Texas Attorney General Issues Opinion to Protect First Amendment Rights of Public Employees

Texas is now the second state in the nation, joining Alaska, to issue an opinion in support of protecting public employees’ First Amendment rights that were restored in the U.S. Supreme Court’s Janus v. AFSCME decision.

Texas Attorney General Ken Paxton’s opinion states that public employers in his state should stop collecting dues from their employees until the employee consents, by clear and compelling evidence, to the deductions.

To be consistent with Janus, at a minimum, the State must ensure that employee consent to a payroll deduction for membership fees or dues in a union or employee organization is collected in a way that ensures voluntariness.

But because state agencies “appear to have no independent method of confirming that an employee knowingly and voluntarily consented to the payroll deduction without any coercion or improper inducement,” Attorney General Paxton suggests the employer collect the dues authorizations directly from each employee.

This assurance could be secured, in part, by requiring that an employee, and not an employee organization, directly transmit to an employer authorization of the withholding.

Attorney General Paxton continues by stating that the consent given by employees should be renewed annually to satisfy the constitutional requirements addressed in Janus because a “one-time, perpetual authorization is inconsistent with the Court’s conclusion.”

While Mr. Paxton’s advisory opinion isn’t binding, it could “raise the political pressure on cities and school districts to update their processes, while providing legal cover from the predictable union attacks,” according to The Wall Street Journal‘s Editorial Board.

No doubt there will be the usual complaints about “union busting.” But to pick a couple of examples: If the Texas affiliates of the American Federation of Teachers and the National Education Association are offering real value for their 64,000 and 68,000 members, respectively, then they should have no trouble getting teachers to sign again on the dotted line. If not, then a dues form that was filled out, say, in the 20th century should be resigned to history.

Last year, Alaska’s Attorney General Kevin Clarkson issued a similar clarifying opinion of the Janus decision, which was followed with an executive order from Alaska Gov. Mike Dunleavy that ordered the state’s government agencies to obtain the clear and affirmative consent of public employees before deducting union dues from their paychecks.

The Center has called on Gov. Walz to follow suit and fulfill his legal obligation as governor by fully restoring public employees’ First Amendment rights in Minnesota.

If you are a public employee whose right regarding union membership has not been honored, please join our community at Employee Freedom MN. We are here to support you!