Must a Texas corporation give a discharged employee a written statement of the true reason for termination?

Griffin still controlled the Texas employee service-letter statute

Plain-English summary

Section 3 of article 5196 required a corporation, after a written demand, to give a discharged employee a true written statement of the cause of discharge within ten days. It also required a statement that an employee left voluntarily when that employee made a written demand. The forfeiture provision was article 5199, which imposed a one-thousand-dollar penalty for violations.

The Texas Supreme Court had held the service-letter provision unconstitutional in Saint Louis Southwestern Ry. v. Griffin in 1914. Griffin relied on federal freedom-of-contract and equal-protection grounds and on article I, section 8 of the Texas Constitution, reasoning that freedom of speech included a corporation's liberty to remain silent.

Later federal decisions displaced Griffin's federal constitutional analysis, and JM-623 had concluded that the statute did not violate Fourteenth Amendment due process or equal protection. JM-1116 therefore focused on Griffin's separate Texas free-speech holding.

The Attorney General predicted that, if the Texas Supreme Court reconsidered the issue, it would uphold the service-letter law under article I, section 8. Later cases recognized broader police power, allowed regulation of corporate commercial speech, upheld required disclosures, and rejected an absolute constitutional right to remain silent.

That prediction did not make the statute enforceable. An Attorney General opinion could not overrule the Texas Supreme Court. Until the court overruled Griffin, section 3 of article 5196 remained unconstitutional. The Legislature remained free to amend the statute, and JM-1116 modified JM-623's discussion of the Texas free-speech issue.

Currency note

This opinion was issued in 1989. 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.

What the opinion said for affected groups in 1989

Corporate employers

The opinion predicted that compelled truthful service letters could fit within the state's police power and modern commercial-speech doctrine. It nevertheless treated Griffin as controlling, so the existing statute remained judicially invalid.

Discharged and departing employees

The statute promised a written explanation of discharge or confirmation of voluntary departure after a written demand. The opinion did not treat that promise as enforceable while Griffin remained unoverruled.

Courts and state officials

Only a court could overrule Griffin. The Attorney General could analyze later law and predict a new result, but could not validate a statute the Texas Supreme Court had held unconstitutional.

Legislature

Griffin did not prevent amendment of article 5196. The opinion said a statute held unconstitutional remained available for legislative amendment even though it could not be enforced as written.

Common questions

What was a service letter under article 5196?

It was a written statement from a corporation giving the true cause of an employee's discharge, or stating that an employee departed voluntarily, supplied within ten days after a written demand.

Why had Griffin invalidated the law?

Griffin treated compelled service letters as interfering with freedom of contract, federal equal protection, and the Texas constitutional freedom to speak or remain silent.

Why did the Attorney General think a later court might uphold it?

Later decisions recognized broader state police power, protected employees and consumers through economic regulation, permitted required corporate disclosures, and held that speech rights were not absolute when conduct and public welfare were involved.

Did JM-1116 make the statute enforceable?

No. It expressly said Griffin remained controlling until the Texas Supreme Court overruled it. The opinion's prediction could not substitute for a judicial holding.

Could the Legislature amend an unconstitutional statute?

Yes. The opinion said a judicially invalid statute remained on the books for amendment unless expressly repealed.

Background and legal framework

Griffin had described article I, section 8 as protecting both expression and silence. The opinion reviewed service-letter cases from other states, including Missouri decisions upholding a similar statute after the United States Supreme Court rejected the federal constitutional objections.

Texas cases after Griffin used a broader understanding of police power. They upheld laws protecting employee interests, preventing deceptive commercial communications, regulating conduct carried out through speech, requiring disclosures, and compelling evidence in judicial proceedings.

The opinion emphasized the difference between predicting that precedent would be overruled and having authority to overrule it. Attorney General opinions did not have the force of law and could not displace a controlling judicial decision.

Key citations

• Tex. Const. art. I, § 8
• V.T.C.S. art. 5196, § 3
• V.T.C.S. art. 5199
• Saint Louis Southwestern Ry. v. Griffin, 171 S.W. 703 (Tex. 1914)
• Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922)
• Hanch v. K.F.C. Nat'l Management Corp., 615 S.W.2d 28 (Mo. 1981) (en banc)
• Rimmer v. Colt Indus. Operating Corp., 656 F.2d 323 (8th Cir. 1981)
• First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)
• Town of Ascarate v. Villalobos, 223 S.W.2d 945 (Tex. 1949)
• Clark v. State, 665 S.W.2d 476 (Tex. Crim. App. 1984)
• Ex parte Grothe, 687 S.W.2d 736 (Tex. Crim. App. 1984)
• Storrie v. Cortes, 38 S.W. 154 (Tex. 1896)
• Ex parte Hensley, 285 S.W.2d 720 (Tex. Crim. App. 1956)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1116
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1116.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected where verified against the scan and reporter citations; minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

JIM MATTOX November 14, 1989
ATTORNEY GENERAL

Honorable Bob McFarland Opinion No. JM-1116

Chairman

Criminal Justice Committee Re: Validity under article I, Texas State Senate section 8, of the Texas Consti- P. O. Box 12068 tution of article 5196, V.T.C.S., Austin, Texas 78711 which requires a corporation to

give a discharged employee a
statement of reasons for the
termination (RQ-1747)

Dear Senator McFarland:

You request an opinion on the constitutionality of section 3 of article 5196, V.T.C.S. This provision reads in part:

Either or any of the following acts shall constitute discrimination against persons seeking employment:

3. Where any corporation... doing
   business in this state... shall have discharged an employee and such employee demands a statement in writing of the cause of his discharge, and such corporation... fails to furnish a true statement of the same to such discharged employee, within ten days after such demand, or .. . shall fail, within ten days after written demand for the same, to furnish to any employee voluntarily leaving the service of such corporation or receiver, a statement in writing that such employee did leave such service voluntarily.

Statutes of this nature are commonly called "service letter statutes." Annot., 24 A.L.R.4th 1115 (1983). Violators of the Texas service letter statute are subject to forfeiting one thousand dollars to the state. V.T.C.S. art. 5199. It is the duty of the attorney general, or the

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district or county attorney under the direction of the attorney general, to sue to recover the forfeiture. Id. A private cause of action for damages may exist under service

letter statutes. See Cheek v. Prudential Ins. Co., 192 S.W. 387, 393 (Mo. 1917).

The Texas service letter act was adopted in 1907 and codified as section 3, article 594 of the 1911 code. See Acts 1907, 30th Leg., ch. 67, § 1, at 142. Its title read as follows: "An Act to define and prohibit discrimination against persons seeking employment, and to prescribe penalties for the breach of said act." In 1910 the court of civil appeals identified the purpose of this provision as follows:

The statute here under discussion was passed to meet and remedy an evil that had grown up in this state among railway and other corporations to control their employees. It seems that a custom had grown up among railway companies not to employ an applicant for a position until he gave the name of his last employer, and then write to such company for the cause of the applicant’s discharge, if he was discharged, or his cause for leaving such former employer. If the information was not satisfactory to the proposed employer, he would refuse to employ the applicant. They could thus prevent the applicant, by failing to give a true reason for his discharge or blacklisting him, from procuring employment in either instance.

Saint Louis Southwestern Ry. v. Hixon, 126 S.W. 338, 341 (Tex. Civ. App. 1910), rev’d on other grounds, 137 S.W. 343

(Tex. 1911).

In Hixon, the former employee alleged that the corpora- tion’s service letter did not state the true cause of his discharge. The court of appeals affirmed a judgment of
$2,500 for the employee against the corporation, rejecting various arguments for holding the statute unconstitutional. The supreme court reversed on the ground that the former employee had failed to establish that statements in the service letter were untrue. See also Dickinson v. Perry

‘
181 P. 504 (Okla. 1919), aff’d, 259 U.S. 548, 550 (1922); Cheek v. Prudential Ins. Co., supra, at 389.

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As you point out in your letter, the Texas Supreme Court held the service letter provision unconstitutional in Saint Louis Southwestern Ry. v. Griffin, 171 S.W. 703 (Tex. 1914). In Griffin, the court held that article 594, section 3, of the 1911 code interfered with a corporation’s right to discharge employees at will without cause, and accordingly violated the corporation’s freedom of contract under the United States Constitution. It found that the statute violated the equal protection clause of the Fourteenth Amendment of the Constitution. The Griffin case also held that the service letter requirement violated article I, section 8, of the Texas Constitution, which guarantees the freedom of the people to speak, write or

publish their opinions on any subject. The court stated as follows:

The liberty to write or speak includes the corresponding right to be silent, and also the liberty to decline to write. To say that one can be compelled at the instance of another party to do what he has the constitu- tional liberty to do or not is a_ contradic- tion that is not susceptible of reconcilia- tion. (Citations omitted.)

Griffin, supra, at 705. The supreme court concluded that the provision could not be sustained as an exercise of the police power, stating as follows:

The subject of legislation in this statute and its various provisions, as stated above, are purely personal as between the employee and the corporation, and do not directly affect the public, in health, safety, comfort, convenience, or otherwise.

id. at 707.

Within a few years of the Griffin decision, the United States Supreme Court ruled that the Missouri service letter statute was constitutional, finding that it did not interfere with the corporation’s freedom to contract, deprive it of any property or liberty without due process, or deny it the privileges and immunities of citizens or the equal protection of the laws. s ° h ’ 259 U.S. 530 (1922). "The state with good reason might regulate the terms and conditions of employment, including the methods of accepting and dismissing employees, so as to

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prevent the corporations from producing undue detriment to the individuals concerned... ." Id. at 545.

In Attorney General Opinion JM-623 (1987), this office concluded that section 3 of article 5196, V.T.C.S., did not violate the due process clause or the equal protection clause of the Fourteenth Amendment to the United States Constitution. Thus, developments in federal constitutional law since Griffin have shown its reasoning and conclusion on the federal issues to be incorrect.

The Griffin court’s holding that the service letter statute violated article I, section 8, of the Texas Constitution has never been challenged in our court systen. Attorney General Opinion JM-623 (1987), at 5. In addressing this aspect of Griffin, Attorney General Opinion JM-623 stated as follows:

Even though we may disagree with this interpretation, we are not at liberty to modify or overrule the Texas Supreme Court’s holding in Griffin. This is especially true since our legislature and courts have not done so.

Id. at 6.1

1. In 1929, the legislature reenacted article 594 as
   article 5196, V.T.C.S. Acts 1929, 41st Leg., ch. 245, at
2. The emergency clause stated that "the codifiers of the
   Revised Civil Statutes of Texas of 1925, omitted from the definition of discrimination many of the material provisions of the former law on that subject as set out in Article 594 of the Revised Civil Statutes of 1911... ." A prior epinion of this office stated, without mentioning any federal cases, that the codifiers of the 1925 statutes had obviously omitted article 594 because it had been declared unconstitutional in Griffin. Attorney General Opinion 0-3562 (1941) (overruled by Attorney General Opinion JM-623 (1987)). However, the legislature’s reenactment of the provision omitted from the 1925 code could also mean that the legislature was aware of the Prudential case and thought that it had overruled the reasoning of Griffin.

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It is well established that opinions of the attorney

general do not have the force of law. See, e.g., Travis County v. Matthews, 235 S.W.2d 691 (Tex. Civ. App. - Austin 1951, writ ref’d n.r.e.); Gaynor Const. Co. v. Board of Trustees, Ector County Indep. School Dist., 233 S.W.2d 472

(Tex. Civ. App. - El Paso 1950, writ ref’d). As stated in Attorney General Opinion JM-623, we cannot overrule a judicial decision. We can, however, review developments in the law since Griffin was decided, and attempt to predict whether the Texas courts, if faced with this issue in the future, would find that the service letter requirement violated a corporation’s free speech rights under article I, section 8, of the Texas Constitution.

In 1914, when the Texas Supreme Court ruled in Griffin, the First Amendment had not yet been held to be applicable to the states through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652 (1925); Prudential Ins. Co. v. Cheek, supra, at 542-43. Thus, the court could not have based its decision about corporate speech rights on the First Amendment of the United States Constitution. Instead, it followed two state cases that found service letter statutes unconstitutional under the freedom of expression

provisions of their respective constitutions. See Wallace v. Georgia, C. & N. Ry., 22 S.E. 579 (Ga. 1894); Atchison, fT. & S. Fe. Ry. v. Brown, 102 P. 459 (Kan. 1909). In

enti n Oe V ek, the United States Supreme

Court commented as follows on this aspect of Griffin and the Kansas and Georgia cases it relied on:

The cases cited from Georgia, from Kansas, and from Texas place material dependence upon provisions of the several state Constitutions guaranteeing freedom of speech, from which is deduced as by contrast a right of privacy called the ‘liberty of silence’; and it seems to be thought that the relations between a corporation and its employees and former employees are a matter of wholly private concern. But, as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’ ....

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Prudential, supra, at 542-43.2

In a 1983 decision, the Supreme Court of Missouri concluded that the state service letter statute did not violate corporate rights of free speech under the First Amendment. Hanch v. K.F.C. Nat’l Management Corp., 615 S.W.2d 28 (Mo. 1981) (en banc). The court stated:

The statute’s mandate affects corporate rights of free speech no more than the plethora of state and federal statutes and regulations that require corporations to keep the governments to which they owe their existence appraised [sic] of their activities. Few are the cases raising first amendment challenges to tax, corporate or securities laws requiring corporations to speak truthfully. The compulsion to speak truthfully to a former employee would appear to be a small price to pay for the benefits gained by corporations, and their owners, for the enjoyment of their statutory franchises.

Id. at 36.

The Eighth Circuit of the United States Court of Appeals also found the Missouri statute constitutional, reversing a federal district court decision that found it to violate the free speech provision of the First Amendment.

Rimmer v. Colt Indus. Operating Corp., 656 F.2d 323 (8th

2. In Chicago, R. I. & P. Ry. v. Perry, 259 U.S. 548,
   555 (1922), the United States Supreme Court stated that Prudential had overruled the contention that the service

letter statute denied the right of free speech, “upon the ground that the right did not exist under the state Constitution in the absolute form in which it was asserted." It also stated that the "decisions by the Supreme Courts of Georgia, Kansas, and Texas .. . were disapproved." Id. This commentary on state court interpretations of state constitutional provisions is dicta, since the United States Supreme Court looks to the decisions of a state’s courts to

determine the meaning of its laws. See Clay _v. Sun _ JIns. Office, 363 U.S. 207 (1960). This dicta is nonetheless of

interest because it shows how the United States Supreme Court thought about the issue before us.

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Cir. 1981), rev’g, 495 F. Supp. 1217 (W.D. Mo. 1980). The court of appeals noted that in First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court held that speech otherwise protected by the First Amendment does not lose that protection simply because its source is a corporation. The eighth circuit concluded, however, that the First Nat’l Bank decision did not shield corporations from state statutes that require them to make truthful statements or take actions that effectuate legitimate legislative goals. Rimmer, supra, at 328. "There are numerous statutes that similarly, and nevertheless constitutionally, restrict the ‘free speech’ rights of corporate employers." Jd, (citing National Labor Relations Act, 29 U.S.C. § 158(c) (1976); Employee Retirement Income Security Act, 29 U.S.C. § 1132(c) (1976); Missouri Workers’ Compensation Act, Mo.Ann.Stat.
§ 287.380 (Vernon Supp. 1981)). The statute was adopted to protect certain economic and social interests and was properly characterized as economic or social legislation enacted for the general public welfare. Id. at 328-29. It did not affect any "fundamental" First Amendment rights. Id. at 329 (analyzing service letter statute in terms of equal protection clause and First Amendment of the United States Constitution).

Texas cases decided more recently than Griffin rely on a broader conception of the police power than did that case. The Supreme Court of Texas has stated that "the very foundation of the police power is the control of private

interests for the public welfare... ." Town of Ascarate v. Villalobos, 223 S.W.2d 945, 950 (Tex. 1949) (quoting 16 c.J.S. Constitutional Law § 199, at 581). The court has

recognized the validity of legislation that protects employee rights in disputes with the employer. See Construction & General Labor Union v. Stephenson, 225 S.W.2d 958 (Tex. 1950) (picketing). The police power authorizes the adoption of legislation designed to prevent deceitful communications in a commercial setting. “A state statute designed to prevent the deception of consumers of particular goods is recognized as a valid exercise of police power." Majestic Indus. v. Saint Clair, 537 S.W.2d 297, 302 (Tex. Civ. App. - Austin 1976, writ ref’d n.r.e.); see also Clark v. State, 665 S.W.2d 476 (Tex. Crim. App. 1984) (the First Amendment does not protect intentionally false or misleading statements made in a commercial context).

Exercises of the police power that involve restraints on freedom of speech are not for that reason necessarily

invalid. See Allen v. State, 604 S.W.2d 191 (Tex. Crim. App. 1980) (discussing First Amendment of United States

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Constitution). In upholding a provision of the Alcoholic Beverage Code that prohibited solicitation of drinks by a beer retailer’s employee, the court of criminal appeals quoted the United States Supreme Court as follows:

It has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. . .. Numerous examples could be cited of communications that are regulated without offending the First Amend- ment, such as the exchange of information about securities, ... corporate proxy statements, .. . the exchange of price and production information about competitors,

• . . and employers’ threats of retaliation
  for the labor activities of employees.

Id. at 192 (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978)).

The court of criminal appeals quoted the United States Supreme Court in answering an argument based on the First Amendment of the United States Constitution, not article I, section 8, of the Texas Constitution. However, decisions of Texas courts that deal with the Texas constitutional provision also recognize that permissible regulations of conduct may sometimes include regulation of speech. our courts have upheld statutes that require persons to communicate information or that limit some kinds of communications, finding them consistent with article I, section 8, of the Texas Constitution.

In finding that an injunction to prevent untrained layman from advertising and selling blank will forms did not violate article I, section 8, of the Texas Constitution, the court pointed out that constitutional rignts of speech and

publication are not absolute. Palmer v. Unauthorized Practice Comm. of State Bar, 438 S.W.2d 374 (Tex. Civ. App.

• Houston [14th Dist.] 1969, no writ). In a given case
  where the public interest is involved, courts may strike a balance between fundamental constitutional freedoms and the state’s interest in the welfare of its citizens. Id.

The court of criminal appeals has held that a statute

proscribing harassing and threatening telephone calls did not violate article I, section 8, of the Texas Constitution

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or the First Amendment of the United States Constitution. Schuster v. State, 450 S.W.2d 616 (Tex. Crim. App. 1970) (applying Penal Code article 476 (1925)).

In another case, an injunction prohibiting a 40 percent shareholder of a corporation from writing letters to corporate clients asking for assistance in a liquidation suit was upheld as not violative of article I, section 8, of the Texas Constitution. Karamchandani v. Ground Technology, Inc., 678 S.W.2d 580 (Tex. App. - Houston [14th Dist.] 1984, writ dism’d). The injunction was granted to prevent inter- ference to the contractual relationships of the corporation and interference from private communication. Id.

Finally, a recent decision of the court of criminal appeals indicates that the free speech clause of the Texas Constitution does not create an absolute privilege to be Silent. Ex parte Grothe, 687 S.W.2d 736 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 944 (1985). In a prosecution for obstructing a public passageway where the key issue was whether the defendant had chained himself to a doorway during the protest, the defendant sought to subpoena a newspaper photographer who had photographed the incident. The photographer refused to make his photographs available and was held in contempt. The court held that neither the First Amendment of the United States Constitution nor article I, section 8, of the Texas Constitution created a privilege that would excuse the photographer from testifying and producing photographs. Id. at 737.

The Texas legislature has enacted numerous’ statutes that require corporations and others to disclose information to governmental agencies, to employees, or to shareholders. See, e.g., V.T.C.S. arts. 5221b-14(b) (employers prohibited from making false statements or failing to disclose material fact to prevent payment of unemployment benefits), 5221k,
§ 8.0l(a) (record-keeping and reporting requirement applic- able to persons under investigation by Texas Human Rights Commission); Tex. Bus. Corp. Act arts. 2.44 (right of shareholders to examine corporate books and records), 9.01 (corporation, officers, and director shall answer interroga- tories propounded by secretary of state to enable him to determine whether corporation is in compliance with Business Corporation Act); Agric. Code ch. 125 (duty of certain employers of agricultural laborers to make information about their use of toxic chemicals available to employees and others); Health & Safety Code ch. 502 (employers must make available to employees information about certain hazardous chemicals stored or used in the workplace). Thus, a statute

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requiring a corporation to disclose information is no longer the novelty it appeared to be in 1914, when Griffin was decided.

Based on our review of decisions of the Texas courts subsequent to Griffin and the cases on service letters from other states, we believe that the Supreme Court of Texas, if it were to reconsider section 3 of article 5196, V.T.C.S., would find that it did not violate article I, section 8, of the Texas Constitution. Until the supreme court overturns its decision in Griffin, however, section 3 of article 5196, V.T.C.S., will be unconstitutional. Following a judicial decision that a statute is unconstitutional, the statute remains on the books unless expressly repealed by the legislature. 39 Op. [(U.S.] Att’y Gen., 22 (1937). When a court overrules a prior judicial decision that held a statute unconstitutional, the statute will be held valid

from its effective date. Storrie v. Cortes, 38 S.W. 154, 158 (Tex. 1896); see also State ex rel. Badgett v. Lee, 22 So.2d 804 (Fla. 1945); Christopher v. Mungen, 55 So. 273 (Fla. 1911). But see Chavers v. Harrell, 166 So. 261 (Fla.

1935) (state may not prosecute for conduct in violation of statute during time it was held unconstitutional). As we have already stated, an opinion of the attorney general cannot overrule a judicial decision, and therefore cannot validate the service letter statute.

A statute held unconstitutional by the courts does not cease to exist for the purpose of amendment by the legisla- ture. Ex parte Hensley, 285 S.W.2d 720 (Tex. Crim. App. 1956). The Griffin decision does not prevent the legisla- ture from amending article 5196, V.T.C.S. The legislature may update this statute or make the changes, if any, it deems necessary due to the passage of time since its re- enactment in 1929. Attorney General Opinion JM-623 is modified with respect to its discussion of article I, section 8, of the Texas Constitution.

SUMMARY
In Saint Louis Southwestern Ry. v. Griffin,

171 S.W. 703 (Tex. 1914), the Texas Supreme Court held that section 3 of article 5196, V.T.C.S., was invalid because it was inconsis- tent with article I, section 8, of the Texas Constitution. On the basis of judicial decisions of Texas courts and the courts of other jurisdictions, we predict that the Texas

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Supreme Court, if it again considered this question, would find section 3 of article 5196, V.T.C.S., consistent with article I, section 8, of the constitution. Until the Texas Supreme Court overrules its decision in Griffin, however, section 3 of article 5196, V.T.C.S., will be unconstitutional. The

decision in Griffin does not prevent the legislature from amending section 3 of article 5196, V.T.C.S. Attorney General Opinion JM-623 (1987) is modified with respect to its discussion of article I, section 8, of the Texas Constitution.

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 Susan L. Garrison
Assistant Attorney General

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