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,f the 

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 classified as mere employees. This distinction and the criteria 

-3800- 
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 characteristics, 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 persons 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~-county offices 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 woulcl prevent 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 employee. Article XVI, Section 40 of the Texas Constitution, prohibiting 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. Although the term "election officers" is frequently used in referring to the judges and clerks of an election, th8 characteristics 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:~is not 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 ,znay be paid for working during hours that they 

are not regularly required to k2 on duty, in performance of services 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 incident to their regular employment without additional pay or compensatingtimec 

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 disqualified 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 employees 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 

By: w. -zi,e 

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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