Untitled Texas Attorney General Opinion

December 28, 1966 Honorable Henry Wade Opinion No. C- 792 District Attorney Dallas County Re: Whether a county employee may Dallas, Texas receive pay for working as an election clerk on a holiday, and also receive hid regular salary for that day; and a Dear Sir: related question. You have requested an opinion on the following:two questions: Question No. 1: Can a regular employee of Dallas County whose elected department head is not on the ballot, be paid for services perfoamed .~. as an election clerk in the last general election, whiqh was a.county holiday, and also receive his re@alar county salary for that day? Question No. 2r, Can regular employees o,fthe Dallas County Clerk's office be paid for working after hours for taking in election returns and delivering the absentee ballots? You have excluded from your question those employees who would be disqualified to serve .as election clerks because of the prwision in Article 3.03 of the Texas Election Code which disqualifies any person "Who is employed by any candidate for a lucrative office, whose name appears on the ballot in that election." Article 3.04 of the Election Code prwides that "no one who holds an office of profit-or trust under * * * this atate * * * shall act aa judge, clerk, or watcher of any election, general, special, or primary." Persons holdihg certain positions in gwernmental service are classifies as officers. while persons holding other positions are classi- fied as mere employees. This distinction and the criteria -3800- Hon. Henry Wade, page 2 (C-792) for classification are discussed in cases cited in the footnotes to 47 Tex.Jur.2d 13, Public Officers, Sec. 3. The disqualification in Article 3.04 of the Election Code applies only to those individuals who are classified as officers. Att'y Gen. Gp.~G-2056 (1940). You have not statea mat positions are involved in your opinion request. Since the status of each position must be determined on the basis of its own character- istics, we cannot say whether the individuals Involved.in your first question were or were not eligible to serve as election clerks, but for your information we tre attaching copies of Opinion O-2056, supra, and Attorney General's Opinion O-384 (1939), which discuss the status of a number of different positions. As a loosely stated general rule, ordinarily per- sons holding positions as deputies in the various county offices are classified ~a8 officers; those in other types of ,positions are classified as mere employees. The day of the general election is a state holiday on which~-countyoffices may be closed. Arts. 4591, 237211,; and 2372h-1,..V.C.S. For a county emplbyee,eligible to serve as an election clerk, we.are not aware of any constitutional provision, statute, or legal principle,which woulclprevent his being paid under Article 3.08 of the Election Code for servicesperformed on.a holiday when county offices are closed or at any other time 'which doss not conflict with his working hours as a county em- ployee. Article XVI, Section 40 of the Texas Constitution, pro- hibiting dual officeholding, is not applicable, since neither the regular employment of the person nor his service as an election clerk places him in the category of an officer. Al- though the term "election officers" is frequently used in re- ferring to the judges and clerks of an election, th8 character- istics of an election clerk's services do not make him an officer as the term is used in this section of the Constitution. Nor is payment for these services contrary to Article XVI, Section 33 of the TexasConstitution. which prohibits the accounting officers of the State from drawing or paying a warrant upon the Treasury as salary or compensation to anyone who at the same time holds any other office or position of honor, trust or profit under this State or the Unitea States. As used in this section, the word "Treasury" means the State Treasury. Att'y Gen, Ops. O-4982 (1942) and WW-1316 (1962). Whatever might be the effect of this prwision on individuals who are paid from the -3801- Hon. Henry Wade, page 3 (C-792) State Treasury, it:~isnot applicable to individuals who are paid from other public funds. In the present instance, payment for each service would be made from funds in the county treasury. Your second question is whether employees in the County Clerk's office ,znaybe paid for working during hours that they are not regularly required to k2 on duty, in performance of serv- ices which the County Clerk is required by law to perform and which by their nature cannot be deferred until regular working hours. Tex. Election Code: Art. 5-05, subaivs. 4, 5, and 6; Art. 7.14, Sees. 7 and 18; Art. 8.25: Art. 8.30; Art. 8.,32. The Commissioners Court of Dallas County has authority to fix the salaries of the employees In the County Clerk's office, and to regulate the92 hours of work. Vernon's Texr Civ. St.: . Art. 3912e-4a, Sec. 4; Art. 3912e-4b; Art. 3912e-4d, Se& 9. There is no statute or other rule of law which would prevent the Comissioners Court from authorizing additional pay for these extra services. Cn the other hana, there is no provision of law which would compel the granting of additional pay. It is within the discretion of the Conmissionera Court to deciae whether the employees are allowed additional pay, are given compensatory time off, or are required to perform these services as an inci- dent to their regular employment without additional pay or com- pensatingtimec SUMMARY Persona holding certain positions in governmental service are classified as officers while parsons , holding other positions are classifies as mere em- ployees . A person who is merely an employee in a department of the county government is not disquali- fied from servdng as an election clerk in a general election. He may be paid for services performed as an election clerk on a holiday when the county office was.closed a&may also receive his regular county salary for that day. Tax. Election Code, Arts. 3.04 and 3.08. It is within the discretion of the Coxsnissioners Court of Dallas County to aeciae whether regular em- ployees of the Dallas County Clerk’s office will be -3802- Hon. Henry Wade, page 4 (C-7921 given pay in addition to their regular salary for working after hours in performance of duties which,: the County Clerk's office is required to perform ..' in connection with an election. Yours very truly, ,.. WAGGONER CARR Attorney General w. -zi,e By:Mary K. Wall Assistant MKW:ra APPROVED OPINION COWMITTEE: W. 0. Shultz, Chairman John Reeves Pat Bailey John Banks Ralph Rash APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright - -3803-