Attorney General Ken Paxton today issued a legal opinion in response to a request by Texas Rep. Briscoe Cain regarding the application of the United States Supreme Court’s Janus decision to payroll deductions permitted by the Texas Legislature. In Janus, the U.S. Supreme Court found that an Illinois statute requiring public employees “to subsidize a union,” even when they chose not to join and objected to the union’s positions, violated the First Amendment.  

The opinion reaches a number of conclusions about the application of Janus to payroll deductions for payment, membership fees, or dues for public sector unions and other eligible organizations. First, the State must ensure that public employees consent to a payroll deduction and that fees or dues are collected in a way that ensures voluntariness, such as requiring that the employee, not an employee organization, submits authorization of a payroll deduction to their employer. This is necessary because, according to the Supreme Court, a waiver of First Amendment rights “cannot be presumed,” but rather “must be freely given” as shown by “clear and compelling evidence.”  

Second, while Janus doesn’t compel specific language, employees should be provided with notice that a consent to membership waives their First Amendment rights and that they may revoke their consent at any time.  Third, once given, consent to payroll deductions cannot be perpetual; rather, it must be renewed on a regular basis, such as within one year after being given. 

 Read a copy of the opinion here.