Tenacious Texas Lawyer Files Interrogatories To Texas Government In McArthur SSN-Religious Accommodation Case

McArthur's lawyer put before the Attorney General, Agriculture Department and the Boll Weevil Eradication Foundation - Admit or Deny:

1.            The Texas Boll Weevil Eradication Foundation (“TBWEF”) is a quasi-governmental agency.

2.            The TBWEF is tasked by the Texas Legislature to “plan, carry out, and operate eradication and diapause programs to eliminate the boll weevil and the pink bollworm from cotton in the state.”

3.            The TBWEF is under the supervision of the Texas Department of Agriculture.

4.            The TBWEF contracted with L&W Flying Service for participation in the Texas Boll Weevil Eradication program during a period between 1997 and 2003.

5.            Plaintiff was employed by L & W Flying Service during the time of this contract. 

6.            The Texas Department of Agriculture required that pilots such as Plaintiff be licensed.

7.            Plaintiff is a licensed pilot.

8.            From 1997 through 2003, the pesticide [fill in the name] did not require a license for application.

9.            Currently, the pesticide [fill in the name] does not require a license for application.

10.        McArthur used the pesticide [fill in the name] in his work as a crop duster with L & W Flying Service.

11.        The Texas Department of Agriculture required that pilots such as Plaintiff be licensed despite that a pesticide which does not require a license for application was being used under the program.

12.        Plaintiff obtained a license as a commercial pesticide applicator in 1997.

13.        Plaintiff’s license remained in good standing from 1997 through February of 2003.    

14.        On February 28, 2003, Plaintiff’s license became subject to renewal.

15.        Plaintiff submitted his renewal application to Defendant Texas Department of Agriculture in February of 2003.

16.        You, in your official capacity with the Texas Department of Agriculture, knew or should have known that the Office of the Attorney General (OAG) determined that a social security number would be required for renewal or licensure as a commercial pesticide applicator.

17.        In your official capacity with TDA, you knew or should have known that the Texas Department of Agriculture, by and through the OAG, determined that a social security number would be required for licensure as a commercial pesticide applicator.

18.        The Texas Department of Agriculture “closed” Plaintiff’s renewal application.

19.        Texas Department of Agriculture “closed” Plaintiff’s renewal application because Plaintiff did not supply a Social Security number. 

20.        You, in your official capacity with the Texas Department of Agriculture, knew or should have known that McArthur requested a religious accommodation.

21.        In your official capacity with TDA, you knew or should have known that Plaintiff requested a religious accommodation, seeking to apply for licensure without disclosing his social security number.

22.        You, in your official capacity with the Texas Department of Agriculture, refused to allow a religious accommodation for Plaintiff, Gene McArthur III.

23.        You, in your official capacity with the Texas Department of Agriculture, referred the instance case to the Office of the Attorney General.

24.        Plaintiff repeatedly asserted to you that he could not provide TDA with a social security number.

25.        Plaintiff repeatedly asserted to you that providing you with a social security number was against his sincerely held religious beliefs.

26.        Plaintiff repeatedly asserted to you that compelling him to provide a Social Security Number for licensure violates federal law and his religious rights as protected by the US Constitution.

27.        Plaintiff repeatedly asserted to you, by and through the TDA, that compelling him to provide a Social Security Number for licensure violates his religious rights as protected by the Texas Constitution.

28.        Plaintiff repeatedly asserted to you, by and through the TDA, that compelling him to provide a Social Security Number for licensure violates federal law and his religious rights as protected under the Federal Religious Freedom Restoration Act (42 U.S.C. § 2000bb).

29.        Plaintiff repeatedly asserted to you, by and through the TDA, that compelling him to provide a Social Security Number for licensure violates his religious rights as protected under the Texas Religious Freedom Act (Tex. Civ. Prac. & Rem. Code § 110 et seq.).

30.        The Tex. Civ. Rem. Code, Chapter 110 explicitly protects religious freedoms. According to Tex. Civ. Rem. Code, Chapter 110, a government agency may not substantially burden a person's free exercise of religion.

31.        Requiring Plaintiff to provide a social security number as proof of identification as  a prerequisite to renewing a license previously granted by the same agency to the same person for the same job kept in good standing is not in furtherance of a compelling governmental interest.

32.        Requiring Plaintiff to provide a social security number as proof of identification as  a prerequisite to renewing a license previously granted by the same agency to the same person for the same job and kept in good standing is not the least restrictive means of furthering any governmental interest.          

33.        The actions of the TDA in refusing to issue Plaintiff a commercial pesticide applicator license on the basis of Plaintiff’s religious beliefs violated Tex. Civ. Prac. & Rem. Code § 106.001(a)(1).  

34.        Under the Federal Religious Freedom Restoration Act (42 U.S.C. § 2000bb), the Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, such as requiring a social security number as an identifier

35.        The Texas Constitution states that “no human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion.”

36.        By requiring Plaintiff to indentify with and disclose government issued numerical identifiers, you interfered with the Plaintiff’s rights of conscience regarding matters of his religious beliefs in violation of the Texas Constitution (Tex. Const. Art. 1, § 6);

37.        According to TDA policy, when an application for renewal has been on file for one year or more an applicant must file an application for licensure as opposed to application for renewal.

38.        On May 1, 2007, Plaintiff filed an application for licensure, a true and copy of which is attached as Exhibit 1.

39.        Plaintiff made a good faith effort to comply with the application’s requirements for identification by filling in the portion of the Application for Commercial Pesticide Applicator License entitled “Driver’s License Number” (Please see documents attached).

40.        Plaintiff passed all requisite testing requirements for renewal or licensure.

41.        TDA recognized that the validity of test results required for acceptance of his license application would expire after a certain period of time passed (exhibit 2).

42.        The Texas Department of Agriculture does not have a rule or policy that automatically renders an incomplete application denied after a certain period of time (exhibit 2).

43.        Plaintiff did not have a basis for administrative appeal because the Texas Department of Agriculture does not have a rule or policy that automatically renders an incomplete application denied after a certain period of time.

44.        In November of 2007, Plaintiff supplemented this application for licensure to reflect a change in his physical address, in an effort to comply with 4 Tex. Admin. Code § 2.4, a true and correct copy is attached as Exhibit 4.

45.        Coincident with the filing of this supplemental application, Plaintiff reasserted his rights as demonstrated by the attached correspondences with the Texas Department of Agriculture (Exhibit 4).

46.        On August 2, 2007, Plaintiff’s attorney requested a religious accommodation, given that Plaintiff’s religious beliefs preclude his having a Social Security number. (Exhibit 3)

47.        Texas Department of Agriculture sent Plaintiff correspondence in response to his application indicating that his application for licensure would not be processed until he provided a Social Security number (A true and correct copy of one such communication is attached hereto as Exhibit 2).

48.        In such correspondences, the TDA stated that if Plaintiff did not submit a Social Security number, his application would be denied.

49.        On December 6, 2007, the TDA stated in a letter to Plaintiff that Plaintiff’s “commercial exam score is valid for only 12 months. Your application will be held pending until March 5, 2008. At that time if you have not submitted the required information, your application will be denied” (Exhibit 5).

50.        On March 5, 2008, Plaintiff’s application was effectively denied.

51.        The Texas Department of Agriculture repeatedly postponed the effective date that his application for licensure would expire (Exhibit 2).

52.        The Texas Department of Agriculture refused to act to either accept or deny his application for licensure.

53.        Plaintiff timely filed a notice of protest on January 7, 2008 (exhibit 6).

54.        Plaintiff timely filed a notice of protest on January 7, 2008 pursuant to 2 Tex. Admin. Code § 2.1(b)(3), based on the Texas Department of Agriculture’s decision refusing to either accept or deny his application for licensure. (Exhibit 6)

55.        On January 10, 2008, Deputy General Counsel for Enforcement at the Texas Department of Agriculture informed attorney for Plaintiff that Plaintiff’s application was incomplete and therefore remained pending. (Exhibit 6)

56.        On or about February 18, 2008, Plaintiff offered his pilot’s license number as proof of identity (exhibit 7).

57.        On or about February 18, 2008, Plaintiff offered his Commercial driver’s license number as proof of identity (exhibit 7).

58.        These offers were rejected on the basis that the Office of the Attorney General stated that Plaintiff must have either a Social Security number or a Texas Driver’s License number and date of birth. (Exhibit 7)

59.        The alternative identifiers of a Texas Driver’s License number and date of birth effectively added an additional residency requirement to the application (exhibit 7).

60.        On March 20, 2008, Plaintiff reasserted his religious rights and notice of protest to the Texas Department of Agriculture (Exhibit 8).  .

61.        Your conduct denying Plaintiff’s application for a renewal license and application for a new license as a commercial pesticide applicator violated Plaintiff’s religious freedom rights, as recognized by federal and state law (exhibit 8).

62.        Plaintiff repeatedly requested a religious accommodation with regard to his applications for licensure based on the provision of the Texas Religious Freedom Act (Tex. Civ. Rem. Code, Chapter 110) and the Federal Religious Freedom Restoration Act (42 U.S.C. § 2000bb), including, but limited to May 1, 2007, May 7, 2007, August 2, 2007, November 29, 2007, January 7, 2008, and March 20, 2008. (See documents attached).

63.        By requiring the Plaintiff to provide a Social Security number, which he does not have, in order to obtain a commercial pesticide applicator license, TDA has substantially burdened Plaintiff’s free exercise of religion.

64.        Plaintiff’s application for renewal has not been granted.

65.        Plaintiff’s application for licensure has not been granted.

66.        When an applicant’s license or renewal is not granted an applicant is entitled to an administrative hearing conducted by the State Office of Administrative Hearings, pursuant to Tex. Agric. Code § 12.0202 (exhibit 10).

67.        Plaintiff was not afforded with the right to an administrative hearing.

68.        TDA did not provide an opportunity for hearing even though the Texas Department of Agriculture refused to grant Plaintiff’s application for renewal of his license.

69.        Plaintiff was entitled to a contested case hearing, as provided for under 4 Tex. Admin. Code § 2.1(b)(3), because the Texas Department of Agriculture did not approve Plaintiff’s application for new licensure, and Plaintiff timely filed a notice of protest (Exhibit 11).

70.        Government efficiency such as enforcing child support obligations with relative quickness or accuracy is not the principal purpose for which governments are instituted.

71.        Securing Mr. McArthur’s religious liberty is a “compelling governmental interest” that substantially outweighs relative administrative conveniences. 

72.        By demanding that McArthur identify with a federally assigned number in order to conduct business, the TDA is seeking to compel conduct that violates specific tenants of Plaintiff’s faith.

73.        The Texas Department of Agriculture’s demand for a Social Security Number is not narrowly tailored to any significant governmental interest.

74.        Section 7 of the Privacy Act (found at 5 U.S.C. § 552a) provides that: "It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number." Sec. 7(a)(1).

75.        The Privacy Act of 1974 states that one cannot be denied a government benefit or service by refusing to disclose a SSN unless the disclosure is required by federal law, or the disclosure is to an agency that has been using SSNs before January 1975.

76.        According to 42 USC 405 (c)(2)(C)(v) and (i), some governmental agencies, including tax authorities, welfare offices, and state Departments of Motor Vehicles, can require a SSN number as an identifier, however, the Department of Agriculture is not named as an agency that may require a Social Security Number.

77.         You are an officer or employee of the state or agency, department, or subdivision of the state.

78.        One of your roles, in your official capacity, involves, directly or indirectly, licensure of commercial pesticide applicators through the Texas Department of Agriculture.

79.        Under the Texas Civil Practices & Remedies Code §§ 106.001(a)(1), an officer or employee of the state or of a political subdivision of the state who is acting or purporting to act in an official capacity may not, because of a person's race, religion, color, sex, or national origin refuse to issue to the person a license, permit, or certificate.

80.        You refused to issue Plaintiff a license because he did not disclose a social security number or Texas Driver’s license Number.

81.        McArthur was not able to legally work as a commercial pesticide applicator with L & W Flying Service because his applications were not granted.

82.        McArthur incurred a loss of over $100,000 in livelihood, his pesticide applicators license lapsed, and he suffered the loss of the application fees.. 

83.        Mr. McArthur has a property interest or right in the occupational license that would otherwise be due him if it was not denied as a sanction against him for adhering to the obligations of his religion.