 of the Government Code supersedes Executive Order RP-80 with respect to the requirement that all state agencies must verify the employment eligibility of new employees through the Department of Homeland Security's E-Verify program. With respect to the verification of employment eligibility of contractors and subcontractors by state agencies under the direction of the Governor, section 673.002 does not specifically supersede or preempt Executive Order RP-80.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from LtGen. J.F. Weber, USMC Ret., Exec. Dir., Tex. Dep't of Transp., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Sept. 18, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] The request letter notes that the Order as drafted was the subject of a subsequent guidance letter clarifying the Order's inapplicability to current employees. See Request Letter at 1.