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## 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 overtimework incounties under Dear Mr. Martin: 500,000 inpopulation.

Your request for an opinion reads as follows:

"Please letmehave 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 10hours perday in holding such elections inGrayson 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 ofgeneral, special and primary elections. This article provides for overtime pay for such judges and clerks in counties having a population of 500,000 ormore, but omits anymention of such pay incounties 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 ofVernon's Texas Election Code, as amended in 1965 (Acts 59th Leg., ch. 678, sec. 3, p. 1554), provides:

"Thepay of judges and clerks of general and special elections shall be determined by the Commissioners 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 Connnitteeof 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 incounties having a population of 500,000 ormore according to the last preceding Federal Census, said judges and clerks may eachbe paid at the rate of $1.25 perhour for any time in excess of aday's work ashereinafter defined. A judge who delivers returns of the election immediately after thevotes have been counted shall be paid Five Dollars ($5) for that service: provided also, he shall make returns of all election supplies not usedwhen he makes the return of the election. Ten (10)working hours shall be considered aday within themeaning of this Article. The compensation of the judges and clerks ofgeneral and special elections shall be paidby the County Treasurer of the county where such service was rendered upon the order of the Commissioners Court."

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

"Thepay of judges and clerks of general and special elections shall be determined by the Commissioners Court of the county where such services are rendered, and inprimary elections by theCounty 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)perhour each for any time in excess of
aday's work as herein defined. The judge who delivers the returns of election immediately after thevotes have been counted shallbe paid Two Dollars ($2)for that service; provided, also, he shall make returns of all election supplies not usedwhen he makes returns of the election. Ten (10)working hours shall be considered adaywithin themeaning of thisArticle. The compensation of judges and clerks of general and special elections shallbe
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Hon. Dean Martin, page 3 (C-597)

paidby the County Treasurer of the county where such services are rendered upon order of the Commissioners."

With ten dollars being fixed as themaximum pay for a ten-hour working day, it is seen that themaximum rate forboth regular working time and for overtime was $1.00 perhour. In 1963, Article 3.08was 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:

"Inall 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 perhour 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 toArticle 3.08was enacted as a part ofHouse Bill No. 114,which also amended several other articles of the Election Code. As originally introduced, the bill unequivocally provided for an increase in themaximum hourly rate from $1.00 to $1.25, with no change from the 1963 amendment as to the number ofhours forwhich compensation could be paid. As reported out of the House Committee on Privileges, Suffrage and Elections and as passed by the House with avote of 114yeas and 26 nays, thebill provided for an increase to $1.25 perhour, keeping the limitation that no judge orclerk in precincts using voting machines should be paid formore than twohours after voting had been concluded, and adding the limitation, applicable inboth voting-machine precincts and paper-ballot precincts, that no judge or clerk should be paid for any period of time in excess of onehour before voting began. The Senate Committee on Privileges and Elections reported out acommittee substitute for H.B. 114 which deleted the amendment toArticle 3.08, and the amendment finally enacted was adopted as a Senate floor amendment, along with one other floor amendment to the committee substitute (SenateJournal for May 26, 1965, p. 1855 of thedaily journal).

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The House concurred in these amendments by avote of 120yeas and 16nays.
The normal period during which the polls are open is 12hours. Art. 2.01, Election Code. Although no statutory limit is placed on the number of clerks who may be employed at a polling place (seeArt. 3.01), presiding election judges often find itdifficult toprocure an adequate number of clerks tokeep the counting ofballots more or less current with the casting of theballots during voting hours, and limitations of space, equipment, and other necessary facilities at the polling place often make it impossible toutilize a sufficient number of clerks to complete the counting ofballots 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 ofballots inmany precincts isnot 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 isrequired in some elections, by providing 24hours 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 asmuch 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 leasthalf anhour before opening of the polls, andArt. 3.02, authorizing the presiding judge to determine the length of time that clerks maybe absent formeals, etc.). Where themaximum ratewas paid, itwas not uncommon for election officers tobe paid up to $18 or $20 for their combined services during voting hours and after the polls closed. If failure of the 1965 amendment tomake express provision allowing paymsnt in
excess of $12.50 for total services,rendered incounties under 500,000 precludes payment for overtime service,the amendment in many instances would effect a substantial reduction in compensation. Yet thehistory of thebill in the House indicates in clear terms that thisbranch of the Legislature interpreted the Senate floor amendment as authorizing an increase in compensation, harmonious with the action which the House had taken originally inpassing 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 1963nor-dingandwithout resort toaknowledge of conditions as they existed inactual practice, appears tohave the purpose of increasing the compensation of election officers, and it is reasonable toconclude thatboth the House and the Senate so understood the amendment. The provision stating that "tenworking hours shall be considered aday within the meaning of thisArticle" is referable to the provision fixing themaximum pay at $12.50 "perday" aswell as the provision expressly relating to overtime pay in counties having a population of 500,000 ormore. The reasonable construction of the amendment in reverting to amaximum amount "per day" instead of amaximum amount perhour, and in defining aday as ten working hours, is that comparable compensation may be paid for time in excess of tenworking hours. It is our opinion that thiswas themeaning of the amendment as theLegislature understood 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, 7Tex. 76, 1.06r3.851):

"Athing which iswithin the intention of the makers of a statute is asmuch within the statute
as if itwere within the letter;" "and a thing which iswithin the letter of the statute isnot within the statute unless itbe within the intention of themakers."
Accordingly, we hold that in counties under 500,000 inhabitants, the election judges and clerks maybe paid for service inexcess of tenworking hours at a rate not to exceed $1.25 per hour.

SUMMARY
Although Article 3.08 ofVernon's Texas Election Code, as amended by Chapter 678:Acts of the 59th Legislature, 1965, fails tomake any express provision for overtime pay for election judges and clerks incounties 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 tenworking hours at a rate not to exceed $1.25 perhour.

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 THEATTORNEY GENERAL BY: T. B.Wright

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