Texas Attorney General Opinion: GA-0695 Page: 2 of 4
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The Honorable Frank J. Corte, Jr. - Page 2
Before we consider the substantive issues you raise, we note that at least two briefs submitted
to us contend that the instant request is not one that may properly be answered by the attorney
general because it is "a speculative proposal without concrete language."2 Statutory law requires the
attorney general to "issue a written opinion on a question affecting the public interest or concerning
the official duties of the requesting person." TEX. GOV'T CODE ANN. 402.042(a) (Vernon 2005).
The question you present here is clearly a matter "affecting the public interest." And because you
are a member of the Legislature seeking guidance about potential legislation, this question
indisputably relates to your official duties.
Other state legislatures and local governments have enacted legislation similar to that about
which you inquire.3 In your request, you explain that an Arizona state law (the Legal Arizona
Workers Act) "prohibits an employer from intentionally or knowingly employing an unauthorized
alien." Request Letter at 1; 23 ARIz. REV. STAT. ANN. 23-212(A) (2008). That statute (the
"LAWA") requires the Arizona attorney general to "prescribe a complaint form for a person to allege
a violation of subsection A." 23 ARIZ. REV. STAT. ANN. 23-212(B) (2008). On receipt of such a
complaint, either the attorney general or a county attorney is required to conduct an investigation into
the facts alleged in the complaint. See id. In the course of that investigation, the attorney general
or the county attorney must "verify the work authorization of the alleged unauthorized alien" on the
basis of the I-9 Form Process heretofore described. Id. If the investigation reveals that the complaint
is not "false and frivolous," the attorney general or county attorney is required to notify the United
States immigration and customs enforcement bureau as well as a local law enforcement entity. Id.
An action for a violation of subsection A must be brought "against the employer by the county
attorney in the county where the unauthorized alien employee is or was employed." Id. 23-212(D).
The statute prescribes the punishment for first and second-time violations of subsection A.
Id. 23.212(F)(1). For a second violation, "the court shall order the appropriate agencies to
permanently revoke all licenses that are held by the employer specific to the business location where
the unauthorized alien performed work." Id. 23-212(F)(2). The LAWA makes clear that the
determination of whether a person is an unauthorized alien must be based solely on "the federal
government's determination" under the I-9 Form Process. Id. 23-212(H).
In Arizona Contractors Association, Inc. v. Candelaria, the court held that the LAWA was
not preempted by federal law because it was a licensing measure that fell within the savings clause
of the IRCA's preemption provisions; that it was not impliedly preempted by the IRCA; and did not,
on its face, violate an employer's right to procedural due process. Ariz. Contractors Ass'n, Inc. v.
Candelaria, 534 F. Supp. 2d 1036 (D. Ariz. 2008). The court declared that "if the [LAWA]
2See Brief from Luis Figueroa and Lisa Graybill, on behalf of the Mexican American Legal Defense and
Educational Fund and the American Civil Liberties Union Foundation of Texas at 1 (Sept. 30, 2008) (on file with the
Opinion Committee); see also Brief from Susan Denmon Gusky, Vinson and Elkins, on behalfofthe Texas Association
of Business (Oct. 3, 2008) (stating that the request "asks you to speculate regarding the constitutionality of hypothetical
legislation, the provisions of which are described only in vague and very general terms") (on file with the Opinion
Committee).3See infra note 4.
(GA-0695)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0695, text, February 26, 2009; (https://texashistory.unt.edu/ark:/67531/metapth275591/m1/2/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.