Untitled Texas Attorney General Opinion ( 2013 )


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  •                              ATTORNEY GENERAL OF TEXAS
    GREG ABBOTT
    April29, 2013
    The Honorable Dan Patrick                          Opinion No. GA-l 003
    Chair, Committee on Education
    Texas State Senate                                 Re: Whether the Texas Constitution prevents
    Post Office Box 12068                              local political subdivisions from recognizing
    Austin, Texas 78711-2068                           domestic partnerships by granting benefits
    previously only available to married couples
    (RQ-1097-GA)
    Dear Senator Patrick:
    You inquire about certain Texas cities, counties, and school districts that "offer some
    form of insurance benefits to domestic partnerships" as part of their employee benefits
    programs. 1 You ask whether article I, section 32 of the Texas Constitution "preclude[s] political
    subdivisions of Texas from providing so-called domestic partnership benefits to their
    employees." Request Letter at 2. Specifically, you inquire about article I, subsection 32(b),
    which provides that "[t]his state or a political subdivision of this state may not create or
    recognize any legal status identical or similar to marriage." TEX. CONST. art. I,§ 32(b).
    The purpose of an Attorney General opinion is to attempt to determine how Texas courts
    would rule on the legal question presented by the opinion request. As the Texas Supreme Court
    has explained, when courts interpret a constitutional provision, the principal goal is to "ascertain
    and give effect to the plain ... language of the framers of a constitutional amendment and of the
    people who adopted it." In re Allcat Claims Serv., L.P., 
    356 S.W.3d 455
    , 466 (Tex. 2011).
    Courts must "presume the language of the Constitution was carefully selected, interpret words as
    they are generally understood, and rely heavily on the literal text." !d. Finally, the Texas
    Supreme Court has instructed that "it is inappropriate to resort to rules of construction or
    extrinsic aids" when the constitutional provision at issue is clear and unambiguous. City of
    Rockwall v. Hughes, 
    246 S.W.3d 621
    , 626 (Tex. 2008).
    The Houston Court of Appeals has ruled that article I, subsection 32(b)'s prohibition on
    the creation or recognition of a legal status similar to marriage is "unambiguous, clear, and
    controlling." Ross v. Goldstein, 
    203 S.W.3d 508
    , 514 (Tex. App.-Houston [14th Dist.] 2006,
    'Letter from Honorable Dan Patrick, Chair, Senate Educ. Comm., to Honorable Greg Abbott, Tex. Att'y
    Gen. at 2 (Nov. 2, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter").
    The Honorable Dan Patrick - Page 2                    (GA-1003)
    no pet.). That being the case, the constitutional text itself is controlling and it would be
    "inappropriate" to consult outside authorities or rules of construction.
    To answer your question, we must first determine whether article I, subsection 32(b)
    applies to Texas cities, counties, and school districts. By its plain language, article I, subsection
    or
    32(b) applies to "[t]his state a political subdivision of this state." TEX. CONST. art. I, § 32(b ).
    The entities you describe-cities, counties and independent school districts-are all political
    subdivisions as a matter of Texas law. Travis Cent. Appraisal Dist. v. Norman, 
    342 S.W.3d 54
    ,
    58 (Tex. 2011). Thus, the plain text of the Texas Constitution makes the entities about which
    you inquire subject to article I, section 32.
    Having first concluded that article I, section 32 applies to cities, counties, and school
    districts, we now address whether the political subdivisions about which you ask have violated
    the constitution by creating or recognizing a "legal status identical or similar to marriage." See
    TEX. CoNST. art XI, § 5(a) (no local entities' ordinances "shall contain any provision inconsistent
    with the Constitution of the State, or of the general laws enacted by the Legislature of this
    State"). On this question, we divide our analysis into two parts. First, we must determine
    whether these political subdivisions have created or recognized a "legal status." If they have, we
    must then consider whether that legal status is "identical or similar to marriage."
    The question whether the political subdivisions have created or recognized a "legal
    status" is informed by the fact that the domestic partnerships at issue are not created or
    recognized under state law. While Texas law uses the term "domestic partnership" to describe a
    type of business entity, no Texas statute establishes or recognizes a domestic partnership as it is
    described in your request or in the briefing submitted to this office. 2 Thus, the domestic
    partnerships about which you inquire are entirely a creation of the relevant political subdivisions.
    By creating domestic partnerships and offering health benefits based on them, the political
    subdivisions have created and recognized something not established by Texas law. The question
    remains whether the status created by the political subdivisions constitutes a "legal status" for
    purposes of the constitution.
    Briefing received by this office contends that the provision of health benefits, standing
    alone, does not constitute the creation or recognition of a legal status. 3 However, the domestic
    partnership benefits programs in question do not simply confer healthcare benefits on a new class
    2
    The term "domestic partnership" is used in the unrelated business context throughout the Business
    Organizations Code, but such references are not applicable here. See TEX. Bus. ORGS. CODE ANN. § 1.002( 17),
    (63)(B), (67) (West 2012) (defining "domestic" and "partnership" for purposes of the Business Organizations Code
    and using the terms together to identify certain types of entities).
    3
    Brieffrom JoAnne Bernal, El Paso Cnty. Att'y at 8 (Jan. 7, 2013); Brief from Karen Kennard, Austin City
    Att'y at 9 (Jan. 10, 2013); Brief from James P. Allison, Gen. Counsel, Cnty. Judges & Comm'rs Ass'n of Tex. at 3
    (Dec. 6, 2012); Brief from Joey Moore, Gen. Counsel, Tex. State Teachers Ass'n at 2 (Dec. 12, 2012) (briefs on file
    with Op. Comm.).
    The Honorable Dan Patrick - Page 3                     (GA-1003)
    of individuals. Instead, these political subdivisions have elected to establish a series of
    requirements that an individual must satisfy in order to be considered a domestic partner by the
    political subdivision. For example, each of the political subdivisions referenced in your request
    letter requires applicants to execute an affidavit swearing that they satisfy the political
    subdivision's domestic partnership criteria. 4 Further, applicants for domestic partnership status
    must provide supporting documentation as necessary. Only if domestic partnership status is
    obtained through this process do the political subdivisions confer health insurance benefits upon
    their employees' domestic partners. Thus, the political subdivisions have defined the criteria for
    the creation of a domestic partnership and established a legal process that must be followed in
    order for that status to gain recognition from the political subdivision.
    In a related context, in the case of Ross v. Goldstein, a Texas court of appeals was urged
    to adopt a "marriage-like relationship doctrine" as an equitable remedy for the surviving partner
    of a same-sex 
    couple. 203 S.W.3d at 514
    . Declining to do so, the court emphasized that article
    I, section 32 is clear, and as a result, a court "may not create such a remedy" because it is
    foreclosed by the Texas Constitution. !d. In the context of your inquiry, the political
    subdivisions in question have created an even more formal legal status than the equitable remedy
    rejected by the court of appeals in Ross v. Goldstein. By establishing eligibility criteria and
    requiring affidavits and other legal documentation to demonstrate applicants' eligibility to be
    considered domestic partners, these political subdivisions have purported to create a legal status
    of domestic partnership that is not otherwise recognized under Texas law. Furthermore, the
    political subdivisions "recognize" that legal status by providing benefits to individuals who attain
    that status. 5
    We next address whether the domestic partnership legal status created by the political
    subdivisions is "similar to marriage" and therefore not permitted by the Texas Constitution.
    TEX. CONST. art. I,§ 32(b). While the Texas Constitution does not define "similar," the courts of
    this state have explained that the common meaning of "similar" is "having a likeness or
    4
    See Letter from Sylvia Borunda Firth, El Paso City Att'y, Exhibit B (Dec. 6, 2012) (City of El Paso
    Domestic P'ship Affidavit) (on file with Op. Comm.); City of Fort Worth, Affidavit of Domestic P'ship,
    http://fortworthtexas. gov/up loadedFi les/Human_Resources/Employee_Information/Benefit_Information/Domestic%
    20Partnership%20Affidavits.pdf; City of Austin, Domestic P'ship Affidavit & Agreement, http://www.austintexas
    .gov/sites/default/files/files/Employment/DomesticPartnerAffidavitAgreement.pdf; City of San Antonio, Domestic
    P'ship Affidavit & Agreement, http://www.sanantonio.gov/hr/employee_information/benefits/pdf/DOMESTIC_
    PARTNER_ENROLLMENT%20PACKET.pdf; El Paso County, Affidavit of Domestic P'ship, http://home
    .elpasotexas.gov/human-resources/risk-managment/documents/health/DomesticPartnerAffidavit.pdf; Travis Cnty.,
    Declaration of Domestic P'ship, http://www.traviscountyclerk.org/eclerk/content/images/pdf_tc_rec_Declaration_
    of_Domestic_Partnership. pdf; Pflugerville Indep. Sch. Dist., Affidavit of Domestic P'ship, http://cms.pflugervilleisd
    .net/cms/lib/TXO I 00 1527/Centricity/Domain/93/Domestic%20Partnership%20Affidavit.pdf (last visited Apr. 18,
    2013).
    5
    We need not determine whether providing health benefits, standing alone, might create or recognize a
    legal status in contravention of article I, section 32, because the political subdivisions in question have gone well
    beyond the mere provision of health benefits.
    The Honorable Dan Patrick - Page 4                    (GA-1003)
    resemblance" and having "characteristics" in common. Prudholm v. State, 
    333 S.W.3d 590
    , 594
    (Tex. Crim. App. 2011) (citing THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
    1782 (2d ed. 1987)); Tex. Att'y Gen. Op. No. H-1129 (1978) at 4. The term "domestic
    partnership" is commonly understood to mean "a relationship that an employer or governmental
    entity recognizes as equivalent to marriage for the purpose of extending employee-partner
    benefits otherwise reserved for the spouses of employees." BLACK's LAW DICTIONARY 558 (9th
    ed. 2009); see Traxler v. Entergy Gulf States, Inc., 
    376 S.W.3d 742
    , 747 (Tex. 2012) (resorting
    to the same dictionary to determine the common meaning of a term).
    The political subdivisions referenced in your request letter have each established slightly
    different criteria to determine whether applicants qualify for domestic partnership status. A
    commonality among all of the political subdivisions, however, is that they use criteria usually
    associated with marriage. For example, the Family Code prohibits a county clerk from issuing a
    marriage license to a person who is presently married, related to the other applicant within a
    certain degree of consanguinity, or under 18 years of age except in limited circumstances. TEX,
    FAM. CODE ANN.§§ 2.004(b)(5)-(6), .009(b), .101 (West 2006 & Supp. 2012). Similarly, every
    political subdivision that you reference requires that applicants for domestic partnership status
    attest that prior undissolved marriages, consanguinity, and age would not operate to preclude
    them from marrying under state law. 6 Thus, the domestic partnership criteria established by
    these political subdivisions have various characteristics in common with the criteria for marriage,
    and the domestic partnership status resembles marriage in these respects. Applying the ordinary
    definition of "similar," a court is likely to conclude that the domestic partnership legal status
    about which you inquire is "similar to marriage" and therefore barred by article I, section 32 of
    the Texas Constitution.
    Briefs we received in response to your request suggest that the legislative debate on
    article I, section 32 in the Texas House of Representatives reflects a "clear legislative intent" to
    the contrary. 7 Representative Chisum, the author of the constitutional amendment, stated the
    following on the House floor:
    This amendment to the Constitution would not negate or set aside any
    contract that an employer wanted to make with his employee. . . . It
    does not change what a city might do. It just says that they won't
    recognize anything that creates the same legal status identical to or
    similar to marriage. It does not stop them from providing health
    benefits to same-sex partners. It is not intended to do that.
    6
    See sources cited supra note 4.
    7
    Letter from Scott Houston, Deputy Exec. Dir. & Gen. Counsel, Tex. Mun. League at 2 (Dec. 17, 20 12);
    see also Letter from Karen Kennard, City Att'y, City of Austin at 5 (Jan. 10, 2013) (briefs on file with Op. Comm.).
    The Honorable Dan Patrick - Page 5           (GA-1003)
    Debate on Tex. H.R.J. Res. 6 on the Floor of the House, 79th Leg., R.S. (Apr. 25, 2005) (tape
    available through Office ofthe House Comm. Coordinator). Representative Chisum's statement
    simply explains that article I, section 32 does not, in his view, address whether a political
    subdivision may provide health benefits to the unmarried partner of an employee. The
    constitutional provision does, however, explicitly prohibit a political subdivision from creating
    or recognizing a legal status identical or similar to marriage. The political subdivisions you ask
    about have not simply provided health benefits to the partners of their employees. Instead, they
    have elected to create a domestic partnership status that is similar to marriage. Further, they
    have recognized that status by making it the sole basis on which health benefits may be conferred
    on the domestic partners of employees.
    As other briefing submitted to this office observed, the United States Supreme Court has
    granted certiorari in two cases addressing state and federal laws that define marriage as it is
    defined in article I, section 32 of the Texas Constitution. See Windsor v. United States, 
    699 F.3d 169
    , 187-88 (2d Cir. 2012), cert. granted, 
    81 U.S.L.W. 3333
    (U.S. Dec. 11, 2012) (No. 12-307)
    (addressing the federal Defense of Marriage Act); Perry v. Brown, 
    671 F.3d 1052
    , 1067-68 (9th
    Cir. 2012), cert. granted, Hollingsworth v. Perry, 
    81 U.S.L.W. 3075
    (U.S. Dec. 7, 2012) (No.
    12-144) (addressing California's constitutional amendment defining marriage). The Supreme
    Court heard argument in these cases on March 26 and 27, 2013 and will likely render a decision
    before the Court's current term ends in June of this year. Those cases involve issues of federal
    constitutional law that are beyond the scope of your question about the meaning of the Texas
    Constitution. Depending on the outcome of those cases, however, the Court's decision could call
    into question the enforceability of article I, section 32 under the United States Constitution.
    The Honorable Dan Patrick - Page 6          (GA-1003)
    SUMMARY
    Article I, section 32 of the Texas Constitution prohibits
    political subdivisions from creating a legal status of domestic
    partnership and recognizing that status by offering public benefits
    based upon it.
    DANIEL T. HODGE
    First Assistant Attorney General
    JAMES D. BLACKLOCK
    Deputy Attorney General for Legal Counsel
    VIRGINIA K. HOELSCHER
    Chair, Opinion Committee
    Virginia K. Hoelscher
    Assistant Attorney General, Opinion Committee
    

Document Info

Docket Number: GA-1003

Judges: Greg Abbott

Filed Date: 7/2/2013

Precedential Status: Precedential

Modified Date: 2/18/2017