+ 

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 overtime work in counties under 

Dear Mr. Martin: 500,000 in population. 

Your request for an opinion reads as follows: 

"Please let me have 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 10 hours per day in 

holding such elections in Grayson 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 of general, special and 

primary elections. This article provides for 

overtime pay for such judges and clerks in 

counties having a population of 500,000 or more, 

but omits any mention of such pay in counties 

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 of Vernon's Texas Election Code, as 

amended in 1965 (Acts 59th Leg., ch. 678, sec. 3, p. 1554), 

provides: 

"The pay 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 

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Hon. Dean Martin, page 2 (C-597) 

Executive Connnittee of 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 

in counties having a population of 500,000 or more 

according to the last preceding Federal Census, 

said judges and clerks may each be paid at the rate 

of $1.25 per hour for any time in excess of a day's 

work as hereinafter defined. A judge who delivers 

returns of the election immediately after the votes 

have been counted shall be paid Five Dollars ($5) 

for that service: provided also, he shall make returns 

of all election supplies not used when he makes the 

return of the election. Ten (10) working hours shall 

be considered a day within the meaning of this Article. 

The compensation of the judges and clerks of general 

and special elections shall be paid by the County 

Treasurer of the county where such service was 

rendered upon the order of the Commissioners Court." 

A review of the legislative history of Article 3.08 is 

essential to a proper determination of the legislative intent 

with respect to overtime pay for election officers. As enacted 

in 1951, when the election laws were codified into the present 

Election Code, Article 3.08 read as follows: 

"The pay 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 

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) per hour each for any time in excess of 

a day's work as herein defined. The judge who 

delivers the returns of election immediately after 

the votes have been counted shall be paid Two Dollars 

($2) for that service; provided, also, he shall make 

returns of all election supplies not used when he 

makes returns of the election. Ten (10) working 

hours shall be considered a day within the meaning 

of this Article. The compensation of judges and 

clerks of general and special elections shall be 

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. . 

Hon. Dean Martin, page 3 (C-597) 

paid by the County Treasurer of the county where 

such services are rendered upon order of the Commissioners." 

With ten dollars being fixed as the maximum pay for a 

ten-hour working day, it is seen that the maximum rate for both 

regular working time and for overtime was $1.00 per hour. In 

1963, Article 3.08 was 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: 

"In all 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 per hour 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 to Article 3.08 was enacted as a 

part of House Bill No. 114, which also amended several other 

articles of the Election Code. As originally introduced, the 

bill unequivocally provided for an increase in the maximum 

hourly rate from $1.00 to $1.25, with no change from the 1963 

amendment as to the number of hours for which compensation 

could be paid. As reported out of the House Committee on 

Privileges, Suffrage and Elections and as passed by the House 

with a vote of 114 yeas and 26 nays, the bill provided for an 

increase to $1.25 per hour, keeping the limitation that no 

judge or clerk in precincts using voting machines should be 

paid for more than two hours after voting had been concluded, 

and adding the limitation, applicable in both voting-machine 

precincts and paper-ballot precincts, that no judge or clerk 

should be paid for any period of time in excess of one hour 

before voting began. The Senate Committee on Privileges and 

Elections reported out a committee substitute for H.B. 114 

which deleted the amendment to Article 3.08, and the amendment 

finally enacted was adopted as a Senate floor amendment, along 

with one other floor amendment to the committee substitute 

(Senate Journal for May 26, 1965, p. 1855 of the daily journal). 

-2886- 
Hon. Dean Martin, page 4 (C-597) 

The House concurred in these amendments by a vote of 120 yeas and 

16 nays. 

The normal period during which the polls are open is 

12 hours. Art. 2.01, Election Code. Although no statutory limit 

is placed on the number of clerks who may be employed at a 

polling place (see Art. 3.01), presiding election judges often 

find it difficult to procure an adequate number of clerks to keep 

the counting of ballots more or less current with the casting of 

the ballots during voting hours, and limitations of space, equipment, and other necessary facilities at the polling place often 

make it impossible to utilize a sufficient number of clerks to 

complete the counting of ballots 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 of ballots in many precincts 

is not 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 is required in some elections, by providing 24 hours 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 as much 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 least half an hour before opening of the polls, 

and Art. 3.02, authorizing the presiding judge to determine 

the length of time that clerks may be absent for meals, etc.). 

Where the maximum rate was paid, it was not uncommon for election 

officers to be paid up to $18 or $20 for their combined services 

during voting hours and after the polls closed. If failure of 

the 1965 amendment to make express provision allowing paymsnt in 

excess of $12.50 for total services, rendered in counties under 

500,000 precludes payment for overtime service,the amendment in 

many instances would effect a substantial reduction in compensation. Yet the history of the bill in the House indicates in 

clear terms that this branch of the Legislature interpreted the 

Senate floor amendment as authorizing an increase in compensation, harmonious with the action which the House had taken 

originally in passing 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 1963 nor-ding and without resort to a knowledge of 

conditions as they existed in actual practice, appears to have 

the purpose of increasing the compensation of election officers, 

and it is reasonable to conclude that both the House and the 

Senate so understood the amendment. The provision stating 

that "ten working hours shall be considered a day within the 

meaning of this Article" is referable to the provision fixing 

the maximum pay at $12.50 "per day" as well as the provision 

expressly relating to overtime pay in counties having a population of 500,000 or more. The reasonable construction of the 

amendment in reverting to a maximum amount "per day" instead 

of a maximum amount per hour, and in defining a day as ten 

working hours, is that comparable compensation may be paid for 

time in excess of ten working hours. It is our opinion that 

this was the meaning of the amendment as the Legislature 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, 7 Tex. 76, 1.06 r3.851): 

"A thing which is within the intention of the 

makers of a statute is as much within the statute 

as if it were within the letter;" "and a thing 

which is within the letter of the statute is not 

within the statute unless it be within the intention 

of the makers." 

Accordingly, we hold that in counties under 500,000 inhabitants, 

the election judges and clerks may be paid for service in excess 

of ten working hours at a rate not to exceed $1.25 per hour. 

SUMMARY 

Although Article 3.08 of Vernon's Texas 

Election Code, as amended by Chapter 678: Acts 

of the 59th Legislature, 1965, fails to make 

any express provision for overtime pay for 

election judges and clerks in counties under 

500,000 inhabitants, the judges and clerks in 

these counties may be paid for service in 

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Hon. Dean Martin, page 6 (C-597) 

excess of ten working hours at a rate not to 

exceed $1.25 per hour. 

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 THE ATTORNEY GENERAL 

BY: T. B. Wright 

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