. ”

June 12, 19%

Hen. Lloyd Q. Rust, Jr. CountyAttorney Wharton County Wharton, Texas
Dear Mr. Rust: Opinion

### No.W-445

Re: Raxlmum pay of judges clerks of general and cial elections. andspeIOU have requested an opinion on the following question:
What Is the maxlmwn pay of judgesand clerks of general and special elections that can be aet by the commissioners court for five hours of work and for a day consisting of ten hours work?
The questionmust be broken down into election officers servingat polling places where paper ballots are used and those servingat polling places where votingmachines are used. We shalldiscuss first the pay of officerswhere paper ballots are used. Article 

### 3.08of Vernon's Texas Election Code,which is based on formerArticle 2943 of the Revised Civil Statutes, reads as follow13:

"Thepay of judgesand clerks of general and special elections shallbe determinedby the Commlsaloners Court of the countywhere such services are rendered, and in primary electionsby the County

. Executive Committee of the party conducting suchprlmary election,but same shall not exceed Ten Dollars ($10)a da ‘for each judge or clerk, nor exceed One Dollar ($13per hour each for any tl.meIn excess of a day's work as herein defined. l * * Ten (10)working hours shall be considereda day within themeaning of this Artlcle. + * +I’
Article 3.02 of the Election Code, based on former Article 

### 2938,R.C.S., contains the followingprovislon$

### Hon.Lloyd Q. Rust, Jr., page 2 

### (WW-445)

"* * * Provided, that in all electionsheld under the provlslons of this title, other than general elections, local option eleations and prlmary electlens, the officers to be appeinted by the CommIssIonera Court to hold said elections shall be a presiding judge,and assistant judge and two (2) clerks,wtpese compensation shall be Five Bollars 

### ($5)per day, and Two Dollars ($2)extra presiding judge for making return-of the
The Election Code was passed by the on May 

### 30, 1951,and was approved on June 28, effective on January 1, 1952. to the election."


### 52naLegislature 1951, to beeeme

The 52nd Legislature also passed an --*.- amendment to Artlcle 2943, Revised Civil Statutes,which set tne maximum compensation for judges and clerks in general and special elections at not to exceed $8.00 a day consisting of ten working hours. This amendatory act was passed on May 14, 

### 1951,and was approved on June 2, 1951, to become effective Immediately. As amended, the pertinent portion of this statute is In identical language to that of Article 

### 3.08of the Election Code except that the maximum rate is set at $8.00 instead of $10.00 and it does not contain the provlslon relating to primary elections.

Prior to 1951,Article 2945, R.C.S., had provided for pay In general and special electionsat the rate of $5.00 a day. Article 2938 had provided for pay of $2.00per day for-the special elections to which It applied. It Is seen that both rates were changedby the 1951 enactmentsand that there Is a conflict between the three provisions enacted In 1951.

If we bad only to considerthese three 1951 provisions as set out above, *he Election Code provisionswould control over the act amending Article 2945, having been enacted subsequentto the amendment of Article 2943. Townsend v. Terrell, 

### 1.18 Tex. 

### 463, 16 S.W.2d 

### 1063 (1929);Wright v. Broeter, 

### 145Tex. 142, 

### 196 S.W.2d 82 

### (1946);39 Tex.Jur. 

### lq7 Statutes, Sec. 79. The only questionwould be to determine.wh&her Articles 3.02 and 3.08 are in irreconcilable conflictwith respect to the special elections to which Article 3.02 applies, and, If so,whiah statute should be given controlling effect. If this were the question, we are of the opinion that Article 3.08 would control the rate of pay both in general elections and in all special elections, it being later in position in the Election Code. Stevens v. State, 70 Tex.Crlm. 

### 565,159 S.W. 

### 505 o-3682 and 3931 (1941~). ;Att'y Qen. Ops. However,Article of the EM&ion Code contains this furtherprovision:. .

Hon. Lloyd Q. Rust, Jr., page 

### 3 (VW-445)

“All laws and parts of laws in with 

### are repealed In so far as such actual conflictwith the 

### provisionsconflict herelaws are In of this code,

. _ and in case of sueh conflict the provisions of this code shall 

### controlandbe effective. However, nothing in this Act shallbe construed te n-m 

### or repealany Aat 

### of theLegislaturepassedat the Regular Sessionef the Fifty-secondLegislature." 

### (Erphaalssuppliedthrmighout,) Thus, the Election Code changes the prior law but It also saves from repeal the conflictingact 

### amendingArticle 

### 2943. To complicate thematter still further, Section 2 of the bill enacting the Election Code (R.B. 

### 6, Ch. 492,Acts 52nd Leg.)reads.asfollows:

"That all elections and all laws relating to suffrage

### andparties, as found In Title 

### 50 of the Revised Civil 

### Statutes of Texas of 1925, and all 

### amendmentsthereto,be and the same are hereby repealed,provided, however, that nothing In this Act shall be construedas repeal.lng or In any way affecting the legality of any penal provision of the existing law; and thisAct shall be construed to be an IndependentAct of the Legislature enacted under the captionhereof, 

### and the Sections contained In this Act, as revised, rewritten, changed, combined and codified shall be the governing law of this State." Article 2943 was a part of Title 50 of the Revised Civil Statutes. By the language of Section 2 of B.B. 6, this article and all amendments theretowere expressly repealed. zn literally, the repeal would include the 1951 amendatorg 

### as both date of 

### passageand date of apPPova1 Place lt as a &or enactment subjectto repealby a later enactment- Cases cited supra; Community Public Servlce?o. v. James, 

### 166S.W;2d 395 (Tex.Civ.App.1942, error ref.). OFrth since Sectlon 2 of H.B. 

### 6 is later in position 1; th??FE'than Article 14.11 of the Election 

### Code,Section 2 would prevail over Article 14.11 in supra. case of conflictbetween them. Stevensv. State,

this state of affairs It Is impossible to say what Legislature intendedto prevail in general and speIn pay rate the clal elections.

A similar Interpretationproblem was before the court in EX parte Sanford, 

### 289 S.W.2d 

### 776 (Tex.Crim.

### 1956). In that
case the court had to rule on the effect of the provision in Section 2 of H.B. 6 saving from repeal the penal provisions efHOG. Lloyd 0. Rust, Jr., page 4 

### (W-445)

the existing law. 

### The relator

### hadbeen indictedon charges which were a violation of Article 14.04 of the Election Code, the penalty for which was set out In Article 14.06, 

### andwere also a violation ofArticle 

### 265 of the Penal Code. Articles 14.04 and 

### 14.06of the Rlectien 

### Codehad

### made’ changes in the existing law in confliatwith Article 

### 265 of the Penal Code. The court

### held that Article 

### 265was saved from repeal by the expresspr~vlslen of Section 2 of H.B. 

### 6, but this saving clausehad not produced a repeal of the conflictingprovisions in Articles 

### 14.04and 

### 14.06. Both were existing statutory provisions. Being in irreconcilableconflict,neither couldbe given effect.

In Lea1 v. Rurger, 299 S.W. 497 (Tex.Civ.App.1927), an act passed at the same sessionas the 1925 Revised Civil Statutes and preserved by 

### a saving clausessimilar to the one in Article 14.11,was given controllingeffect over conflictinn codeprovisions..Also-see Johnson v. Knin. 75 Tex. 33. 12 - S.W. 321 

### (1889). We do not-ij; ~~~~-~~. .~--.. - ford was a criminal case ,or-that the saving clauseenactments of prior Legislatures rather than of the same Legislature, affords a ground for distinguishingthese cases, Since Rx parte Sanford is the later expression and involves some of the sameprovisionswe are considering,we 

### are disposed to follow Its holding. One possible distinctionbetween the Sanford case and the matter here under consideration Is that we have the further question of whether the repeal of Title 50 and all amendments thereto, contained in Section 2 of R.B. 

### 6, nullified the effect of the saving clause in Article 14.11 insofar as it pertained to the 1951

### act amendingArticle 2943. In view of the specificprovision in Article 14.11 savingall acts of the Regular Session of the 52nd Legislature,we 

### arenot able to say that this act was repealedby Section 2, Cur conclusion is that both Article 

### 3.08of the Election Code and Article 2943 of the Revised Civil Statutes, as amended in 1951, are a part of the statute law of this State. and insofar as ther are in conflict neither can be given effect. Rx 

### parteSanford, supra;Walsh v. McConnell, 273 SW. 

### 833 (Tex:Ccm.Apq.1925); Ramrick v. 'iii?%? 

### 127Tex. 

### 428, 95 S.W.2d 

### 357 ~1936)~; Attly Cen.'Op. -15 (1957).,~

As a result, there is no enforceable statutorv provision-fixingor limltlng the rate of pay in these elections, and it thereforebecomes the duty of the commissioners court to fix the compensationof the election officers at a reasonable amount. Att*y @en. Op.V-749 (1948). What constitutesreasonable compensation is a fact question and the commissionerscourt has the discretion to determine the rate of pay on the basis of all the facts.

The provisions of Articles 

### 3.08and 2948 

### are nullified only Insofaras they are in conflict. Article 3.08 controls the compensationrate in 

### primaryelections, since there is no other statute in conflictwith this provision.Hon. Lloyd 0. Rust, Jr., page 

### 5 (W-445)

The foregoing discussionpertains to pa officerswhere paper ballots'areused. Section 2t Qf e1ect1on o Article 

### 7.14 of the Election Code provides for the rate of compensation of officers in general, specialand primary electionsat polling places where votingmachines are used, as follows:

'I* * l For their services election officials and employees shall be paid a sum to be setby the authority chargedwith holding the election or primary election, but not less than the amount set now by law and not more than Ten Dollars ($10)per day, provided, however that no election official shall be paid more than the pro-rata part of two (2)hours overtime after the polls ape closed. l * *'I This statuteapplies to a specific type of service. m the settled rule of construction, it is treated as an exception to the general law on pa of election officers. 39 Tex. Jur., Statutes, Sets. 

### 81 and 82. A specificact is not repealed by general legislationunless the intent~torepeal it is clearly manifested. Within the Eleation Code itself, Section 24 of Article 

### 7.14 is the controlling statutewhere votingmachines are used. The 1951 act amendingArticle 2943 did not expressly repeal any law, either general or special,and is not to be taken as an implied repeal of this special statute. Consequently, Section 

### 24 of Article 

### 7.14 remains in full force and controls the pay of election officerswhere votingmachines are used.

In Opinion

### v-1528 (1952),this officeheld that officers in precincts where votingmachines are usedmay receive a maximum of $10 for a lo-hour day, with additionalpay at the maximum rate of $1 per hour for time worked in excess of 10 hours while the polls are open and for a maximum of two hours after the polls are closed.

Adverting to the rate of compensationwhich the commissioners courtmay allow in the absence of a controlling statute, we have said that it may allow a reasonable compensation based on all the facts, The legislative expressions fixing a maximum of $10 for a l&hour day in primary elections and in electionswhere votingmachines are used may be taken as a guide to the maximum amount the commissionerscourt should allow for a lo-hour day.

You have also asked what is the maximum pay of election officerswho work less than 10 hours. The statutes provide for overtime compensationat a maximum hourly rate of one-tenth the maximum rate for a lo-hour day, but none of the statutes in express terms set a rate of pay for officerswho work less than 10 hours. We are of the opinion that their pay is not limited to this hourly rate and the authority fixingHon. Lloyd 0. Rust, Jr., page 6 (Vu-445)

their pay may allow them a reasonable compensation,within themaximum for a full day's work, in the light of all the circumstances. For example, a person who holds himself in readiness to work as many hours as may be required of him is not necessarily limited to pay for the nmmber of hours actually spent at the polls. Members of special canvassingboards to count absentee ballots may be able to perform their duties in a few hours' time, 

### but their

### pay isnot restrictedto the hourly rate for the time actually consumed In countingthe ballots. The pay of all such election officers is within the sound discretion of the authority fixing their compensation but may not exceed the maximum for a full daysa work.
SRRMARY Article 3.08 of the Election Code, providing for compensationof judgesand clerks in general, special

### andprimaryelectionsat a maximum of $10 for a lo-hour day, impliedly repeals conflicting provisions inArticle 3.02 of the Election Code, fixing the compensation in special elections at $5 a day. However, with respect to general and special electionsArticle 3.08 is in conflictwith Article 2943, R.C.S., as amended in 1951,which 

### providesformaximum compensationof $8 for a lohour day and which was saved from repeal by Article 14.11 of the Election Code. Both Article 3.08 and Article 2943 are unrepealed statutesand neither can be given effect insofar as they are in conflict. There being no enforceable statute flxing the pay of judgesand clerks of general and special elections serving in precincts where paper ballets are used, the commissionerscourthas authority to fix their pay at a reasonable rate. Insofar as Article 3.08 of the Election Code applies to primary elections, it is not in conflict with any other statuteand controls the pay of primary election officers in precincts where 

### paperballots are used. Section 24 of Article 7.14 of the Election Code fixes the compensationof 

### general,special and primary election officers in precinctswhere votingmachines are used at a maximum of $10 for a lO-hour day. Being a statute of specialapplication, it is treated 

### as an exception to the genera1 provisions.

ofArticles 8.08 and 2943 and controls in the elections to which it applies.. .

Hon. Lloyd 0. Rust, Jr., page 7 

### (WU-445)

The $10maximum fixed by the Legislature in primary elections and in electionswhere voting machines are-usedmay be taken as a guide to the maximum which the commissionerscourt should observe in fixlng'pay of officers in precincts using paper ballots.
The pay of election officerswho work less than 10 hours is within the discretion of the authority fixing their compensationbut may not exceed themaximum for a full day's work.
Pours very truly,

WILL WILSON Attorney General of Texas

Assistant
MEW:dhs
APPROVED:
OPINION COMMITTEE Oeo. P. Blackburn, Chairman

J. C. Davis, Jr. James PI.Rogers Wayland C. Rivers, Jr.
REPIEWEDFORTREATTCRWEY GENERAL BY: W. V. Geppert