Can a Texas city ban private employers from running random drug tests on their workers?

Plain-English summary

A state legislator asked whether the City of Austin could pass a local law forbidding private employers from giving their workers random drug tests. The Attorney General's answer was that nothing in the law stands in the way as a blanket matter: a home-rule city like Austin can adopt that kind of ordinance.

The opinion walked through the usual hurdles. Home-rule cities in Texas can do anything the Legislature has not forbidden, as long as they do not clash with state law or the constitution. The Attorney General found no Texas statute that takes the subject of workplace drug testing away from cities. There is a federal wrinkle: some federal rules, like those the Federal Railroad Administration issues for railroad safety, would override a local ban where they apply. But outside of those pockets, the field was open.

The other question was whether such an ordinance could survive a constitutional attack from employers. The Attorney General noted that since the 1930s courts have given economic regulations a lot of room, judging them under the easygoing "rational basis" test, and that protecting the privacy of people who live and work in the city is a good enough reason to satisfy that test. The opinion was careful, though, to say it could not predict every fact-specific challenge an ordinance might face once written and enforced, so a green light in the abstract is not a guarantee any particular ordinance would survive.

Currency note

This opinion was issued in 1993. 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. State and federal law on workplace drug testing and federal preemption has continued to develop since 1993; confirm current law before relying on anything described here.

Background and statutory framework

The City of Austin is a home-rule city. Under article XI, section 5 of the Texas Constitution, home-rule cities have all powers of self-government not expressly denied by the Legislature, but may not enforce any legislation inconsistent with state laws or the state constitution. The Attorney General found no Texas statute preempting the subject of an ordinance prohibiting random drug testing by private employers.

The opinion flagged a federal limit: certain federal statutes or regulations, such as those the Federal Railroad Administration promulgates under the Federal Railroad Safety Act of 1970 (45 U.S.C. § 431(a)), would preempt such an ordinance to the extent of their applicability. That is a carve-out for federally regulated employers, not a bar on the ordinance generally.

On constitutional exposure, the Attorney General reasoned by analogy to cases involving laws that prohibited polygraph or psychological-stress-evaluator testing of employees: State v. Community Distributors, Inc.; Nothdurft v. Ross; and Gawel v. Two Plus Two, Inc. The conceivable challenges, takings, equal protection, and substantive due process, are challenges to economic regulation, and courts have disfavored them since the mid-1930s (United States v. Carolene Products Co.; Williamson v. Lee Optical Co.). As the Minnesota Supreme Court noted in Gawel, the standard for an economic regulation under the equal protection clause is the rational-basis test. The Attorney General concluded that protecting the privacy of residents who are also employees is a sufficient rational basis, so a home-rule city is not precluded as a matter of law from adopting the ordinance, while cautioning that fact-specific challenges could not be anticipated.

Citations

• Tex. Const. art. XI, § 5 (home-rule powers; no enforcement of legislation inconsistent with state law)
• 45 U.S.C. § 431(a) (Federal Railroad Safety Act of 1970; basis for Federal Railroad Administration regulations that would preempt to the extent applicable)
• State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974)
• Nothdurft v. Ross, 429 N.Y.S.2d 844 (Sup. Ct. 1980)
• Gawel v. Two Plus Two, Inc., 309 N.W.2d 746 (Minn. 1981) (rational-basis test for economic regulation under equal protection)
• United States v. Carolene Products Co., 304 U.S. 144 (1938)
• Williamson v. Lee Optical Co., 348 U.S. 483 (1955)

Common questions

Can a Texas home-rule city ban random drug testing by private employers?
Under this opinion, yes, as a general matter. The Attorney General concluded a home-rule city is not precluded as a matter of law from adopting such an ordinance, because no Texas statute preempts the subject.

Does any law override such a ban?
Some federal rules would, where they apply. The opinion specifically noted Federal Railroad Administration regulations under the Federal Railroad Safety Act of 1970, which would preempt a local ban for the employers they cover.

Could employers challenge the ordinance in court?
They could try, on takings, equal protection, or substantive due process grounds. But the Attorney General noted courts review economic regulation under the lenient rational-basis test and concluded that protecting resident employees' privacy is a sufficient rational basis.

Does this opinion guarantee any specific ordinance is valid?
No. The Attorney General expressly cautioned that challenges might be brought under a broad range of particular fact patterns it could not anticipate in the opinion process. The conclusion was that such an ordinance is not barred as a matter of law, not that every version would survive.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0236
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0236.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 20, 1993

Honorable Fred Hill
Chairman
Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-236

Re: Whether the City of Austin has the authority to enact an ordinance prohibiting random drug testing by private employers within the city (RQ-526)

Dear Representative Hill:

You have asked this office to consider whether the City of Austin has the authority to enact an ordinance prohibiting random drug testing by private employers within the city.

The City of Austin, a home-rule city, has the same general legal powers as all home-rule cities under Texas law. The Texas Constitution gives to home-rule cities all powers of self-government not expressly denied by the legislature, but prohibits such cities from enforcing any legislation inconsistent with state laws or the state constitution. Tex. Const. art. XI, § 5.

You have not cited, and we are not aware of, any Texas statute which preempts the subject of this proposed ordinance. We note, however, that certain federal statutes or regulations, such as those propounded by the Federal Railroad Administration under the authority of the Federal Railroad Safety Act of 1970, 45 U.S.C. § 431(a), would preempt such an ordinance to the extent of their applicability.

Apart from questions of home-rule power or preemption, the only other sorts of challenge we can imagine to such an ordinance would be takings clause, equal protection, or substantive due process arguments of the kind offered in analogous cases involving laws prohibiting the use of the polygraph or the psychological stress evaluator. See, e.g., State v. Community Distributors, Inc., 317 A.2d 697 (N.J. 1974); Nothdurft v. Ross, 429 N.Y.S.2d 844 (Sup. Ct. 1980); Gawel v. Two Plus Two, Inc., 309 N.W.2d 746 (Minn. 1981). However, we note that courts have held such constitutional challenges to economic regulation in disfavor at least since the mid-1930's. See, e.g., United States v. Carolene Products Co., 304 U.S. 144 (1938); Williamson v. Lee Optical Co., 348 U.S. 483 (1955). As the Minnesota Supreme Court pointed out in Gawel, "The standard of review applicable to an economic regulation under the equal protection clause is the 'familiar "rational basis" test.'" 309 N.W.2d at 747. The protection of the privacy of residents who are also "employees" is, we believe, a sufficient rational basis for an ordinance of the sort about which you inquire. Cf. State v. Community Distributors, 317 A.2d 697 (N.J. 1974).

Accordingly, we conclude that a home-rule city is not precluded as a matter of law from adopting an ordinance prohibiting random drug testing by private employers within the city. However, we caution that possible legal challenges to such an ordinance might be brought under a broad range of particular fact patterns, upon which we cannot speculate in the opinion process.

SUMMARY

A home-rule city is not precluded as a matter of law from adopting an ordinance prohibiting random drug testing by private employers within the city.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Jim Tourtelott
Assistant Attorney General