Untitled Texas Attorney General Opinion ( 1965 )

Ho-ember 30, 1965
Honorable M. E. Laas Opinion Ro. c-555
County Attorney
Austin County Ret Whether an election judge
Bellville, Texas who delivers the returns of
an election on the morning
after the ,electioninstead
of immediatelyafter the
votes are counted ie entitled
to any compensationfor his
services in delivering the
returns and unused election
Dear Sir: supplies.
Tour request for an opinion of this office on the above-
captioned subject reads as followsr
"Chapter 678, page 1554, Act of the 59th'
Legislature,1965, section 3, has amended Article
3.08, Vernon's Pexae Election Code, so that it
now,in part reads:
1:
I. * . A judge who delivers returns of the
election immediatelyafter the votes have been
counted shall be paid Five Dollars ($5) fox that
tiervice;provided also, he shall make returns of
all election supplies not used when he makem the
return of the election.'
"The County Judge's writ of election stipu-
slatedthat such.retums were to be made immediately
after the election, is in proper statutory form end
was duly and timely served on the proper election
,j;j.efor ty election that yas held on Hovember 2,
.
'geveral of the election judges In Austin
County, Texas, did not make their return of the
election, nor deliver their election supplies
until after 88~0 o'clock A.M. on the~morningof
Bovember 3, 1965.
-2680-
. .
Hon. La.E. Lass, pa@ 2 (c-555)
"In all of these case8 the votes had been
fully counted and the returns ready for delivery
before midnight of Rovember 2, 1965.
"We have two questionswe would like for
you to crower for us:
"1. Can the CommissionersCourt lawfully
refuse to pay the election judges meJcinglate I
election returns?
O2. Can the election judges making late
returns lawfully be paid any,considerationwhat-
ever for mking such late returns?"
We have reached the conclusionthat under the facts
stated in your opinion request, the CommissionersCourt of Austin
County cannot lawfully ,refuseto pay the amount stated in Article
3.08 to the election judges involved in your request.
The history of five different articles of the Texae
Election Code is pcrtlncnt to the constructionof the provision
under consideration,namely, Articles3.08,,8..29,8.30; 8.31 and
8.32.
:
The Revised Civil Statutes of 1925, as originally
,enacted,contained the followingprovisions:
"Art; 3026. ,Returnof election&. --When the
ballots have all been counted, the managers of the
election in person shall make out triplicate re-
turns of the same, * * * one of which returns, to-
gether with the poll lirts and tally lists, shall.
be sealed u in an envelope and delivered by one
of the prec,
-% ct judges to the county judge of the
couuty; + * *:e
“Art. 3027: To be stored. ,-+ne of the
precinct judges shall deliver the rcturne of
election with certified lists of qualified voters,
with all statdonery,rubber stamps and blank
forms and other election suppliesnot used, to
the county judge, ismediatelyafter the votes
.
have been counted. l l *'" (Emphasis added
throughout.]
-2681-
Hon. 1. E. Lama, page 3 (C-555)
"Art. 2943. Pay of judges aud olerks.
Judges and clerk6 ~ofgeneral and special
elections shall be paid three dollars a day
each, and thirty cents per hour each for eny
time in excess of a day's work as herein dc-
fined. The .fudaerho delivers the returns of
election immedi&ely after the votes have
been counted shall be paid two dollars for that
service, provided the polling place of his
precinct is at least tiremiles from the court-
house, and provided also he shall make re-
turns of all election supplies not used when
he make6 return of the election. + * l.”
In 1925 there was no statute defining more epecifically
the term "immediatelyafter the votes have been counted."
A8 we interpret the above-quotedrtatutes, we think it likely
that thie term a6 used in Article 2&j wan Intended merely to
iden;tifythe eervice for which the compensationwas to be paid,
I.@., the delivery of the returns after the election hae been
held, and was not intended to mehe delivery within a given
period of time a condition precedent for entitlement to coskpensa-
tion for the,service, ae did the provisions with respect to
dietance of the polling place from the courthouseand with “.'
respect to return of unused election supplies. If that was
true, we believe the tern continue4 to have the same rignificance
in the 1965 amendment to Article 3.08 of the Election Code.
However, assuming that timely delivery was a condition,for
payment, we'belicve the exmwer to your que~stion would be the
same under eithsr~contttruction of the provision.
In,Hicks v. Hatthcus, 153 Tex. 177, 266 S.W.2d 846,
849 (1~54)~ the Supreme court of Texas discussed the meaning
of the word "ismediatcly,"as follows:
'* l * The word Wnmediatcly~ is a term
of relative signification. Sometimes it is
understood to acan instantaneouslyor without
interventionof time, but as used in mart
statutes, it is not to be construed 60 strictly.
The law must be given a practical and reasonable
application, Accordingly,, the-yoti limmediatelyt
is very generally held to mean with due diligedce
-2682-
Hon. M. E. Laa6, page 4 (C-5%)
Numerous other cases have xade similar comments on
the flexibilityof the meaning of the word. See, for example,
the quotationsin Querra v. State, 155'Tex.Cri.m. 306, 234 S.W.2d
866, 868 (195(l),
one of which 1s 4s follows:
"The word ~inmediately,~whet&es occuring
in contracts or statutes, refers to the act that
must be performed within such convenienttime as
is reasonably requisite,and what is a reasonable
time must be determined from the facts of the
particular ca6e.'
Pioneer Casualty Conwanv v. Blackwell, 383 S.W.26 216,
219 (Tex.biv.Atm.lob4. error ref. n.r.e.1. 6ai.dthat a requirement
that‘an act be=perfor&d ";Lmmediatelyw me&t 'within a reasonable
time under the circumstances,and ordinarily is a question of fact."
In:1933 the Legislatureenacted a statute specifyingan
exact tine limit within which the returns were to be delivered
to thecounty judge. Acts 43rd Leg., B.S., ch. ?28, s&.,1, p.
769, codified asArt. 3926a, V.C.8.' It provided that,the presiding
judges in general and special elections shall, within seventy-two
hours after the closing of the polle in said general end special
elections,make a.report of the returns of said election to the
County Judge of their respective counties * * *." Section 3 of
the Act (codifiedas Article 231b of Vernon's Texas Penal Code)
made it a misdemeanor offense for any presidirigjudge to,fail
to make the complete official returns within the prescribed time'
limit. Article 2943, relating to pay of election judges, was
not mended.
In the Ele,ctionCode of 19 1, the time limit in former
Article 3026a, which became Article i3.30 of the Election Code; ~_
was changed to provide that the returns were to be forwarded to
the county judge "within thirty-six (36) hours after all votes
have been cowted and tabulated;which said count and.tabulation
must be completedwithintwenty-four (24) hours after the closing
of the polls." Former Article 3027, which became Article 8.31
of the Election Code, was amended to provide that the returns
and unused supplies were to be delivered to the county judge
'within twenty-four (24) hours after the votes have been counted,"
in lieu of the former provision requiring delivery "ieusediately
after the votes have been counted. Former Article 2943, re-
lating to pey of election judges and cleyks, had been amended in
1937 and 1945 to make various chmges, and other changes were
also made in 1951 when it was carried forward ae Article 3.08
-2683-
Hon. M. E. Lams, page 5 (C-555)
9f the Election Codes but in each instance no change was made in
the provir$on that "the judge who delivers the returns of eLection
Immediatelyafter the votes have been counted shall be paid Two
Dollars for that service."
Laying aside the question of what effect performanceat
a later time would have had on entitlementto pay, we have no doubt
whatever that as the law stood in 1951 an election judge who
delivered the returns wLth$n the time limits specified in Arti e
8.30 and 8.31 would have been entitled to pay for the service.3
In o'therwords,'the term "immediately"as used in Article 3.08
was not intended to mean instantsneouslyor without intervention
of time.
In 1963, Article 8.30 of the Election Code was amended
to require dellvery of the returns to the county judge "imniediately
aster all votes have been counted and tabulated, and not later
than twenty-fourhours after the clostng of the polls," in lieu
of the former provision requiring the returns to be forwarded
within 36 hours after the counting of the ballots had been corn-
pleted. ,Article8.31 was also amended to provide the same time
lilaitfor returning the unused election supplies, substituting
the countyclerk for the county judge as the officer to whom
the unused aupp3,ieewere to be del,ivered.Article 8.32 was
amended to provide the same time limit for delivering the counted
ballots to the county clerk. As used in.these three amendments,
the word "Immediately"evidently was intended to mean that the
returns were to be brought in for delivery without any appreciable
lapse of time after the ballots were counted. Twenty-fourhours
after the closing of the polls was fixed as the absolute deadline
for timely performance.
I131963, Article 3.08 was also amended in the same bill
in the foregoing paragraph. The pro-
with the articles;.~mentloned
L/,!Cherewas a slight inconsistencybetween these'two
articles as to the deadlane 'fOFdelivering the returns. Article
8.30 provided for forwardingof the!returns within 36 hours after
all votes had been counted, while Article 8.31 provided for
delivery withti 24 hours after completionof the count;
-2684-
Hon. M. E. La&s, page 6 (C-555), :i ,I ;
vision with which we are,here concernedwas amendi+ to read,.+?!
follows:
"* * * The judge who delivers the returns'::
of election may be paid an amount notto exceed
two dollars for that service; provided, also,
'he shall make returns of ballots, ballot'boxes,
and election supplies not used when he makes
returns of the election."
This amendment deleted the language "immediatelyafter
the votes have been counted,"'although Articles 8.30, 8.31, and
8.32 were amended to require immediate deliVeFy. Obviously,
the Legislature did not intend to make immediate delivery, under
the ~meaningit had given to the ,termin the 1963 amendments,a
condition for payment for this service.
Article 3.08 was amended in several other respec~tsin
1963, which brought ~abouta substsntial,revisionof the language
.throughoutthe statute. Article 3.08 was again amended in 1965
rates specified in the statute.
3 p. 1554. From,a compari~ZYo?g``e
&We 3.08 as enacted in 195land as
amended in 1963, it is evident that the lg.51statute rather ~than
the 1963 statute was used!as the basis for the 1965 amendment.
In 1951, the provision under considerationread as folldws:‘
."k* *'The judge who delivers the returns ,~'
of election immediatelyafter the votes have been ',
counted shall be paid Two Dollars ($2) for that
service; provided, also he shall make returns of
all election supplies not used when he makes
returns of the election."
Besides changes in pay provisions for services rendered
at polling places, the 1965 amendment changed the provision on
pay for delivering the returns, so that it now readst ~,,
vi + *'A judge who deliversreturns of
the election immediatelyafter the votes have
been counted shall,be paid Five ~&llars ,(&)
for that service; provided also, he shall
make returnsof all election supplies not used
when he makes the return of the election."
,-2685-
Eon. M. E. La&a, page 7 (C-555)
The change& other than the Increase from $2 to $5, is
to use the language a judge who delivers returns" in place of
"Ehe judge who delivers the returns". Undoubtedly,there is
room for argument that by this change in language the Legis-
lature intended to change the significationof the word
"Immediately"as used in the 1951 statute, .sb as to give it the
same meaning as,in Articles 8.30 and 8.31 of the Code. However,
we do not believe this alteration in wording Is sufficient
evidence of such an intent to support a constructionwhich would
depart so radically from the former meaning of the provislon as
it had existed over a long period of years. We are of the
opinion that, as in 1951, an election judge who delivers the
returns before the deadline fixed by Articles 8.30 and 8.31 is
entitled to the pay provided for that service.
Since the returns in question were delivered before
the deadline of 24 hours after closing of the polls, we are
of the opinion that the election judges are entitled to receive
$5.00 for the (Iervice,as provided in the 1965 amendment.
It is not necessary in this opinion to consider whether
a judge who did not deliver the returns until after the 24-hour
deadline would be entitled to compensationfor the service.
Under the terms of AFtiCle 3.08 of Vernon's
Texas Election Code, as amended in 1965, an
election judge who delivers the returns of the
election and the unused election supplies to the
proper authoritieswithin the statutory deadline
of 24 hours after the closing of the polls, as
provided in Articles 8.30 and 8.31 of the Election
Code, is entitled to $5.00 for that service.
Pours very truly,
WAOGOKER CARR
Attorney General
MKwrFa:sj
-2686-
.
Hon. M. E. La&e, page 8 (C-555)
APPROVFlDr
OPIm.OR COMMITTEE
W. V. Qeppert, Chairman
Brandon Biekett
Howard Fender
Gordon Homer
Ben Harrlfson
APPROVEDFUR TBEATTORREYQERERAL
BY: T. B. Wright
-2687-