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WHEN MAILPlG A COPYOF V-1475 ALWAYS ENCLOSE COPYOF V-1532
Mary K. WallRon. Stewart W. Hellman l
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Criminal District Attorney Tarrant Counti
.. I Fort Worth, Texas.. L

Dear Sir: ’

Y&u have requested that this office review .,::~,,;,:"~~'~~~;-'::..., %:IJ :.

Ii',, 1 the holding b Attorney General 1s Opinion 0-62u (19&b), ‘,, :~~~:.,‘ :? ‘~j. ‘ :i’ :~~~;:i:.-

::::~!, In the light of court decisions whlch’have been rendered since the opinion was written. mat opinion :' .,$$J :~+?;:'1;q:,. i held :~

‘I’ !, $&;; : ,;;: : 1;: :,,,j~ 1: ;t~“:~, 7’ i unconstitutional the portion of Article 209, Vernon’s 1,;~: .;.,:,!,, $;I! ‘,,, ; :,::,,’ ~‘
.. ,,;. :,:, :i.,: ,:I Penal Code, which ‘makes it unlawful for an employer to,. ‘ ;::“;, ,<,;;,I .: ‘,. ‘ ::,“ ‘ : ~,.::,,:,:, subject an employee to a deduction of wages because of,,;:
. ‘, ..J,: I, “;~ K_‘i, ,f the exercise of the privilege of attending the polla,, y;,::,;, :~:~~~,~$j~:~ :.:i,,.; :,.,::;: : I,,.:;$ The full language of Article 209 IS as followar .:,i’ :; :.: ;,L~,::,) :.. ’ :> ‘ :,‘~ ,I,‘, : 1 ,.~,..

9hoever refuses to an employee en- ~. ,~; ,,,,,: .,‘ ?j;! ‘~ ” ,:tv’.,’ ,~? . .~~~~~&! ;,,.‘ .y*,‘ :i,, ” ,, ‘ :

This statute was orlglnallp of the Terre11 Election Law of 1905. During Years since Its enactment, the statute has never before an appellate court for construction or tion. Opinion O-6242 held that the portion of ute making it an offense for an employer to refuse an employee the privilege of attending Similar provisions in statutes of f OWLy been upheld against oonstitutional attacks. cases cited &&gg. In holding invalid &ticle 209 which prohibits an empl,oyer from an employee 1

s wages for time attending the polls, the opinionxy. 632, 28:: ~$7tje$&$? ’ ,&t~”

the court held that a Kentuck; statut

majority and dissenting opinions In St s., 240 S.W.26 886 (MO. &?b& .,;, .,,:,, '!.. ~\\ '7 C'~." i. . ., .:/

~~ :I,,: ,.

,.. ‘,I. Bon. Stewart W. Hellman, page 3 (V-1475) ~, . 5l.w ,,; ‘ :,, i.: : ‘
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, ‘ ..,,. ! ;: In State V. Day-Brite Lirrhting, I 2b s.w. 2d 886 (MO. Sup. 1951), the SUpreme COUrt O?ilSSOUd. upheld the constitutionality of a Missouri statute making it a misdemeanor for any person or corporation to ffcause any employee to suffer any penalty or deduction :~~ _, of wages” because of the exercise of the privilege of ; : ‘ 1 t absenting himself from his employment on election day. , :i) ;.~,, The Missouri statute contained further provisions with I respect to the time during which the voter was entitled to be absent from work; but so far as the immediate question is concerned, we are unable to perceive any ground of distinction between, the Missouri statute and the Texas statute. The majority opinion held that political welfare Is within the protection of the po3ice power of a state Andy

that the statute in question did not violate the due process, “equal protection3 or impairment of obll-. gation of contract clauses of either the state or federal constitution. Upon review of that decision in Day-Britq Llqhtln In v St tq, 72 s.Ct. 405 (19521, the Supreme :i,‘~ ‘ : ‘,‘, : Court or&theC&ied ztates held that the Missouri statute j .*:,“J: ?,. ,“,‘I “,~ did not violate these ‘clauses In the Federal Constitutlon..~ ,: $~Y ’~. ‘ ..,: ::{_il;:. The majority opinion stated that the law, which was “de- .,,:,.>,;: ,: ~~,~‘X(, S igned to eliminate any~ penalty for exercising the right ;.:?$ ~:,‘~.?-:” I’.~ of suffrage and to remove a practical obstacle to getting:. $~.:.~,,:~!: ;.:I,: ::“i ‘
. out the vote,” came within the police ,power for the pro- : ’~~;,~~“ ‘ .,‘ ;:~,.,_,::,. :, tection of the public welfare, which included the political well-being of the community. ‘ ;.,:;!,’ : ;,-: ; ~., opinion the court said: In the oourse of.. the. ,..I ,.:: J$:j,<: ,,i: .~: ‘ .~;,;,‘ .,..; 1\,;,-:,, 88Extreme cases are oonjured up :,, ~~;.;~::$j ’i’ :~ ”:j$,: ‘,,..)! ‘,

:I: where an employer is required to pay wages for a period.: ~:,, : :.,:, that has no relation to the legitimate end. Those cases 1;; ‘, :~ ‘ : .;, F,..,,

can await decision as and when they arise.11 : : ~~~~~,~:~~,~~; ::::::~:,.~, ~,:f,;,,

‘
.. ><‘ : ‘ :: ,,I “: ,:,,,;: (~

c&-i& Han: St,ewart W. Hellman, page 4 (v-.1475)

Article I, Section 3 of the Texas Constitution, declar- ~‘I,:;, ,:.{I. ,:!::I.! ’ ing that all free men have equal rights is comparable ,: ., ;I$,,. 1 ’
. to the equal protection clause of the 16th Amendment, :, ,:j~. %<,,:;,;, and the I due course of law” provision of Section 19 of ; :, “. ,~ il;iP;,! Article I corre$ponds to the due process clause of the ‘ .,.. .:, ‘, 14th Amendment., .$, .,, .>.I : We are not cognizant of any other pro- ‘,~~ ~ ’ ::G,,;.? vision in the Texas Constitution which mlght be Invoked ‘~ ” ,,i,,‘ .::“ ’ against the validity of the statute. 3 :” ~? ‘ .I ?,:,: ‘ :
In undertaking a reconsideration of the holding in Opinion 0-6242, we are confronted with the matter of evaluating the, ,persuasZveness of a decision by the United States Supreme Court in regard to a question aris-, ,:, 1 “1 ’ ing under the Federal Constitution when a similar ues-. tlon is raised under the correspon&.ng provisions j the’ :~,~; ‘~: ‘~~‘~ o Texas Constitution. , ;,, :.j,- .; ,,., 3 I Unquestionably it is the right of the state,, “Iris.. ‘ ; 4 “’ - ,. f courts to construe the constitutions of their own states, :,:,:::l.~’ z and in ‘the present case we have no doubt that the courts : ‘i$‘ :~‘~, : : of Texas would not be compelled to place the same con-, ‘,j ’,,; .~:, .~ struction on the Texas Constitution as the United States ,::;i:i, !t,‘, Supreme Court has placed on the Federal Constitution. ” ‘ : See 21 C.J.S., Courts, 6 204; 35 C.J.S., Federal Cou’rt’s,” ~-.;.r,~‘,‘ :.‘ -..~: ‘ .: ‘2 ~, li 171, and cases there cited. Nevertheless, the per- ‘ ;::Y’j suaslveness of the decisions of other tribunals on questions of first impression in the state court cannot be : ‘, Ignored. The attitude of state courts toward the deoi+ i ‘I, sions of federal courtsr is summarized in the following ,~ ‘,~ ,‘ ? ‘ :..: ;,!L.! quotation from 21 C.J.S., Courts, a 205; ‘~.,, , ,,~..“i ~~: “In cases not arising upon the construe- “*,: “’ tion of the constitution and laws of the ~, .J,~ ’ ‘7 ,i’, federal government, but in which the state ,’ : .:,,; courts have full jurisdiction and their judg-, : ‘ : ‘ : ‘ : ments are final, such courts will adhere to : “’ i,, and follow their own decisions and are not ‘7 :,~ :, bound by those of the federal courts9 although ,,,‘,:. 1~ .A : ‘ .,,I:: ‘i.

_ . y The courts c

>f this State in innumerable cases have treated the equal rights and due course of law clauses of the Texas constitution as being identical in scooe with, the eaual motection and due process clauses of kha 14th fimendrr;ent.- See Babce v. 676 680 (19x5). utv 2d 496 (1937) * ix Carte S.W.26 134 (1828). R bo ~(Tex- C~V. A p. 1#2# 16 6 5Q2, p. 9883 a., 6 568, ,:

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.:;: ,. .

Hon. Stewart W. Hellman, .page..!i;.. ;(ll-5475). .i, i . .. . :. ‘ ;p,,;, : ;.j:f:,

such decisions .are. persuasive; and the ,; decisions of ,.a state court of’ last resort ; ; upon a questlon’asto which Its judgment Is final will. be adhered to-.and followed “.‘ :, bye the .lower courts of that state, even , . ‘ ..~z though it is in conflict with a decision of the supreme court of the United States. I’..~ :: Accordingly the state courts are free to decide, for themselves all questions of ,~‘ ( :m )“,.,,‘,~ the constructi.on of’state constitutions’
. ~. “. .., and statutes,:,. ,h. exception t@ .t,his rule.

. ‘ : ,i‘ ?: ~. has been made, however, where the federal . ‘

.‘ ,-:j “,,: ‘~.., r: ‘ !:f .:< ,, I T,.” ,” ‘ :.~,’ supreme, court .~has decided that it is neces- ~ 1 ’ ( ‘,I ,, sary to~‘construe a state statute i’n a cer- :/,f i. tainway to prevent its being violative of ,_,,,., - the federal constitution; and where the ,.p question presented is as to the construetion or vio3ation of a provision of the ’
state constitution which is similar to a ,. ..,., provision of the federal constitution, and ‘ .,.:: ’ “‘,b. ‘,’.,,, ; ’ ,.:e ; ,, .,, the same question has been decided by. the ,, ,:,‘~,,:;~.T,. ‘, ,:.: ,, :,:.. ~~.,.:,~,::, ,y.,,,~ . ’ ; ,, federal supreme court with respect to the ~~ :,,, ,.,,’ 3.;~ ,-I. federal constitution, the federal decision ‘ ;., _: is strongly persuasive as authority and :,??;.,: : :;,;,;,z:z ,,:,,, ;,,,I; .:;!)‘
. ‘ .,“: 2b ,~.. ‘ .i..,i, is generally acquiesced in by the state ;:s ‘
. ’ ,‘ .“y:; ’ ,.,~:,;, 1 courts, although -It is not absolutely bind- ,, ,,‘ :, ,~ ,:: :
.,, ing.
. . .” Under the existing state of authorities, we feel that it is our duty to overrule our former opinion and to follow the decision of the United States Supreme Court In Dav-Brite LightJns:. In c. v. therefore hold that the provision of A%%e~*V f;leC Prohibiting employers from deducting from the waies’oh : employees for the time the employees are absent for the :“! Purpose of voting is constitutional. This provision of ,” the statute should be interpreted in the light of the holding in Opinion O-6242, which we here reaffirm the employee is entitled to absent himself from his for a reasonable time, depending on local conditions.

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, .::,:.- ,.(’ ,?.; ’ Aztlcle 209 V.P.C., making it an of- , for an empioyer to refuse to an.employee .: ‘, fense ,. ‘, ,~ ,. ” i,, j :j.. I. ‘

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. 5;;:Ij Hon. Stewart W. Hellman, page 6 (V3475) : : , ’ ‘ :~,i,: ’ ‘ ~.~!:.; ‘ : .:::, ;. ~. the privilege of attending the polls or'to ) " .:, ;"' deduct from the employee's wflges because :.,.,, of the exercise of that privilege, is con- ':l.;,~ :' stitutional. ay-Brite Light a, 72 s. Ct. 405 (u. s. E. APPROV&D:

E. Jacobdon .' Reviewing Assistant """Charles Do Mathewg First Assistant .MKWawb ,,' :