OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN C~~“ER

**SELLERS** A,TTQRNEI

**GIZNLRAL**

Rmorable John 0. Reed, CoPrisslorrsr &reau of I&or st8tlstlc8 Justin, 4ex80
Dear Sir:

You request our

. . . . 8offlcs **a3**to 100of **this** X’to FrOpCr’ly oaae 6nawer hreference to said

uorkiag only a part of

loyee is eatltbd to t&s tlme **rk to**  **rote must** this tins off be employer?

‘If the a0sver to question tuo 1s la the arfimnative uould the o~lgloges be privileged to leave his job at anytime ha desired for this 9Ur9Osaor vould the eaployer be Withitl his rq@ts in prasarlbloe, the the allowed during r,&eday Sor the 9W9OW 0s VOtiW?

a a

. . . ..gsnore’ole JohnD. Reed, 986132

se: Statutory provi8loos pertinent to your questions

Peaal Code, 1525, Article ~203:

“UhbdveCrefuses to aneaploye entitled Co vote the privilege of at tending the polls, or subjects such employs to apenalty or deduction of vages because Or thr exercise of such privylegs, shall be fined not to exceed five huudred dollars. ”
Ycrnon’a Muotated Civil Statutes, 1325, firticle 2930:

n In all electloaa, geozral, speclel, &*p~imerj, the polls shall be o9en fro% aevea olcloelc a. 13.to ssven oqclock p. tr. in all counclcs having a pOpUhtfOa of 1~0,000 **or** core occordlog to the last Foderel census ati ia all ocher counties the 90113 shall be apened **nt** 8a. m. and a&11 remain open until 7p. m. .:he olcctloa shall bu held for one day only,”

v. 4.. 0. 3., 1325, Prtlale 4591:

n every day onwhich en election ts bald t&&&out the State, are declared legal holidays, onwhich all the public ofPlces of &he**jtnte may** be closed end shall be cmsldared endtreated as Smiay or the Chzlstlaa Sabbath for .a11purposes regarding the presenting for the payment **or** acceptance and of protesting for aad giving notice or ths dishonor of bills of exchange, bank checks **end pr~mls~~ry**  notes placed by the lav u9on the footlag Ofbills Of exchange. ”

days. Our statute doss not 9rahiblt labor on legal holl-

“The vord ‘holiday’ as inteqreted by the coiirts does not IrppOrt the same statMaS ;3Un- &y and a dealaratloa it+ e statute that a Certain day shall be a legal holiday gives that day;-lon;rable John D. Reed, page 3

the attributes of Sundayonly to the extent OS the s~~esr UO~~Sof the statute.” Sundey and Holidays, 39Tex. Jur. 657, par. 2, o.--
Penal **Code,** 1925, Article 209, ia a **part** OS**the** xleotiolr law OS**1905**(Act8 OS29th Lee., 1st Colled aess., Ch. 11). Section 175 of that Act (page 562) **is** es follws:

“Pnyperscn or corporation uhorefuses to auenploys entitled to rots the p?elvilega of attendirrg tha polla, or subjeots such employs to a penalty or deduction of uages because OS the exercise OSsuch prlvllage la gullt,y OSe ubdameaaor

.”

z,‘kecodlflcetion of 1911, Penal Code, Prtlcls 244, lncor~oin&Edthis provision h **Its** precise phraseoloeg. The 1325 cZdifiiW.3 brOL&ht it f0rU13.W itI its pPCSeRt iOr& VlthW,, 01 course, chaxglag Its Intent or purpose.

.rlthough other states have enacted lc$,slation %lzxd to require ezaployera to cllov tholr employees t&e to vote ulthout deduction of pay, our laveutlgotioo ims dis- ~103~3 oali two case8 (both OS themXlllnols cases) iavolv- :i;ii the questfons under dlscusslon.

Pcase of first impression 13that of rconle us. -~&~*L~ g-&*Q’;olpt thera he=: (1323) 306 Ill. 486mL L;.

” The provlsiolw ot sald statute that g&A I& the rl&t to absent hlmselS for tuo hours oneleotioa day Md to cast hia vote, andvhlch required his employer, plaintiff in error, to @ve him this opportunity of attaadlng the eleoticn **for** such purpose, are wholesome ~ovlslons OSthe statute, end ore valid and binding1 but the provlslca of the atatuto that requires the employer to pay himat the rate of 85 cents perhour **for** the tlms CmFloycd la atteldlng the election and costing his vote -- or# speakia~, more ancurataly, the ~rovislon rcquiring the employer to pay himS~Or tvo.hours’ time at such rata for exeroislag such FrlVlleEe -- 1s lavalid, because lt 1s an u~cooo&A~Eoaorable John C. Heed, page 4

abrldgmsnt ot the right to makecontracts. The 1eSlslature had junt as muchright to require employer* to pay their employees **for** the tl.ms they naces8arlly **would**be corngelled to usa in 1OOkUg after any sick member**or** membersof their Samlly as it had **to** pasr ths provlslon ia question. Other strlklag examples of void logis&- tloa of tha character la question might ba stated, aad la uhlch it would appear that the employee would be engaged la **a**matter of pursuit equally as coolmendable and as essential to his ounpersoaal welfarei but further c-at Is unnecessary, as It is entirely clear thot the provision in queatloa 1s an unreasonable a~ridgrasnt of the right to contract, andtherefore void.
% is claimed by the people that the provision In queatlon is eustalaablc uader vhac 1s kaoun as the police pouer of the state, conzmonly Ceflnad OSthat inherent plenary povcjrIn the state to prohibit all things hurtful to the comfort, welfare, etidsafety of **society.** ‘L’heJ relatloa of employer end employee is purely voluntary, rc3tlng upon the contract OSthe parties. ShIery manha8 a natural right **to** hire his services to anyone he pleases, aprefrain frgn such hlrlng, and it 1s equally the right of everyone to determine whose servloea he will hire. Thestate has noright to interfere in .Z private employment and stipulate the terms of the services to be rendered. Tledeman, Pol. Power, 01 176, 

### 178. It la tlwa that the stats does have the rl&ht, under Its police povers, to pass laws that tend to promote ths health, safety, or norala of euch employees as Purney, because of the fact that such laws would tead to promote tha health, comfort, safety, andvelfare of soeletg. The act in question, as contended by plalutLfS la error, does not in any vay, so far as va are able to see, tend to promoteths health, eaf’ety, or BOrals of such employees. Theprovialons In question are not adapted to the object for vhlch the lawvaa enacted, (md caaaot be said to secure public Confort, velfare, ssfety, or public morals. There J.Snoconteation, and there can be none madeuith anyreasoaablo shwl~, that the provision

ill UWStiOll teRd9 COprOSlOt the Safety QPhealth OSSJlyefaployee. It ,has alv~ys been the policy Of Ourlava to condeen the Idea of sop voter bein@(paid for CXarOiSiIlgthe privilege ofM elector or voter. Therfght to vote Is aQigly one of thepiVil8g88 &Wanteed to 

### everycitlzea of this country vho poasessas the **regulsite** quellficatlov. It 1s not only aright, but should b6 re~axl8d as a duty OSthe **citlzon,** where he is reasonably able r&yaUx~lly to perform that duty. It 15 UOt the COnsCltUtiOOal rl@t of any CitLZCn CO b8 pZiLdiOr th8 c%TC~lsu OShis ri&t to vote, and the h31diug of tke p:ovl3lon 3f t!x statute vold dots not vlolato the rF@t of my citiesa, iacl~?in.~those v;hoare ctqlzi'jcd t3 l&or. '221s~rovl3ion of the stutwl-,e I.3not 3u3- talnablc under ths police peer of the state, r.nd it does violate tke cocstftutlonol povlslcus nforescid, e%I thcref ’ore mmt be kclored wlc!. Eesides, ‘no cxsrclse Of t!iU pokce p3uer cix disrc;;crd the ccartltutlozxl .guarnncies in re3pxt to the toking of prlvoto r,roptxt;j, due pacess, cud equal yrotectloa’ of t!:e lcw3, GUI it should mt ‘ovcrrlde the lamrids of zr?tu;-al juytiC8.'

. . ."

our alpreee court, 0+l10a hgC:llef JustPze CureECU,ia Trsvclers 1~3, co. 0~. xmO3ul1, (1934) pi 3. si. (26) lOOfi, ot Cage-11, cited ~ii;h espzoval the obovc case luLcldlnngtCe -ZmerEencyfiioratorlum Law unconstltutiozal beceude it inpalred tho obligation of contracts.

The 

### othercase is that 

### ofNC!1 In8 vs. TX-izCk, ($27) 326 111. 240, 157:J. S. 235, &*ywttloa OP the
Ilii~ol8 primary lau Invalid vhlch g8V8 e?~pl~g~eathe right

ccabsent theW8lVe8 from eISplOpWAt COr tV0 hours on prinosy election day to vote, without deduction from their Sf&'I'18s. The court, cltlag the first uoutloncd czise, said:

” The proviUloa of SeCtiOn 7, givmg em~liy&98 the right to absent th8mse1oee fra their emplopeot for tvo hours on elcctlOnHonorable John D. Reed, page 6

day for the pLIrpOa8Of'voting without anydeduction froa their salaries or wages on aacount.of such absence 1s also unconatltutlonal, being avlolatloa of section 2, article 2 of the COClStitUt.iO& People v. Chicago, MllVBUkC8 &St. Paul Rallvay Co., 306 Ill. 486, 138X. E. 155, 28A. L. R. 610. Theee sections are not, however, of such a character a8 to lnterser8 vlth the operation of the rest OSth8 act, li they arc stricken from It, andtherefore do not &Sect the constltutionallty of the 8lltire tiCt.D Theright OSfranchise la our democracy 1s of supremeImportance and its exercl38 should be zealously guarded. "Statutes regulating the rights of citlecns to vote cre of great public Intereat, and, therefore, are given a broad interpretation to secure for the citizen his right to vote andto insure the election of those officers vho are thepeople's choice." Sutherland, Statutory Construction, Third Edition, Volume 3, page 445, pm. 7215, n. 1.

Wetherefore an8Yer your first qUeStiOn: AKiemployee is entitled to absent himself from his job for a reasonab18 time for the purpose of voting. See our ansver to queatlon Ho. 3.

Second qu8stloar Webelieve that that part of the statute prohibiting the deduction OSvagca whenthe employee absent8 himself from his work in order to vota 1s Invalid.
Third qusatlon: Bearing In mind that our polls
ere open until 7:00 P.i%, that a statute should be interpreted by its equity, end OSthe interdependence of employer and employee la our Industrial cIvi1itatioa, it 18 our opinion that en employer is within the statute andhis rights la prescribing th8 tIm8 &loved during the day for the purpo88 of voting. The time ti1oved should be euf'flcleat andfair so as to fully end comp1ete1Y permit th8 E-mployaeto exercise hi8 suffrage. Such regulations wouldxonorable Sahu D. Reed, page 7

vary accordLog to 10~41 **Co;lbitlOti8y** but it should gfv4 tb4 employes @a andcmvaaieot tZmaulthla whichto vote.

Trustiagt&mtthhe abwo 41~~404 you~inqu~~, ~4 8re
vary truly yours

AzL BY Ek~rldWuntch

~~55istant