. ” 

June 12, 19% 

Hen. Lloyd Q. Rust, Jr. 

County Attorney 

Wharton County 

Wharton, Texas 

Dear Mr. Rust: 

Opinion No. W-445 

Re: Raxlmum pay of judges 

clerks of general and 

cial elections. 

and 

speIOU have requested an opinion on the following question: 

What Is the maxlmwn pay of judges and 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 question must be broken down into election officers serving at polling places where paper ballots are used and 

those serving at polling places where voting machines are used. 

We shall discuss first the pay of officers where paper ballots 

are used. 

Article 3.08 of Vernon's Texas Election Code, which 

is based on former Article 2943 of the Revised Civil Statutes, 

reads as follow13: 

"The pay of judges and clerks of general and 

special elections shall be determined by the Commlsaloners Court of the county where such services 

are rendered, and in primary elections by the County . 

Executive Committee of the party conducting such prlmary election, but same shall not exceed Ten Dollars 

($10) a da ‘for each judge or clerk, nor exceed One 

Dollar ($13 p er hour each for any tl.me In excess of 

a day's work as herein defined. l * * Ten (10) working hours shall be considered a day within the meaning of this Artlcle. + * +I’ 

Article 3.02 of the Election Code, based on former 

Article 2938, R.C.S., contains the following provislon$ 
Hon. Lloyd Q. Rust, Jr., page 2 (WW-445) 

"* * * Provided, that in all elections held 

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." 

52na Legislature 

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 3.08 of 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 elections at the rate of $5.00 a day. 

Article 2938 had provided for pay of $2.00 per day for-the special elections to which It applied. It Is seen that both rates 

were changed by the 1951 enactments and that there Is a conflict 

between the three provisions enacted In 1951. 

If we bad only to consider these three 1951 provisions 

as set out above, *he Election Code provisions would control over 

the act amending Article 2945, having been enacted subsequent to 

the amendment of Article 2943. Townsend v. Terrell, 1.18 Tex. 

463, 16 S.W.2d 1063 (1929); Wright v. Broeter, 145 Tex. 142, 196 

S.W.2d 82 (1946); 39 Tex.Jur. lq7 Statutes, Sec. 79. The only 

question would be to determine.wh&her Articles 3.02 and 3.08 

are in irreconcilable conflict with 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 further provision: 
. . 

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 conflict with the provisions 

conflict herelaws are In 

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

this code shall control and be effective. However, 

nothing in this Act shall be construed te n-m 

or repeal any Aat of the Legislature passed at the 

Regular Session ef the Fifty-second Legislature." 

(Erphaals supplied thrmighout,) 

Thus, the Election Code changes the prior law but It 

also saves from repeal the conflicting act amending Article 

2943. To complicate the matter still further, Section 2 of 

the bill enacting the Election Code (R.B. 6, Ch. 492, Acts 52nd 

Leg.) reads.as follows: 

"That all elections and all laws relating to 

suffrage and parties, as found In Title 50 of the 

Revised Civil Statutes of Texas of 1925, and all 

amendments thereto, be and the same are hereby 

repealed, provided, however, that nothing In this 

Act shall be construed as repeal.lng or In any way 

affecting the legality of any penal provision of 

the existing law; and this Act shall be construed 

to be an Independent Act of the Legislature enacted 

under the caption hereof, 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 thereto were expressly repealed. 

zn literally, the repeal would include the 1951 amendatorg 

as both date of passage and date of apPPova1 Place lt as 

a &or enactment subject to repeal by a later enactment- Cases 

cited supra; Community Public Servlce?o. v. James, 166 S.W;2d 

395 (Tex.Civ.App. 1942, error ref.). OF rth 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 conflict between them. Stevens v. State, 

this state of affairs It Is impossible to say what 

Legislature intended to prevail in general and speIn 

pay rate the 

clal elections. 

A similar Interpretation problem 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 ef 
HOG. Lloyd 0. Rust, Jr., page 4 (W-445) 

the existing law. The relator had been indicted on charges 

which were a violation of Article 14.04 of the Election Code, 

the penalty for which was set out In Article 14.06, and were 

also a violation of Article 265 of the Penal Code. Articles 

14.04 and 14.06 of the Rlectien Code had made’ changes in the 

existing law in confliat with Article 265 of the Penal Code. 

The court held that Article 265 was saved from repeal by the 

express pr~vlslen of Section 2 of H.B. 6, but this saving 

clause had not produced a repeal of the conflicting provisions 

in Articles 14.04 and 14.06. Both were existing statutory provisions. Being in irreconcilable conflict, neither could be 

given effect. 

In Lea1 v. Rurger, 299 S.W. 497 (Tex.Civ.App. 1927), 

an act passed at the same session as the 1925 Revised Civil 

Statutes and preserved by a saving clauses similar to the one 

in Article 14.11, was given controlling effect over conflictinn 

code provisions.. 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 distinguishing these cases, Since 

Rx parte Sanford is the later expression and involves some of 

the same provisions we are considering, we are disposed to follow Its holding. One possible distinction between 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 amending Article 2943. In view of 

the specific provision in Article 14.11 saving all acts of the 

Regular Session of the 52nd Legislature, we are not able to say 

that this act was repealed by Section 2, Cur conclusion is that 

both Article 3.08 of 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 parte Sanford, supra; Walsh 

v. McConnell, 273 SW. 833 (Tex:Ccm.Apq. 1925); Ramrick v. 

'iii?%? 

127 Tex. 428, 95 S.W.2d 357 ~1936)~; Attly Cen.'Op. 

-15 (1957).,~ As a result, there is no enforceable statutorv 

provision-fixing or limltlng the rate of pay in these elections, 

and it therefore becomes the duty of the commissioners court to 

fix the compensation of the election officers at a reasonable 

amount. Att*y @en. Op. V-749 (1948). What constitutes reasonable compensation is a fact question and the commissioners court 

has the discretion to determine the rate of pay on the basis of 

all the facts. 

The provisions of Articles 3.08 and 2948 are nullified 

only Insofar as they are in conflict. Article 3.08 controls the 

compensation rate in primary elections, since there is no other 

statute in conflict with this provision. 
Hon. Lloyd 0. Rust, Jr., page 5 (W-445) 

The foregoing discussion pertains to pa 

officers where paper ballots'are used. Section 2 t Qf oArticle e1ect1on 

7.14 of the Election Code provides for the rate of compensation of officers in general, special and primary elections at 

polling places where voting machines are used, as follows: 

'I* * l For their services election officials 

and employees shall be paid a sum to be set by the 

authority charged with 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 statute applies 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 8 2. A specific act is not repealed 

by general legislation unless the intent ~to repeal it is clearly 

manifested. Within the Eleation Code itself, Section 24 of Article 7.14 is the controlling statute where voting machines are 

used. The 1951 act amending Article 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 officers where voting machines are used. 

In Opinion v-1528 (1952), this office held that officers in precincts where voting machines are used may receive 

a maximum of $10 for a lo-hour day, with additional pay 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 compensation which the commissioners court may 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 

elections where voting machines are used may be taken as a guide 

to the maximum amount the commissioners court should allow for 

a lo-hour day. 

You have also asked what is the maximum pay of election officers who work less than 10 hours. The statutes provide for overtime compensation at 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 officers who 

work less than 10 hours. We are of the opinion that their pay 

is not limited to this hourly rate and the authority fixing 
Hon. Lloyd 0. Rust, Jr., page 6 (Vu-445) 

their pay may allow them a reasonable compensation, within 

the maximum 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 canvassing boards 

to count absentee ballots may be able to perform their duties 

in a few hours' time, but their pay is not restricted to the 

hourly rate for the time actually consumed In counting the 

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 compensation of judges and clerks in general, 

special and primary elections at a maximum of $10 

for a lo-hour day, impliedly repeals conflicting 

provisions in Article 3.02 of the Election Code, 

fixing the compensation in special elections at 

$5 a day. However, with respect to general and 

special elections Article 3.08 is in conflict with 

Article 2943, R.C.S., as amended in 1951, which 

provides for maximum compensation of $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 statutes and neither can be given effect insofar as they are in 

conflict. There being no enforceable statute flxing the pay of judges and clerks of general and 

special elections serving in precincts where paper 

ballets are used, the commissioners court has 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 statute and controls the pay 

of primary election officers in precincts where 

paper ballots are used. 

Section 24 of Article 7.14 of the Election 

Code fixes the compensation of general, special 

and primary election officers in precincts where 

voting machines are used at a maximum of $10 for 

a lO-hour day. Being a statute of special application, it is treated as an exception to the genera1 provisions. of Articles 8.08 and 2943 and controls in the elections to which it applies. 
. . 

Hon. Lloyd 0. Rust, Jr., page 7 (WU-445) 

The $10 maximum fixed by the Legislature in 

primary elections and in elections where voting 

machines are-used may be taken as a guide to the 

maximum which the commissioners court should observe in fixlng'pay of officers in precincts using 

paper ballots. 

The pay of election officers who work less 

than 10 hours is within the discretion of the authority fixing their compensation but may not exceed the maximum 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