Untitled Texas Attorney General Opinion

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

'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 I.
Mr. James M. Bass - Page 2 (KP-0070)

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.
Mr. James M. Bass - Page 3 (KP-0070)

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
ofthe 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