.   ,




        WHENMAILPlG A COPYOF V-1475     ALWAYSENCLOSE
        COPY OF V-1532

                         Mary K. Wall
Ron. Stewart W. Hellman l .’
Criminal District   Attorney
Tarrant Counti .. I
Fort Worth, Texas..     L




Dear Sir:              ’
               Y&u   have    requested       that    this    office     review        .,::~,,;,:"~~'~~~;-'::...,
                                                                                                   %:IJ :.Ii',,
                                                                                                             1
the holding b Attorney General 1s Opinion 0-62u               (19&b), ‘,,:~~~:.,‘:?‘~j.‘:i’:~~~;               ::::~
In the light of court decisions        whlch’have been ren-                    :' .,$$J  :~+?;:'1;q:,.             i

dered since the opinion was written.          mat    opinion      held :~   ‘I’!,$&;; :,;;:   :1;: :,,,j~1:;t~“:~,
                                                                                                               7’i
unconstitutional     the portion of Article      209, Vernon’s 1,;~:         .;.,:,!,,
                                                                                  $;I! ‘,,,; :,::,,’
                                                                                                  ~‘,,;.
                                                                                                       ..:,:,:i.,:,:I
Penal Code, which ‘makes it unlawful for an employer to,.‘;::“;, ,<,;;,I.:‘,.‘::,“‘~,                     : .::,,:,:,
subject an employee to a deduction of wages because of,,;: .‘,..J,: I, “;~ K_‘i, ,f
the exercise     of the privilege    of attending    the polla,, y;,::,;,   :~:~~~,~$j~:~:.j:i,,.;
                                                                                                 :,.,::;:: I,,.:;$
The full language of Article        209 IS as followar             .:,i’:; :.: ;,L~,::,)          :..’:> ‘:,‘~
   1                                                      ,.~,.. ,~;          ”    ,:tv’.,’. .~~~~~&!
                                                                                          ,~?                  ,I,‘,:
                                                                   ,,,,,:
                                                                       .,‘?j;!‘~                 ;,,.‘.y*,‘ ” ,,:i,,‘:
             9hoever    refuses   to an employee en-       ~.




            This statute was orlglnallp
of the Terre11 Election      Law of 1905.    During
Years since Its enactment, the statute         has never
before an appellate     court for construction     or
tion.    Opinion O-6242 held that the portion of
ute making it an offense for an employer to refuse                               an
employee the privilege      of attending
Similar provisions    in statutes    of
f OWLy   been upheld against oonstitutional       attacks.
cases cited &&gg.       In holding invalid
&ticle    209 which prohibits     an empl,oyer
from an employee 1s wages for time
attending the polls,     the opinion
xy. 632, 28:: ~$7tje$&$?’             ,&t~”
the court held that a Kentuck;        statut




majority   and dissenting  opinions     In St
s.,                240 S.W.26 886     (MO.     &?b&
                                                           .,;,
                                                            .,,:,,
                                                                '!..
                                                                   ~\\'7 C'~."
                                                                            i.   .
                                                      .,         .:/
                                                             ~~     :I,,: ,.,.
 .

                                                                                                                        ‘,I
                                                                               .                                    ,,; ‘:
Bon. Stewart        W. Hellman,        page 3       (V-1475)        ~,                       5l.w
                                                                                                                    i.: :‘.
                                                                                                          ,‘..,,.   !   ;:

                                                                  2b s.w.
              In State V. Day-Brite Lirrhting, I
2d 886 (MO. Sup. 1951), the SUpreme           COUrt    O?ilSSOUd.
upheld the constitutionality          of a Missouri statute           mak-
ing it a misdemeanor for any person or corporation                    to
ffcause any employee to suffer any penalty or deduction                               :~~; :                        _,‘1
of wages” because of the exercise           of the privilege          of                                                 t
                                                                                      :i);.~,,                           ,
absenting himself from his employment on election                   day.                                                 I
The Missouri statute        contained further provisions            with
respect to the time during which the voter was entitled
to be absent from work; but so far as the immediate ques-
tion is concerned, we are unable to perceive                 any ground
of distinction     between, the Missouri statute            and the Texas
statute.      The majority opinion held that political                wel-
fare Is within the protection          of the po3ice power of a
state Andythat the statute         in question did not violate
the due process, “equal protection3          or impairment of obll-.
gation of contract clauses         of either the state or federal
constitution.      Upon review      of that decision        in Day-Britq
Llqhtln       In   v St tq, 72 s.Ct. 405 (19521, the Supreme                          :i,‘~ ‘:‘,‘, :
Court or&theC&ied         ztates   held that the Missouri            statute       j .*:,“J: ?,. ,“,‘I“,~
did not violate      these ‘clauses In the Federal Constitutlon..~                 ,: $~Y’~.‘::{_il;:.
                                                                                                    ..,:
The majority opinion stated that the law, which was “de-                          .,,:,.>,;:
                                                                                          ,:        ~~,~‘X(,
S igned to eliminate        any~ penalty for exercising           the right        ;.:?$ ~:,‘~.?-:”        I’.~
of suffrage and to remove a practical            obstacle        to getting:.         $~.:.~,,:~!: ;.:I,:::“i‘.
out the vote,” came within the police ,power for the pro-                          :’~~;,~~“‘.,‘;:~,.,_,::,.
                                                                                                           :,
tection of the public welfare,          which included the politi-                    ‘;.,:;!,’  : ;,-: ; ~.,
cal well-being      of the community.      In the oourse of.. the. ,..I,.:: J$:j,<:            ,,i:.~:‘.~;,;,‘1.,..;
                                                                                                                  \,;,-:,
opinion the court said:          88Extreme cases are oonjured up :,, ~~;.;~::$j’                ”:i’j$,:
                                                                                                      :~      ‘,,..)!‘
                                                                                                                     :I:,
where an employer is required to pay wages for a period.: ~:,, 1;;                       ‘, :~‘:.;, : :.,:, F,..,,
that has no relation       to the legitimate        end.     Those cases         : : ~~~~~,~:~~,~~; ::::::~:,.~,
                                                                                                               ~,:f,;,,
can await decision       as and when they arise.11                            ‘.. ><‘     ‘::
                                                                                            : ,, I “:,:,,,;: (
~
 c&-i&   Han: St,ewart W. Hellman,           page 4      (v-.1475)


         Article  I, Section 3 of the Texas Constitution,     declar-                       ~‘I,:;,
                                                                                               ,:.{I. ,:!::I.!
         ing that all free men have equal rights      is comparable                               ,: ., ;I$,,.1’.
         to the equal protection    clause of the 16th Amendment,                            :, ,:j~. %<,,:
         and the I due course of law” provision    of Section 19 of ;                        :, “. ,~il;iP;
         Article  I corre$ponds to the due process clause of the                            ‘.,.. .:, ‘, .$,,.,,
                                                                                                              .>.I
                                                                                                                 :
         14th Amendment., We are not cognizant      of any other pro-                        ‘,~~ ~’       ::G,,;
         vision in the Texas Constitution     which mlght be Invoked                         ‘~ ”3 ,,i,,‘.::
         against the validity    of the statute.                                                         :”~?‘
                                                                                                             ‘?,:
                                                                                                               .I

                       In undertaking a reconsideration          of the hold-
         ing in Opinion 0-6242, we are confronted with the matter
         of evaluating     the, ,persuasZveness    of a decision      by the
         United States Supreme Court in regard to a question aris-, ,:,                              1 “1’
         ing under the Federal Constitution            when a similar       ues-.
         tlon is raised under the correspon&.ng provisions               oj the’ :~,~;‘~:‘~~‘~
         Texas Constitution.                             ,                 ;,,           :.j,-.;,,., 3I
                                                                                         “Iris.. ‘; 4
                      Unquestionably     it is the right of the state,,                   “’ - ,. f
         courts to construe the constitutions           of their own states,              :,:,:::l.~’z
         and in ‘the present case we have no doubt that the courts                        :‘i$‘:~‘ : ~,
                                                                                                      : .~
         of Texas would not be compelled to place the same con-,                        ‘,j’,,;.~:,
         struction     on the Texas Constitution       as the United States              ,::;i:i, !t,‘,
         Supreme Court has placed on the Federal Constitution.                   ”         ‘:
         See 21 C.J.S.,      Courts, 6 204; 35 C.J.S.,         Federal Cou’rt’s,” ~-.;.r,~‘,‘:.‘-
         li 171, and cases there cited.          Nevertheless,     the per-                 ‘;::Y’‘   j2~,
         suaslveness     of the decisions     of other tribunals       on ques-
         tions of first      impression in the state court cannot be                         :         ‘,
         Ignored.      The attitude    of state courts toward the deoi+                                i ‘I,
         sions of federal courtsr is summarized in the following                    ,~‘,~ ,‘?‘:..: ;,!L.
         quotation from 21 C.J.S.,         Courts, a 205;                                      ‘,,~..“i
                                                                                                 ~.,, ~~
                                                                               ,
                       “In cases not arising      upon the construe-         “* ,: “’
                tion of the constitution       and laws of the             ~,.J,~’ ‘7       ,i’,
                federal   government, but in which the state                   ,’:.:,,;
                courts have full jurisdiction        and their judg-,        :‘:‘:‘:                   i,,
               ments are final,       such courts will adhere to              : “’                     :,
                and follow their own decisions         and are not            ‘7 :,~                  .A
                bound by those of the federal         courts9 although        ,,,‘,:. 1~ :‘.,,I::‘.i. _

            y   The courts c>f this State in innumerable cases have
         treated the equal rights and due course of law clauses of
         the Texas constitution     as being identical  in scooe with,
         the eaual motection      and due process clauses of kha 14th
          fimendrr;ent.- See Babce v.
         676 680 (19x5).        utv
         2d 496 (1937) * ix Carte                                                           ,

         S.W.26 134 (1828). R bo
         ~(Tex- C~V. A p. 1#2#      16
         6 5Q2, p. 9883 a.,      6 568,
   :                                                                                                        .‘.:;: ,. .


Hon. Stewart        W. Hellman, .page..!i;.. ;(ll-5475).              .i,     i    . . . . :.
                                                                                                  ‘;p,,;,             : ;.j:f:,


       such decisions       .are. persuasive;     and the            ,;
       decisions     of ,.a state court of’ last resort            ; ;
       upon a questlon’asto           which Its judgment
       Is final will. be adhered to-.and followed                 “.‘:,
       bye the .lower courts of that state,              even , .‘..~z
       though it is in conflict           with a decision
       of the supreme court of the United States. I’..~::
       Accordingly      the state courts are free to
       decide, for themselves         all questions       of                                         ,~‘:m
                                                                                                         ( )“,.,,‘,~
       the constructi.on       of’state    constitutions’.        ~. “. ..,
       and statutes,:,.    ,h. exception      t@ .t,his rule.        .‘:,i‘?:          ~.       .‘.‘,-:j
                                                                                                       :“,,:‘~..,
                                                                                                                r: ‘!:f
       has been made, however, where the federal                                         .:<  ,, I T,.” ,” ‘:.~,’
       supreme, court .~has decided that it is neces- ~ 1’ (                                        ‘,I ,,
       sary to~‘construe a state statute              i’n a cer-           :/,fi.
       tainway     to prevent its being violative               of           -
                                                                          ,_,,,.,
       the federal constitution;           and where the                    ,.p
       question presented is as to the construe-                               ’
       tion or vio3ation         of a provision       of the
       state constitution         which is similar to a                            ,. ..,.,
       provision     of the federal constitution,             and                     ‘.,.::’ ,, “‘,b.  ‘,’.,,,
                                                                                                             ;’ ,.:e ; .,,
       the same question has been decided by. the                            ,, ,:,‘~,,:;~.T,.      ,y .,,
                                                                                                 ‘, ,:.:,, ,~ :,  .’;:..,, ~~.,.:,~,:
       federal    supreme court with respect to the                              ~~ : ,,,,.,,’
                                                                                            3.;~       ,-I.‘;., _:
       federal constitution,          the federal decision                                       .:;!)‘.‘,,:,,,
                                                                                  :,??;.,: : :;,;,;,z:z    .,“:
                                                                                                             2b,~..
                                                                                                                ;,,,I;‘.i..,i,
       is strongly persuasive           as authority       and                          ;:s‘.’ ,‘.“y:;’ ,.,~:,;, 1
       is generally      acquiesced      in by the state                                            ,, ,,‘:, ,~,:: :
       courts, although -It is not absolutely                bind-                       .,,
       ing.    . . .”
            Under the existing     state of authorities,     we
feel that it is our duty to overrule        our former opinion
and to follow the decision       of the United States Supreme
Court In Dav-Brite LightJns:. In c. v.
therefore hold that the provision        of A%%e~*V           f;leC
Prohibiting   employers from deducting from the waies’oh           :
employees for the time the employees are absent for the :“!
Purpose of voting is constitutional.          This provision    of   ,”
the statute   should be interpreted      in the light    of the
holding in Opinion O-6242, which we here reaffirm
the employee is entitled       to absent himself from his
for a reasonable time, depending on local conditions.
                                                          :::
                                     , .::,:.-                                                           ,.(’
                                                                                                         ,?.;’
            Aztlcle 209 V.P.C., making it an of-                                                                               ,       ‘,
                                                                                                       ,.‘,      ,~           .:
       fense for an empioyer to refuse to an.employee                                                                          ,.
                                                                                                                 i,, ”         j :j.
.      I.‘..   .
      ./                                                                                            ,,; ,
                                                                                                   ~.‘
    . I.       .
                              Hon. Stewart   W. Hellman,   page 6   (V3475)   : : ,’‘:~,i,:’
                                                                                          ‘~.~!:.;
                                                                                               ‘: .:::,
                   5;;:Ij
                                                                                           ;.        ~.

                                  the privilege    of attending    the polls or'to      ) " .:, :.,.,,
                                                                                                 ;"'
                                  deduct from the employee's wflges because
                                  of the exercise     of that privilege,    is con-     ':l.;,~     :'
                                  stitutional.     ay-Brite   Light
                                  a,        72 s. Ct. 405 (u. s. E.
                              APPROV&D:

                               E. Jacobdon
                            .' Reviewing Assistant
                            """Charles Do Mathewg
                              First Assistant
                             .MKWawb            ,,'    :
