Who has to show proof of selective service registration to get a Texas state government job?

Plain-English summary

The Commissioner of the Texas Rehabilitation Commission asked how to read a then-new hiring rule. Section 651.005 of the Government Code, enacted in 1999, says a state agency may not hire a person who is of the age and gender that would require someone living in the United States to register with the selective service system unless the applicant shows proof of registration or of an exemption. The practical question: does this cover every man born after a certain date (because he once had to register), or only men who are still within the registration-age window when they apply?

The Attorney General concluded the statute reaches only men who are currently at least eighteen but less than twenty-six years old (that is, eighteen through twenty-five inclusive) at the time they are considered for state employment. The reasoning turned on a single word. The Texas statute uses the present-tense "is," and federal selective-service law requires only men aged eighteen to twenty-five to register. By contrast, the federal hiring statute, 5 U.S.C. § 3328, expressly bars appointment of someone who "is or was" required to register, capturing both present and past obligation. The Legislature chose only "is," and the opinion gave that word its plain meaning, reinforced by the rule that present-tense words exclude the past tense.

The upshot, as the opinion framed it, was narrow: only applicants who are within the eighteen-to-twenty-five window must furnish proof of selective-service registration or exemption to be hired by a Texas state agency. A man who is twenty-six or older when considered for the job is outside the statute's reach, even though he may have been required to register years earlier.

Currency note

This opinion was issued in 2000. 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.

Background and statutory framework

Section 651.005, added by House Bill 558 in the 1999 legislative session, conditions state-agency hiring of a person "of the age and gender that would require a person residing in the United States to register with the selective service system under federal law" on the applicant presenting proof of registration or exemption. It does not apply to a person already employed by a state agency before September 1, 1999, as long as that employment is continuous. Federal law, under 50 U.S.C. app. § 453, requires only males at least eighteen but less than twenty-six years old to register, and the requirement applies to males born on or after January 1, 1960. So the live issue was whether "is" in section 651.005 silently included "was," sweeping in every man born after that date regardless of present age.

The opinion answered through the Code Construction rules and the contrast with federal law. Words are read in context and construed by the rules of grammar and common usage under section 311.011(a), and the present tense includes the future tense under section 311.012(a). Drawing on the maxim expressio unius est exclusio alterius, the opinion reasoned that naming the present tense implies the exclusion of other tenses, including the past. The federal hiring statute, 5 U.S.C. § 3328, shows the Legislature knew how to capture past obligation when it wanted to: that provision covers an individual who "is or was" required to register. The Texas statute included only "is."

The opinion supported the plain-meaning approach with Texas cases on statutory construction, including Raines v. Sugg (no construction is needed when a statute is clear and unambiguous) and, on the exclusion maxim, State v. Mauritz-Wells Co., Texas Real Estate Comm'n v. Century 21 Sec. Realty, Inc., and Harris County v. Dowlearn, concluding that few words carry a plainer common meaning than "is," and that "is" for purposes of section 651.005 does not include "was."

Common questions

Does every man who ever had to register for the draft need to prove it to get a Texas state job?
No. The opinion concluded section 651.005 reaches only men currently within the registration-age window, eighteen through twenty-five inclusive, at the time they are considered for employment.

What about an applicant who is 26 or older?
The opinion concluded such an applicant is outside the statute and does not have to furnish proof of selective-service registration or exemption as a condition of state employment.

Why did the age of the applicant matter so much?
Because the statute uses the present-tense "is," and federal law only requires men aged eighteen to twenty-five to register. The opinion read "is" to exclude "was," so the duty to show proof tracks current registration age.

How is the federal hiring rule different?
The federal statute, 5 U.S.C. § 3328, bars appointment of someone who "is or was" required to register, expressly covering past obligation. The Texas statute used only "is."

Citations

Statutes: Tex. Gov't Code Ann. §§ 651.005, 311.011(a), and 311.012(a) (Vernon 1998 & Supp. 2000); 50 U.S.C. app. § 453 (1994); 5 U.S.C. § 3328 (1994). The opinion also cited House Bill 558 (Act of May 12, 1999, 76th Leg., R.S., ch. 171) and Proclamation No. 4771, 45 Fed. Reg. 45247 (1980).

Cases: Ex parte Anderson, 902 S.W.2d 695 (Tex. App.-Austin 1995, pet. denied); Raines v. Sugg, 930 S.W.2d 912 (Tex. App.-Fort Worth 1996, no writ); State v. Mauritz-Wells Co., 175 S.W.2d 238 (Tex. 1943); Texas Real Estate Comm'n v. Century 21 Sec. Realty, Inc., 598 S.W.2d 920 (Tex. Civ. App.-El Paso 1980, writ ref'd n.r.e.); Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0183
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0183.pdf

Original opinion text

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

February 17, 2000

Mr. Vernon M. Arrell, Commissioner
Texas Rehabilitation Commission
4900 North Lamar Boulevard
Austin, Texas 78751-2399

Opinion No. JC-0183

Re: Selective service verification for state employment under section 651.005 of the Government Code (RQ-0118-JC)

Dear Commissioner Arrell:

You have requested our opinion as to the meaning of a provision of a Texas law that a state agency may not hire as an employee any person required to register with the selective service system unless the person presents proof of such registration or exemption therefrom. For the reasons set forth below, we conclude that the statute applies only to individuals who are at present between the ages of eighteen and twenty-five inclusive.

The most recent session of the legislature enacted section 651.005 of the Government Code, by passing House Bill 558,[1] which provides:

(a) An agency in any branch of state government may not hire a person as an employee if the person is of the age and gender that would require a person residing in the United States to register with the selective service system under federal law, unless the person presents proof of the person's:

(1) registration with the selective service system as required by federal law; or

(2) exemption from registration with the selective service system.

(b) This section does not apply to a person employed by a state agency before September 1, 1999, as long as the person's employment by the agency is continuous.

TEX. GOV'T CODE ANN. § 651.005 (Vernon Supp. 2000) (emphasis added).[2] As you indicate, current federal law requires only males who are at least eighteen years of age but less than twenty-six years of age to register with the selective service system. See 50 U.S.C. app. § 453 (1994). The selective service system registration requirement is applicable only to males born on or after January 1, 1960. See Proclamation No. 4771, 45 Fed. Reg. 45247 (1980). The question before us is whether the language of section 651.005 requires proof of selective service compliance of all males born on or after January 1, 1960, or whether proof is required only for those males between the ages of eighteen and twenty-five inclusive at the time they are considered for state employment, i.e., does the word "is" include "was"?

It is instructive to contrast Texas law with its federal counterpart, which provides, in relevant part:

(a) An individual—

(1) who was born after December 31, 1959, and is or was required to register under section 3 of the Military Selective Service Act (50 U.S.C. App. 453); and

(2) who is not so registered or knowingly and willfully did not so register before the requirement terminated or became inapplicable to the individual,

shall be ineligible for appointment to a position in an Executive agency.

5 U.S.C. § 3328 (1994) (emphasis added). Thus, federal law makes clear that the registration requirement is applicable to all males born on or after January 1, 1960, regardless of their age at the time they apply for federal employment. "Is" and "was" are both explicitly covered.

As we have noted, the Texas statute, by contrast, includes only "is." Section 311.011 of the Government Code provides that "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998); see also Ex parte Anderson, 902 S.W.2d 695, 699 (Tex. App.-Austin 1995, pet. denied). The Oxford English Dictionary defines "is" as the singular present indicative of the verb "be." See VIII OXFORD ENGLISH DICTIONARY 104 (2d ed. 1989). "Be" is defined, inter alia, as "[t]o have or take place in the world of fact, to exist, occur, happen"; or again, as "[t]o come into existence, come about, happen, occur, take place, be acted or done." II id. at 3. As the court said in Raines v. Sugg, 930 S.W.2d 912, 913 (Tex. App.-Fort Worth 1996, no writ), "[w]hen [the language of] a statute is clear and unambiguous, no construction by the court is necessary," and its plain meaning must be given effect. It is difficult to imagine a word whose common usage and plain meaning are clearer and less ambiguous than the word "is."

Furthermore, section 311.012 of the Government Code provides that "[w]ords in the present tense include the future tense." TEX. GOV'T CODE ANN. § 311.012(a) (Vernon 1998). On the basis of the common legal maxim known as expressio unius est exclusio alterius, which signifies that the mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others, section 311.012 implies that words in the present tense exclude other tenses, including the past tense. See State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943) ("It is a settled rule that the express mention or enumeration of one . . . thing . . . is equivalent to an express exclusion of all others."); Texas Real Estate Comm'n v. Century 21 Sec. Realty, Inc., 598 S.W.2d 920, 922 (Tex. Civ. App.-El Paso 1980, writ ref'd n.r.e.) (defining expressio unius est exclusio alterius); Harris County v. Dowlearn, 489 S.W.2d 140, 146 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.) ("The express mention or enumeration of one thing . . . is equal to an express exclusion of all others."). Thus, we conclude that "is" for purposes of section 651.005 does not include "was."

In our opinion, it is clear, both from the plain meaning of the word "is," and from the obvious contrast with the language of the federal statute, that section 651.005 applies only to those males who are at least eighteen years of age but less than twenty-six years of age at the time of their consideration for state employment. Only those individuals must furnish proof of selective service registration or exemption therefrom as a condition of state employment.

SUMMARY

Section 651.005 of the Government Code requires only those males who are between the ages of eighteen and twenty-five years inclusive to furnish proof of either selective service registration or exemption therefrom as a condition of state employment.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] Act of May 12, 1999, 76th Leg., R.S., ch. 171, § 1, 1999 Tex. Gen. Laws 640.

[2] Another unrelated section 651.005 was also enacted by the 76th Texas Legislature. See Act of May 11, 1999, 76th Leg., R.S., ch. 279, § 1, 1999 Tex. Gen. Laws 1147, 1148.