December 28, 1966

Honorable Henry Wade OpinionNo. C-792 DistrictAttorney Dallas County Re: Whether a county employeemay Dallas, Texas receive pay forworking 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 departmenthead is not on the ballot, be paid for services perfoamed
.~. as an election clerk in the last general election, whiqh was a.countyholiday, and also receive his re@alar county salary for that day? Question No. 2r, Can regular employees o,fthe Dallas County Clerk's officebe paid **for** working **after** hours for taking in election returns and delivering the absenteeballots?
You have excluded fromyour question those employees who would be disqualified to serve .aselection 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, orwatcher of any election, general, special, or primary." Persons holdihg certain positions in gwernmental service are classifies as officers.while personsholding other positions are classified as mere employees. This distinction and the criteria -3800-

### Hon.HenryWade, page 2 (C-792)

for classificationare discussed in cases cited in the footnotes to 47 Tex.Jur.2d 13, Public Officers, Sec. 3. The disqualification inArticle 3.04 of the ElectionCode applies 

### onlyto those individualswho are classified as officers. Att'y Gen. Gp.~

G-2056 (1940). You have not stateamat positions are involved inyour opinion request. Since the status of each positionmust be determined on thebasis **of** its own characteristics,we cannot say whether the individuals Involved.inyour firstquestionwere or were not eligible to serve as election clerks,but foryour informationwe 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 personsholding positionsas deputies in thevarious county offices are classified~a8officers; those in other types of ,positions are classified as mere employees.

The day of the general election is a state holiday onwhich~-county

officesmay be closed. Arts. 4591, 237211,; and 2372h-1,.

.V.C.S. For a county emplbyee,eligibleto serve as an electionclerk, we.are not aware of any constitutionalprovision, statute,or legal principle,whichwoulcl preventhis being paid underArticle 3.08 of the ElectionCode for servicesperformed on.a holiday when county offices are closed or at any other time 'whichdoss not conflictwith his working hours as a county employee. Article XVI, Section 40 of the Texas Constitution, prohibiting dual officeholding, isnot applicable, since neither the regular employment of the personnor his service as an election clerk placeshim in the category of an officer. Although the term "electionofficers" is frequentlyused in referring to the judges and clerks of an election, th8 characteristics of an election clerk's servicesdo 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 accountingofficers of the State from drawing or paying a warrant upon the Treasury as salary or compensation to anyone who at the same timeholds any other office or position of honor, trust or profitunder 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 individualswho are paid from the -3801-Hon. Henry Wade, page 3 (C-792)

State Treasury, it:~is not applicable to individualswho are paid from other public funds. In the present instance, payment for each servicewould be made from funds in the county treasury.

Your second question iswhether 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 requiredby 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 the92hours ofwork. 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 iswithin the discretion of the Conmissionera Court to deciae whether the employees are allowed additional pay, are given compensatory time off, 

### or arerequiredto perform these services as an incident to their regular employmentwithout additional pay or compensatingtimec
SUMMARY

Personaholding certain positions in governmental service are classified as officerswhile parsons holding other positionsare classifies as mere em-, ployees
. **A** personwho 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 iswithin the discretion of the Coxsnissioners Court of Dallas County to aeciae whether regular employees **of** the Dallas County Clerk’s officewill be -3802-Hon. HenryWade, page 4 (C-7921

given pay in addition to their regular salary for working afterhours in performance **of** duties which,: the County Clerk's office is required to perform ..' in connectionwith an election.
Yours very truly,

,.. WAGGONER CARR Attorney General 

# By: w.-zi,e
Mary K. Wall Assistant
MKW:ra
APPROVED OPINIONCOWMITTEE:
W. 0. Shultz, Chairman John Reeves Pat Bailey John Banks Ralph Rash
APPROVED FOR THEATTORNEY GENERAL By: T. B.Wright

- -3803-