                     THE   ATTORNEY               GENERAL
                                OF     TEXAS
                             AUSTIN.   'l-xcx~s   VI3711
CRAWPORO c. MARTIN
 *TroaRN6x    OEmmaAl.
                                   April7, 1967

   Hon. Charles H. King, Jr.               Opinion No. M-53
   Commissioner
   Bureau of Labor Statistics              Re:     Under the stated fact
   Austin, Texas                                   situation, whether an
                                                   employee must be glven
                                                   time off to vote while
                                                   engaged in working over-
                                                   time hours at his request,
                                                   and if the employer is
                                                   compelled to allow the
                                                   employee sufficient time
                                                   off to vote, is the em-
                                                   ployer required to cpmper)-
                                                   sate him at the overtlrpe
   De&r CommissionerKing:                          wage rate.
         You have requested an opinion of this office concerning the
    above captloned matter under the following set of faats:
                  "An employee, upon arriving at work on elec-
             tlon day, Indicates his desire to work overtime,
             should overtime be necessary, for that particular
             day. This particular employee then works his
             regular eight hour8 and is subsequentlyoffered
             a chance to work several additional hours over-
             time as he had previously requested. The employ-
             ee accepts the overtime and then works for two
             and one-half hours during the overtime period up
             to 6:30p.m. The employee then requests that his
             employer permit him time off to vote in a local
             election and that he be compensatedat the over-
             time rate during his absence while voting."
             Article 209, Vernon's Penal Code provides as follows:
                  "Whoever refuses to an employee entitled to
             vote the privilege of attendlng the polls, or
             subjects such employee to a penalty OT deduction
             of wages because of the exercise of such privllegeX
             shall be fined not to exceed five hundred dollars.
         This statute was originally enacted a8 a part of the Terre11
    Election Law in 1905. Since its enactment, the statute has not
    been before an appellate court of this state for construction or
                               - 242 -
Hon. Charles H. King, Jr., page 2 (M-53   )


application. In Attorney General's Opinion V-1532 (1952), this
office held that an employer Is not required to give an employee
time off to vote where the employee has sufficient time to vote
outside his working hours. If an employee does not have suffl-
clent time to vote outside his working hours, It would be a
violation of the statute If his employer denies him additional
time as Is necessary for exercising his privilege of attending
the polls. Sufficiencyof time was held to be a question of
fact depending upon the circumstancesIn each partlcirlaroasei
     In light of this holding, If the employee under the facts
stated In your opinion request had sufficient time to vote
outside his working hours, the employer would not be required to
allow the empl'oyeeto leave his employment for the purpose of
voting.
     Should the employee not have sufficient time to vote
outside his working hours, the employer normally would be required
to permit the ~employeesufficient time off to attend the polls
without any deduction of wages because of the exerclse.of that
privilege. Attorney General'8 Opinion V-1532 (1952). However,
under the stated facts the emp,loyeewould have had sufficient
time to vote after he had completed his normal working hours at
4200 p.m..,and the employer would not have committed a violation
of the statute had he refused to give such employee time off to
vote during his normal work period. Since the employee was not
being required to work beyond 4~00 p.m., he was free thereafter
to exercise hls freedom'of choice to vote or not to vote.' There-
fore, It Is the opinion of this office that, when the employee
voluntarilyrequested to be permitted to work overtime hours
beyond 4~00 p.m., he elected to work such additional hours as
the employer deemed necessary In providing him the opportunity.
In making such election the employee exercised his freedom of
choice of attending or not attending the polls, which is the
right created by the statute. The employer has not denied the
employee the privilege of voting because unquestionablythe em-
ployee had that right until, by his own action, he relinquished
it by requesting the overtime work for his own pecuniary
benefit, Instead of using this time to exercise his privilege of
voting. In making his election the employee has accepted the
privilege of working the additional hours on the terms and
conditions offered by the employer, and should not thereafter
be allowed to revoke his action as the employer has the right to
rely upon this acceptance in planning his work schedule, production
requirementsand employee complement necessary for the overtime
period. To hold otherwise would create an undue burden on the
employer If he were faced with the possibility of his work force
abandoning the job after he had planned his work schedule, based
upon the employees' assurance that they would be available and
working.
                            - 243 -
Hon. Charles H. King, Jr., page 3 (M53   )


     With regard to your second question, In view of our holding
above It Is clear that the employee In question would not be
entitled to be compensated,either at his remlar rate of pay
or at the overtime rate, should the employer voluntarilypermit
him to leave the job for the purpose of attending the polls.
If an employee voluntarilyrequests to work additionalhours
and then requests permission to leave his employmentto vote,
he Is attending the polls on time which Is outside his re ulred
working hours and for which, in any event, he Is not en*
to any compensationfrom his employer.
     Conversely, If at the employer's election, he requires
his employees to work additional overtime hours and such em-
ployees do not have sufficient time to attend the polls outside
of their normal and overtime working hours, the employer would
be required to allow these employees sufficienttime off to
vote, should It be requested, without any deduction from their
wages because of the exercising of such privilege. In this
situation It would make no difference whether the employees
were permitted time off during'their re@lar working hours or
their overtime hours as their total compensationwould be the
same, as If they had not taken time off to vote.
                               SUMMARY
          Under the stated facts, Article 209, V.P.C.,
     does not require an employee to be given time off
     to vote while working overtime hours that he had
     voluntarilyrequested. If the employer voluntarily
     permits such employee time off to attend the polls,
     during such overtime period, the employee Is not
     entitled to be compensatedfor such time, either at
     his regular rate of pay or at the overtime rate.




Prepared by Robert W. Norris
Assistant Attorney General
APPROVED:
OPINION COMMI'ITEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
                          - 244 -
Hon. Charles H. King,   Jr., page 4 (M-53 )


Mary K. Wall
Marvin Sentell
Lonny Zwlener
John Banks
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.




                            - 245 -
