Untitled Texas Attorney General Opinion ( 1958 )

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June 12, 19%
Hen. Lloyd Q. Rust, Jr. Opinion No. W-445
County Attorney
Wharton County Re: Raxlmum pay of judges and
Wharton, Texas clerks of general and spe-
cial elections.
Dear Mr. Rust:
IOU 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 offi-
cers 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 Com-
mlsaloners Court of the county where such services
are rendered, and in primary elections by the County .
Executive Committee of the party conducting such prl-
mary election, but same shall not exceed Ten Dollars
($10) a da ‘for each judge or clerk, nor exceed One
Dollar ($13 per hour each for any tl.meIn excess of
a day's work as herein defined. l * * Ten (10) work-
ing hours shall be considered a day within the mean-
ing of this Artlcle. + * +I’
Article 3.02 of the Election Code, based on former
Article 2938, R.C.S., contains the following provislon$
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 prl-
mary 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 to the
presiding judge for making return-of the election."
The Election Code was passed by the 52na Legislature
on May 30, 1951, and was approved on June 28, 1951, to beeeme
effective on January 1, 1952.
--*.- The 52nd Legislature also passed an amendment to Artl-
cle 2943, Revised Civil Statutes, which set tne maximum compen-
sation 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 spe-
cial 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, 1.18Tex.
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 elec-
tions 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 ; Att'y Qen. Ops.
o-3682 and 3931 (1941~). However, Article of the EM&ion
Code contains this further provision:
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Hon. Lloyd Q. Rust, Jr., page 3 (VW-445)
“All laws and parts of laws in conflict here-
with are repealed In so far as such laws are In
actual conflict with the provisions 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 Legislaturepassed 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.lngor 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 Sec-
tlon 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 Arti-
cle 14.11 in case of conflict between them. Stevens v. State,
supra.
In this state of affairs It Is impossible to say what
pay rate the Legislature intended to prevail in general and spe-
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 pro-
visions. 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 clausessimilar 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-thatthe saving clause-
enactments of prior Legislatures rather than of the same Legis-
lature, 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 fol-
low 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.
127 Tex. 428, 95 S.W.2d 357 ~1936)~; Attly Cen.'Op.
'iii?%?
-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 reason-
able 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 2t of
Qf Article
e1ect1on
7.14 of the Election Code provides for the rate of compensa-
tion of officers in general, special and primary elections at
polling places where voting machines are used, as follows:
'I** l F o r their services election officials
and employees shall be paid a sum to be set by the
authority charged with holding the election or pri-
mary 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 excep-
tion to the general law on pa of election officers. 39 Tex.
Jur., Statutes, Sets. 81 and 82. 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 Ar-
ticle 7.14 is the controlling statute where voting machines are
used. The 1951 act amending Article 2943 did not expressly re-
peal 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 of-
ficers 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 com-
missioners court may allow in the absence of a controlling stat-
ute, 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 elec-
tion officers who work less than 10 hours. The statutes pro-
vide 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 actu-
ally 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 restrictedto 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 lo-
hour day and which was saved from repeal by Arti-
cle 14.11 of the Election Code. Both Article 3.08
and Article 2943 are unrepealed statutes and nei-
ther can be given effect insofar as they are in
conflict. There being no enforceable statute flx-
ing the pay of judges and clerks of general and
special elections serving in precincts where paper
ballets are used, the commissioners court has au-
thority 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 con-
flict 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 appli-
cation, it is treated as an exception to the gen-
era1 provisions.of Articles 8.08 and 2943 and con-
trols in the elections to which it applies.
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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 ob-
serve 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 au-
thority fixing their compensation but may not ex-
ceed 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