THE ATTORNEY GENERAL 

OF TEXAS 

CRAWPORO c. MARTIN AUSTIN. 'l-xcx~s VI3711 

*TroaRN6x OEmmaAl. 

April 7, 1967 

Hon. Charles H. King, Jr. 

Commissioner 

Opinion No. M-53 

Bureau of Labor Statistics 

Austin, Texas 

Re: Under the stated fact 

situation, whether an 

employee must be glven 

time off to vote while 

engaged in working overtime hours at his request, 

and if the employer is 

compelled to allow the 

employee sufficient time 

off to vote, is the employer required to cpmper)- 

De&r Commissioner King: 

sate him at the overtlrpe 

wage rate. 

You have requested an opinion of this office concerning the 

above captloned matter under the following set of faats: 

"An employee, upon arriving at work on electlon day, Indicates his desire to work overtime, 

should overtime be necessary, for that particular 

day. This particular employee then works his 

regular eight hour8 and is subsequently offered 

a chance to work several additional hours overtime as he had previously requested. The employee accepts the overtime and then works for two 

and one-half hours during the overtime period up 

to 6:30 p.m. The employee then requests that his 

employer permit him time off to vote in a local 

election and that he be compensated at the overtime rate during his absence while voting." 

Article 209, Vernon's Penal Code provides as follows: 

"Whoever refuses to an employee entitled to 

vote the privilege of attendlng the polls, or 

subjects such employee to a penalty OT deduction 

of wages because of the exercise of such privllegeX 

shall be fined not to exceed five hundred dollars. 

This statute was originally enacted a8 a part of the Terre11 

Election Law in 1905. Since its enactment, the statute has not 

been before an appellate court of this state for construction or 

- 242 - 
Hon. Charles H. King, Jr., page 2 (M-53 ) 

application. In Attorney General's Opinion V-1532 (1952), this 

office held that an employer Is not required to give an employee 

time off to vote where the employee has sufficient time to vote 

outside his working hours. If an employee does not have sufflclent time to vote outside his working hours, It would be a 

violation of the statute If his employer denies him additional 

time as Is necessary for exercising his privilege of attending 

the polls. Sufficiency of time was held to be a question of 

fact depending upon the circumstances In each partlcirlar oasei 

In light of this holding, If the employee under the facts 

stated In your opinion request had sufficient time to vote 

outside his working hours, the employer would not be required to 

allow the empl'oyee to leave his employment for the purpose of 

voting. 

Should the employee not have sufficient time to vote 

outside his working hours, the employer normally would be required 

to permit the ~employee sufficient time off to attend the polls 

without any deduction of wages because of the exerclse.of that 

privilege. Attorney General'8 Opinion V-1532 (1952). However, 

under the stated facts the emp,loyee would have had sufficient 

time to vote after he had completed his normal working hours at 

4200 p.m.., and the employer would not have committed a violation 

of the statute had he refused to give such employee time off to 

vote during his normal work period. Since the employee was not 

being required to work beyond 4~00 p.m., he was free thereafter 

to exercise hls freedom'of choice to vote or not to vote.' Therefore, It Is the opinion of this office that, when the employee 

voluntarily requested to be permitted to work overtime hours 

beyond 4~00 p.m., he elected to work such additional hours as 

the employer deemed necessary In providing him the opportunity. 

In making such election the employee exercised his freedom of 

choice of attending or not attending the polls, which is the 

right created by the statute. The employer has not denied the 

employee the privilege of voting because unquestionably the employee had that right until, by his own action, he relinquished 

it by requesting the overtime work for his own pecuniary 

benefit, Instead of using this time to exercise his privilege of 

voting. In making his election the employee has accepted the 

privilege of working the additional hours on the terms and 

conditions offered by the employer, and should not thereafter 

be allowed to revoke his action as the employer has the right to 

rely upon this acceptance in planning his work schedule, production 

requirements and employee complement necessary for the overtime 

period. To hold otherwise would create an undue burden on the 

employer If he were faced with the possibility of his work force 

abandoning the job after he had planned his work schedule, based 

upon the employees' assurance that they would be available and 

working. 

- 243 - 
Hon. Charles H. King, Jr., page 3 (M53 ) 

With regard to your second question, In view of our holding 

above It Is clear that the employee In question would not be 

entitled to be compensated, either at his remlar rate of pay 

or at the overtime rate, should the employer voluntarily permit 

him to leave the job for the purpose of attending the polls. 

If an employee voluntarily requests to work additional hours 

and then requests permission to leave his employment to vote, 

he Is attending the polls on time which Is outside his re ulred 

working hours and for which, in any event, he Is not en * 

to any compensation from his employer. 

Conversely, If at the employer's election, he requires 

his employees to work additional overtime hours and such employees do not have sufficient time to attend the polls outside 

of their normal and overtime working hours, the employer would 

be required to allow these employees sufficient time off to 

vote, should It be requested, without any deduction from their 

wages because of the exercising of such privilege. In this 

situation It would make no difference whether the employees 

were permitted time off during' their re@lar working hours or 

their overtime hours as their total compensation would be the 

same, as If they had not taken time off to vote. 

SUMMARY 

Under the stated facts, Article 209, V.P.C., 

does not require an employee to be given time off 

to vote while working overtime hours that he had 

voluntarily requested. If the employer voluntarily 

permits such employee time off to attend the polls, 

during such overtime period, the employee Is not 

entitled to be compensated for such time, either at 

his regular rate of pay or at the overtime rate. 

Prepared by Robert W. Norris 

Assistant Attorney General 

APPROVED: 

OPINION COMMI'ITEE 

Hawthorne Phillips, Chairman 

W. V. Geppert, Co-Chairman 

- 244 - 
Hon. Charles H. King, Jr., page 4 (M-53 ) 

Mary K. Wall 

Marvin Sentell 

Lonny Zwlener 

John Banks 

STAFF LEGAL ASSISTANT 

A. J. Carubbl, Jr. 

- 245 -