                 December 28, 1966


Honorable Henry Wade         Opinion No. C- 792
District Attorney
Dallas County                Re:   Whether a county employee may
Dallas, Texas                      receive pay for working as an
                                   election clerk on a holiday,
                                   and also receive hid regular
                                   salary for that day; and a
Dear Sir:                          related question.

          You have requested an opinion on the following:two
questions:

         Question No. 1: Can a regular employee of
    Dallas County whose elected department head is
    not on the ballot, be paid for services perfoamed
   .~.
    as an election clerk in the last general election,
    whiqh was a.county holiday, and also receive his
    re@alar county salary for that day?

           Question No. 2r, Can regular employees o,fthe
     Dallas County Clerk's office be paid for working
     after  hours for taking in election returns and
     delivering the absentee ballots?

           You have excluded from your question those employees
who would be disqualified to serve .as election clerks because
of the prwision   in Article 3.03 of the Texas Election Code
which disqualifies any person "Who is employed by any candidate
for a lucrative office, whose name appears on the ballot in
that election."

          Article 3.04 of the Election Code prwides that
"no one who holds an office of profit-or trust under * * *
this atate * * * shall act aa judge, clerk, or watcher of any
election, general, special, or primary." Persons holdihg
certain positions in gwernmental service are classifies  as
officers. while persons holding other positions are classi-
fied as mere employees. This distinction and the criteria
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Hon. Henry Wade,   page   2   (C-792)




for classification are discussed in cases cited in the
footnotes to 47 Tex.Jur.2d 13, Public Officers, Sec. 3. The
disqualification in Article 3.04 of the Election Code applies
only to those individuals who are classified as officers.
Att'y Gen. Gp.~G-2056 (1940). You have not statea mat positions
are involved in your opinion request. Since the status of each
position must be determined on the basis of its own character-
istics, we cannot say whether the individuals Involved.in your
first question were or were not eligible to serve as election
clerks, but for your information we tre attaching copies of
Opinion O-2056, supra, and Attorney General's Opinion O-384
(1939), which discuss the status of a number of different
positions. As a loosely stated general rule, ordinarily per-
sons holding positions as deputies in the various county offices
are classified ~a8 officers; those in other types of ,positions
are classified as mere employees.

           The day of the general election is a state holiday
on which~-countyoffices may be closed. Arts. 4591, 237211,; and
2372h-1,..V.C.S. For a county emplbyee,eligible to serve as an
election clerk, we.are  not aware of any constitutional provision,
statute, or legal principle,which woulclprevent his being paid
under Article 3.08 of the Election Code for servicesperformed
on.a holiday when county offices are closed or at any other time
'which doss not conflict with his working hours as a county em-
ployee. Article   XVI, Section 40 of the Texas Constitution, pro-
hibiting dual officeholding, is not applicable, since neither
the regular employment of the person nor his service as an
election clerk places him in the category of an officer. Al-
though the term "election officers" is frequently used in re-
ferring to the judges and clerks of an election, th8 character-
istics of an election clerk's services do not make him an officer
as the term is used in this section of the Constitution.

          Nor is payment for these services contrary to Article
XVI, Section 33 of the TexasConstitution. which prohibits the
accounting officers of the State from drawing or paying a warrant
upon the Treasury as salary or compensation to anyone who at the
same time holds any other office or position of honor, trust or
profit under this State or the Unitea States. As used in this
section, the word "Treasury" means the State Treasury. Att'y Gen,
Ops. O-4982 (1942) and WW-1316 (1962). Whatever might be the
effect of this prwision on individuals who are paid from the
                         -3801-
Hon. Henry Wade, page 3    (C-792)



State Treasury, it:~isnot applicable to individuals who are paid
from other public funds. In the present instance, payment for
each service would be made from funds in the county treasury.

           Your second question is whether employees in the County
Clerk's office ,znaybe paid for working during hours that they
are not regularly required to k2 on duty, in performance of serv-
ices which the County Clerk is required by law to perform and
which by their nature cannot be deferred until regular working
hours. Tex. Election Code: Art. 5-05, subaivs. 4, 5, and 6;
Art. 7.14, Sees. 7 and 18; Art. 8.25:  Art. 8.30; Art. 8.,32.

          The Commissioners Court of Dallas County has authority
to fix the salaries of the employees In the County Clerk's office,
and to regulate the92 hours of work. Vernon's Texr Civ. St.: .
Art. 3912e-4a, Sec. 4; Art. 3912e-4b; Art. 3912e-4d, Se& 9.
There is no statute or other rule of law which would prevent the
Comissioners Court from authorizing additional pay for these
extra services. Cn the other hana, there is no provision of law
which would compel the granting of additional pay. It is within
the discretion of the Conmissionera Court to deciae whether the
employees are allowed additional pay, are given compensatory
time off, or are required to perform these services as an inci-
dent to their regular employment without additional pay or com-
pensatingtimec

                      SUMMARY

             Persona holding certain positions in governmental
      service are classified as officers while parsons ,
      holding other positions are classifies as mere em-
      ployees . A person who is merely an employee in a
      department of the county government is not disquali-
      fied from servdng as an election clerk in a general
      election.     He may be paid for services performed as
      an election clerk on a holiday when the county office
      was.closed a&may      also receive his regular county
      salary    for that day. Tax. Election Code, Arts. 3.04
      and 3.08.

           It is within the discretion of the Coxsnissioners
      Court of Dallas County to aeciae whether regular em-
      ployees of the Dallas County Clerk’s office will be
                          -3802-
Hon. Henry Wade, page 4       (C-7921



    given pay in addition to their regular salary for
    working after hours in performance of duties which,:
    the County Clerk's office is required to perform ..'
    in connection with an election.

                                   Yours very truly,
                                                   ,..
                                   WAGGONER CARR
                                   Attorney General


                                               w. -zi,e
                                   By:Mary K. Wall
                                        Assistant

MKW:ra

APPROVED
OPINION COWMITTEE:

W. 0. Shultz, Chairman
John Reeves
Pat Bailey
John Banks
Ralph Rash

APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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