                                                  +



                                     E        ORNEY             GENERAL
                                             OF        EXAS


A.rr.IKSrS      <+iEZIs.xcI\,*              February 4, 1966


             Honorable Dean Martin                        Opinion No, C-597
             County Attorney
             Grayson County                               Re:    Whether election judges and
             Sherman, Texas                                      clerks may be paid for over-
                                                                 time work in counties under
             Dear Mr. Martin:                                    500,000 in population.

                                 Your request for an opinion reads as follows:

                          "Please let me have your opinion in answer to
                     the following question:

                          "ICan judges and clerks of general, special
                    or primary elections be legally paid overtime for
                    hours worked in excess of 10 hours per day in
                    holding such elections in Grayson County?'

                          "Art. 3.08 of the Texas Election Code as
                    amended by Acts 1965, 59th Legislature, provides
                    for the rate of pay and the determining of same
                    for judges and clerks of general, special and
                    primary elections.   This article provides for
                    overtime pay for such judges and clerks in
                    counties having a population of 500,000 or more,
                    but omits any mention of such pay in counties
                    having a population of 500,000 or less.

                         "Grayson County has a population of 73,043
                    according to the 1960 Federal Census."

                       Article 3.08 of Vernon's Texas Election Code, as
             amended in 1965 (Acts 59th Leg., ch. 678, sec. 3, p. 1554),
             provides:

                         "The pay of judges and clerks of general and
                    special elections shall be determined by the Commis-
                    sioners Court of the county where such services are
                    rendered and, in primary elections, by the County
                                                      -2884-
Hon. Dean Martin, page 2 (C-597)



    Executive Connnittee of the party conducting such
    primary election, but the same shall not exceed
    Twelve Dollars and Fifty Cents ($12.50) per day
    for each judge or clerk: provided, however, that
    in counties having a population of 500,000 or more
    according to the last preceding Federal Census,
    said judges and clerks may each be paid at the rate
    of $1.25 per hour for any time in excess of a day's
    work as hereinafter defined. A judge who delivers
    returns of the election immediately after the votes
    have been counted shall be paid Five Dollars ($5)
    for that service: provided also, he shall make returns
    of all election supplies not used when he makes the
    return of the election.   Ten (10) working hours shall
    be considered a day within the meaning of this Article.
    The compensation of the judges and clerks of general
    and special elections shall be paid by the County
    Treasurer of the county where such service was
    rendered upon the order of the Commissioners Court."

          A review of the legislative history of Article 3.08 is
essential to a proper determination of the legislative intent
with respect to overtime pay for election officers. As enacted
in 1951, when the election laws were codified into the present
Election Code, Article 3.08 read as follows:

          "The pay of judges and clerks of general and
    special elections shall be determined by the Commis-
    sioners Court of the county where such services are
    rendered, and in primary elections by the County
    Executive Committee of the party conducting such
    primary election, but same shall not exceed Ten Dollars
     ($10) a day for each judge or clerk, nor exceed One
    Dollar ($1) per hour each for any time in excess of
    a day's work as herein defined.    The judge who
    delivers the returns of election immediately after
    the votes have been counted shall be paid Two Dollars
     ($2) for that service; provided, also, he shall make
    returns of all election supplies not used when he
    makes returns of the election.    Ten (10) working
    hours shall be considered a day within the meaning
    of this Article.   The compensation of judges and
    clerks of general and special elections shall be

                            -2885-
   .     .




Hon. Dean Martin, page 3 (C-597)



       paid by the County Treasurer of the county where
       such services are rendered upon order of the Commis-
       sioners."

          With ten dollars being fixed as the maximum pay for a
ten-hour working day, it is seen that the maximum rate for both
regular working time and for overtime was $1.00 per hour.  In
1963, Article 3.08 was amended for several purposes but the rate
of pay remained the same. Acts 58th Leg., R,S.  1963, ch. 424,
sec. 11, p. 1030. The pertinent portion of the 1963 amendment
read as follows:

            "In all elections, general, special, or primary,
       by whatever authority conducted, the rate of pay for
       judges and clerks of the election shall be determined
       by the appropriate authority, but shall not exceed
       one dollar per hour for each judge or clerk.
       In precincts where voting machines are used, no
       judge or clerk shall be paid for any period of
       time in excess of two hours after voting has been
       concluded.  * * X"

           The 1965 amendment to Article 3.08 was enacted as a
part of House Bill No. 114, which also amended several other
articles of the Election Code. As originally introduced, the
bill unequivocally provided for an increase in the maximum
hourly rate from $1.00 to $1.25, with no change from the 1963
amendment as to the number of hours for which compensation
could be paid. As reported out of the House Committee on
Privileges, Suffrage and Elections and as passed by the House
with a vote of 114 yeas and 26 nays, the bill provided for an
increase to $1.25 per hour, keeping the limitation that no
judge or clerk in precincts using voting machines should be
paid for more than two hours after voting had been concluded,
and adding the limitation, applicable in both voting-machine
precincts and paper-ballot precincts, that no judge or clerk
should be paid for any period of time in excess of one hour
before voting began.   The Senate Committee on Privileges and
Elections reported out a committee substitute for H.B. 114
which deleted the amendment to Article 3.08, and the amendment
finally enacted was adopted as a Senate floor amendment, along
with one other floor amendment to the committee substitute
 (Senate Journal for May 26, 1965, p. 1855 of the daily journal).

                              -2886-
Hon. Dean Martin, page 4 (C-597)



The House concurred in these amendments by a vote of 120 yeas and
16 nays.

          The normal period during which the polls are open is
12 hours. Art. 2.01, Election Code. Although no statutory limit
is placed on the number of clerks who may be employed at a
polling place (see Art. 3.01), presiding election judges often
find it difficult to procure an adequate number of clerks to keep
the counting of ballots more or less current with the casting of
the ballots during voting hours, and limitations of space, equip-
ment, and other necessary facilities at the polling place often
make it impossible to utilize a sufficient number of clerks to
complete the counting of ballots within a short time after the
polls close even if the necessary manpower is available.   It is
common knowledge that in primary and general elections where
paper ballots are used, the counting of ballots in many precincts
is not completed until the early morning hours, or later, after
the polls close.  Indeed, Articles 8.30, 8.31, and 8.32 of the
Election Code, as amended in 1963, recognize that a substantial
period of additional time is required in some elections, by pro-
viding 24 hours as the limit on the time allowed for completing
the count and delivering the returns.

          Under Article 3.08 as it existed prior to the 1965
amendment, an election officer could receive as much as $12.50
or $13.00 for service rendered before the polls closed (see
Art. 8.02, requiring the presiding judge and a corps of clerks to
begin work at least half an hour before opening of the polls,
and Art. 3.02, authorizing the presiding judge to determine
the length of time that clerks may be absent for meals, etc.).
Where the maximum rate was paid, it was not uncommon for election
officers to be paid up to $18 or $20 for their combined services
during voting hours and after the polls closed.   If failure of
the 1965 amendment to make express provision allowing paymsnt in
excess of $12.50 for total services, rendered in counties under
500,000 precludes payment for overtime service,the amendment in
many instances would effect a substantial reduction in compen-
sation. Yet the history of the bill in the House indicates in
clear terms that this branch of the Legislature interpreted the
Senate floor amendment as authorizing an increase in compen-
sation, harmonious with the action which the House had taken
originally in passing the engrossed bill which it sent to the
Senate.
                            -2887-
Hon. Dean Martin, page 5 (C-597)



          Furthermore. the amendment on its face, when compared
with the 1963 nor-ding and without resort to a knowledge of
conditions as they existed in actual practice, appears to have
the purpose of increasing the compensation of election officers,
and it is reasonable to conclude that both the House and the
Senate so understood the amendment.   The provision stating
that "ten working hours shall be considered a day within the
meaning of this Article" is referable to the provision fixing
the maximum pay at $12.50 "per day" as well as the provision
expressly relating to overtime pay in counties having a popu-
lation of 500,000 or more. The reasonable construction of the
amendment in reverting to a maximum amount "per day" instead
of a maximum amount per hour, and in defining a day as ten
working hours, is that comparable compensation may be paid for
time in excess of ten working hours.   It is our opinion that
this was the meaning of the amendment as the Legislature under-
stood and intended it.

           The lodestar of statutory construction, ascertainment
and effectuation of legislative intent, is aptly characterized
in the following quotation appearing in the early case of State v.
Delesdenier, 7 Tex. 76, 1.06 r3.851):

           "A thing which is within the intention of the
     makers of a statute is as much within the statute
     as if it were within the letter;" "and a thing
     which is within the letter of the statute is not
     within the statute unless it be within the intention
     of the makers."

Accordingly, we hold that in counties under 500,000 inhabitants,
the election judges and clerks may be paid for service in excess
of ten working hours at a rate not to exceed $1.25 per hour.

                        SUMMARY

          Although Article 3.08 of Vernon's Texas
     Election Code, as amended by Chapter 678: Acts
     of the 59th Legislature, 1965, fails to make
     any express provision for overtime pay for
     election judges and clerks in counties under
     500,000 inhabitants, the judges and clerks in
     these counties may be paid for service in

                          -2888-
Hon. Dean Martin, page 6 (C-597)



     excess of ten working hours at a rate not to
     exceed $1.25 per hour.

                                    Yours very truly,

                                    WAGGONER CARR
                                    Attorney General




                                         Mary K. Wall
                                         Assistant

MKW:sj:ra

APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman
Pat Bailey
John Banks
W. 0. Shultz
John Reeves

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




                           -2889-
