Can a Texas sheriff make deputies and jailers take random urine drug tests?

Texas AG Opinion JM-1274: Can a Texas Sheriff Order Random Drug Tests for Deputies and Jailers?

Plain-English summary

A county and district attorney in Robertson County asked whether a sheriff could require deputies and jailers to submit to random urine drug testing. By "random," the question meant testing that is not triggered by any particular event, such as suspected criminal activity, an accident, or a citizen complaint pointing at a specific officer. The Attorney General concluded that this kind of suspicionless, random testing would violate the right of privacy guaranteed by the Texas Constitution, at least where the sheriff had offered no compelling reason for it.

The opinion first surveyed the federal picture and found it unsettled. In 1989 the U.S. Supreme Court had upheld drug testing in two specific settings: blood and urine tests of railroad employees after major accidents (Skinner v. Railway Labor Executives' Ass'n) and urine tests of Customs employees seeking promotion to drug-interdiction jobs or jobs requiring them to carry firearms (National Treasury Employees Union v. Von Raab). Neither case involved the purely random testing at issue here. The lower federal appellate courts were split: the Sixth Circuit had struck down department-wide urinalysis of Chattanooga police without individualized cause (Penny v. Kennedy), while the Third Circuit (Policeman's Benevolent Ass'n of New Jersey, Local 318 v. Township of Washington) and the First Circuit (Guiney v. Roache) had upheld random testing of officers who carry firearms or work in drug interdiction. The Attorney General noted a trend toward approving random testing of police but pointed out that the Supreme Court had not yet upheld random testing of any kind, and the narrow 5-4 margin in Von Raab did not guarantee it would.

The Attorney General did not have to resolve the federal question, because he concluded the Texas Constitution independently prohibited the practice. In Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation (1987), the Texas Supreme Court recognized a right of privacy under the Texas Constitution, drawing in part on article I, section 9, which protects people from unreasonable searches and seizures. Under that decision, the privacy right yields only when the government shows that an intrusion is reasonably warranted to achieve a compelling governmental objective that cannot be achieved by less intrusive, more reasonable means. The state court had used that test to strike down a policy requiring mental health employees to take polygraph examinations, even though that polygraph policy had fairly specific, limited triggers.

The Attorney General reasoned that collecting and chemically analyzing urine is at least as intrusive as a polygraph. Urinalysis can reveal private medical facts (whether a person is epileptic, pregnant, or diabetic), and the very act of producing a monitored urine sample invades privacy, points the Supreme Court itself had emphasized in Skinner. If the specific, tailored polygraph policy in the state case could not survive the two-part test, then a sheriff's random urine testing surely could not, especially since the sheriff here had articulated no objective whatsoever. Because the proposed testing satisfied neither prong of the test (no compelling objective, and no showing that less intrusive means would not work), it would violate article I, section 9 of the Texas Constitution.

Currency note

This opinion was issued in 1990. Both federal Fourth Amendment doctrine on suspicionless drug testing and Texas privacy law have developed since then, and public-employer drug-testing programs are often shaped by statutes, collective bargaining, and agency-specific rules. Treat this page as historical context, not current legal advice. Anyone designing or challenging a drug-testing policy should check current law before relying on this analysis.

Who this opinion affected (as of 1990)

Sheriffs and other Texas law enforcement employers: The opinion told them that a purely random, suspicionless urine-testing program for deputies and jailers, unsupported by any stated compelling objective, would run afoul of the Texas Constitution's privacy protection.

Deputies and jailers: These employees gained a clear statement that the Attorney General viewed random drug testing without justification as an unconstitutional intrusion on their privacy under state law.

Government employers generally: The opinion applied the Texas Supreme Court's two-part privacy test broadly, so any Texas governmental body considering intrusive testing of employees was on notice that it needed a compelling objective and proof that no less intrusive method would achieve it.

Common questions

Can a Texas sheriff require random drug tests of deputies with no specific reason?
The opinion says no. Random urine testing not triggered by any incident or suspicion, and unsupported by a compelling governmental objective, would violate the right of privacy under article I, section 9 of the Texas Constitution.

What test did the Attorney General apply?
The two-part test from the Texas Supreme Court's decision in Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation: the government must show (1) the intrusion is warranted to achieve a compelling objective, and (2) that objective cannot be achieved by less intrusive, more reasonable means.

Does this mean all drug testing of Texas officers is unconstitutional?
No. The opinion addressed purely random, suspicionless testing with no stated objective. It did not hold that testing tied to a compelling objective and shown to be the least intrusive available means would fail; and it noted federal courts had upheld some targeted testing of officers carrying firearms or doing drug interdiction.

Did the opinion decide the federal Fourth Amendment question?
No. The Attorney General expressly declined to reach the federal constitutional issue, deciding the matter on the independent ground of the Texas Constitution.

Why is urine testing treated as so intrusive?
The opinion explained that chemical analysis of urine can reveal private medical conditions, and the act of producing a monitored sample itself invades privacy, quoting the Supreme Court's discussion in Skinner and the Fifth Circuit's observation that few activities are more personal than passing urine.

Background and statutory framework

The request asked whether a sheriff's department could require deputies and jailers to submit to random urine drug testing. The Attorney General defined "random" testing as urinalysis not occasioned or triggered by any incident or event, such as alleged criminal activity, an accident, or a public complaint casting suspicion on particular officers.

On the federal side, the opinion canvassed the then-recent U.S. Supreme Court decisions in Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402 (1989) (upholding post-accident testing of railroad employees), and National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989) (upholding testing of Customs employees seeking drug-interdiction or firearm-carrying positions), noting that neither addressed purely random testing. It described the split among the lower federal appellate courts: Penny v. Kennedy, 846 F.2d 1563 (6th Cir.), vacated, 862 F.2d 567 (6th Cir. 1988) (invalidating department-wide testing without individualized cause), against Policeman's Benevolent Ass'n of New Jersey, Local 318 v. Township of Washington, 850 F.2d 133 (3d Cir. 1988), and Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989) (upholding random testing of officers carrying firearms or working drug interdiction); see also Brown v. City of Detroit, 715 F. Supp. 832 (E.D. Mich. 1989), and Weicks v. New Orleans Police Department, 706 F. Supp. 453 (E.D. La. 1988).

Rather than resolve the federal question, the opinion rested on the Texas Constitution. In Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987), the Texas Supreme Court recognized a state constitutional right of privacy deriving in part from article I, section 9 (protection against unreasonable searches and seizures), and held that the right yields only when the government demonstrates that an intrusion is reasonably warranted to achieve a compelling governmental objective that can be achieved by no less intrusive, more reasonable means (id. at 205). That decision struck down a policy requiring Department of Mental Health and Mental Retardation employees to take polygraph examinations, even though the policy applied only under specified conditions (id. at 206). Reasoning that urine testing is at least as intrusive as a polygraph, because chemical analysis of urine can reveal private medical facts and the monitored collection process itself implicates privacy (quoting Skinner, at 1413, which in turn quoted National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987)), the Attorney General concluded the Texas Supreme Court would apply the same two-part test to urine testing. Because the sheriff's proposed random testing stated no objective and thus satisfied neither prong, it would violate article I, section 9 of the Texas Constitution.

Citations

Constitutional authorities:

• Tex. Const. art. I, § 9 (protection against unreasonable searches and seizures; source of the state right of privacy)
• U.S. Const. amend. IV (federal protection against unreasonable searches and seizures; the opinion did not decide the federal question)

Cases:

• Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402 (1989) (U.S. Supreme Court)
• National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989) (U.S. Supreme Court)
• Penny v. Kennedy, 846 F.2d 1563 (6th Cir.), vacated, 862 F.2d 567 (6th Cir. 1988)
• Policeman's Benevolent Ass'n of New Jersey, Local 318 v. Township of Washington, 850 F.2d 133 (3d Cir. 1988)
• Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989)
• Brown v. City of Detroit, 715 F. Supp. 832 (E.D. Mich. 1989)
• Weicks v. New Orleans Police Department, 706 F. Supp. 453 (E.D. La. 1988)
• National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir. 1987)
• Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987) (Texas Supreme Court)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1274
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1274.pdf

Original opinion text

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

December 27, 1990

Honorable Jimmie McCullough
County and District Attorney
82nd Judicial District
Robertson County
P. O. Box 409
Franklin, Texas 77856

Opinion No. JM-1274

Re: Authority of a sheriff to require his employees to submit to random drug testing (RQ-1952)

Dear Mr. McCullough:

You have requested our opinion regarding the authority of a sheriff's department to require its deputies and jailers to submit to random drug testing by means of urine samples.

Drug testing of governmental employees and others similarly situated has been the subject of frequent litigation in the federal courts in recent years, and no consensus has yet emerged on the permissible limitations which a governmental body may place on its employees' Fourth Amendment protection against unreasonable searches and seizures. In Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402 (1989), the Supreme Court, in a 7-2 decision, upheld the Federal Railroad Administration regulations that required blood and urine tests for certain railroad employees following major train accidents or other "incidents." In National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989), the Supreme Court, in a 5-4 decision, upheld urine testing of employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms. Neither of these Supreme Court decisions involved the kind of random urine testing for drugs about which you inquire. For purposes of this opinion, we assume that "random" testing refers to urinalysis that is not occasioned or triggered by any incident or event, such as alleged criminal activity, an accident, or a complaint filed by a member of the public that casts suspicion on one or a group of deputy sheriffs or jailers.

The lower federal appellate courts have considered random urine testing but are divided in their conclusions. In Penny v. Kennedy, 846 F.2d 1563 (6th Cir.), vacated, 862 F.2d 567 (6th Cir. 1988), the court of appeals for the sixth circuit invalidated the city of Chattanooga's mandatory urinalysis testing of police officers on a department-wide basis without reasonable cause or suspicion of individuals. By contrast, the court of appeals for the third circuit upheld random drug testing of police officers in the Township of Washington, New Jersey. Policeman's Benevolent Ass'n of New Jersey, Local 318 v. Township of Washington, 850 F.2d 133 (3d Cir. 1988). Likewise, the court of appeals for the first circuit, in Guiney v. Roache, 873 F.2d 1557 (1st Cir.), cert. denied [citation illegible in scan] (1989), upheld random drug testing by the Boston Police Department of all officers carrying firearms or participating in drug interdiction. See also Brown v. City of Detroit, 715 F. Supp. 832 (E.D. Mich. 1989); Weicks v. New Orleans Police Department, 706 F. Supp. 453 (E.D. La. 1988).

Although there seems to be a trend in the lower federal appellate courts to approve random urine testing of police officers, the Supreme Court has not yet upheld random testing of any kind, and the narrowness of the margin which the majority was able to muster in Von Raab does not inspire complete confidence that the Court will necessarily follow the rulings in Township of Washington and Guiney. We need not address the issue of random testing under the federal Constitution, however, since we believe that the Texas Constitution prohibits the practice.

In Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987), the Texas Supreme Court affirmed the right of privacy under the Texas Constitution, as deriving, inter alia, from article I, section 9, which protects the right of an individual to be "secure . . . from all unreasonable seizures or searches," the same prohibition as appears in the Fourth Amendment to the federal Constitution. The court, declaring that the Texas Constitution protects one's personal privacy from unreasonable intrusion, held that the right of privacy can

yield only when the government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means.

Id. at 205.

In TSEU, the court said that a policy of the Department of Mental Health and Mental Retardation which required employees to submit to polygraph examinations in certain instances[Footnote 1] was an unwarranted "intrusion" and therefore violative of the employee's right of privacy. The intrusiveness of urine testing is of a somewhat different nature from that of a polygraph examination, but in our opinion, the former is at least as intrusive as the latter. The chemical analysis of urine "can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic." Skinner, supra, at 1413. Furthermore, the very

process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests.

Id. In concluding that urine testing "intrudes upon expectations of privacy that society has long recognized," the Court quoted the court of appeals for the fifth circuit in National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987):

There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.

Skinner, supra, at 1413.

We believe that the Texas Supreme Court would likewise conclude that the collection and testing of urine implicates privacy interests protected by the Texas Constitution, and that as a result, a governmental body, in order to require it, must pass the two-pronged test of TSEU: it must demonstrate that (1) the intrusion is warranted to achieve a compelling governmental objective; and (2) that objective cannot be achieved by less intrusive, more reasonable means.

In TSEU, the court found that the department's objectives were not sufficiently compelling to warrant the intrusion. The department's objectives were, however, quite specific:

The polygraph testing was initiated to assist administrators in investigations of four types of situations: patient abuse or neglect; conduct endangering the health or safety of patients or other employees; theft or other criminal activity; use of drugs or alcohol.

TSEU, supra, at 206.

In the situation you pose, no objectives whatsoever have been stated. Since the polygraph examination in TSEU was struck down even when the goals of testing were specific, we believe that, at a minimum, a sheriff's department must have specific demonstrable goals that cannot be achieved by less intrusive, more reasonable means before it can constitutionally require urine testing. As the test you inquire about does not comply with either prong of the TSEU test, neither would it comply with article I, section 9, of the Texas Constitution.

SUMMARY

The Texas constitutional guarantee of privacy would be violated by random urine testing of deputy sheriffs and jailers for the presence of drugs where no compelling governmental objective for the testing has been shown.

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

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

Footnote 1: Under the written policy, an employee could be dismissed for refusing to submit to a polygraph examination only if there existed reasonable cause to believe that (1) an incident of patient abuse or illegal on-campus activity had occurred; (2) an employee had violated departmental rules in connection therewith; and (3) all other reasonable investigatory alternatives had been exhausted including, at a minimum, an interview with the employee. In addition, there were restrictions on the administration of the examination itself.