Untitled Texas Attorney General Opinion

6,;

TlE?IE .c%-JITORNEY GENERAL OP TEXAS

Honorable M. B. Morgan Opinion No. WW-372 Commissioner Bureau of Labor Statistics Re : Maximum number of hours Austin, Texas a female employee may work,under the provi- sions of Article 5172a in any one period of twenty-fourconsecutive Dear Mr. Morgan: hours. : You have requested our opinion on the constructionof Sections 1 and 13 of Article 5172a, Vernon's Civil Statutes and ask to be advised if the term "calendar day" as used In Section 1 and the term '#dayof twenty-fourhoursA Section 13, both mean a period.of time beginning ai ",;:%e&E night to 12:00 P.M. Section 1 Article 972a, Vernonls Civil Statutes, "reads in part as fo&Us: "No female shall be employed in a factory e 0 0 for more'than nine (9) hours in any one calendar dav nor more than fifty-four (5%) hours in any one cal- endarweek." (Emphasisours). Section 13 Article 5172a,-,.Vernon?s Civil Statutes, reads in part as follows: n. . 0 female to work in any place mentioned in Sections 1, 2 and 3 of this Act more thano;heti;zber of hours provided therein in any one dav Y- in any one calendar week, 0 o ett (Empha-

Are the terms synonymous,and does Section 13 prohibit a female employee working in designated places for more than the specifiedhours in any one period of twenty-fourconsecutive hours? This question seems to have been settled by the Supreme Court of Texas in Lorulv. City of Wichita Falls, 176 S.W.2d 936, 142 Tex, 202, when the Court had before it a similar question construing the term "calendar day" and the undefined term "day",

Honorable M. B. Morgan, page 2 (w-372)

in Article 1583, Vernon's Annotated Penal Code, relating to the permissiblehours of employment for firemen in municipali- ties of various categories, There the term "calendarday" was defined as being "the time elap&g from one midnight to the successiveone". Such constructionwas said to be a rule ordinarilyadopted and followed merely as a matter of convenience. The undefined term "dayc'was defined as "the period of time during which the earth makes one revolution on its axis, the interval of time which elapses between two consecutivereturns of the same terrestrial meridian to the sun; the average length of this interval, twenty- four hours". It is our opinion and you are so advised, that the two .termsare not necessariIy synonymousand do not necessarily refer to the same period of time. .In.orderto determine what constructionshould be placed on the term "day", as used by the Legislaturein the stat- ute here under construction,we must look to the purpose intended to be accomplishedby the Act and the effect that it will have when so applied to the subject matter. Lona v. Citv of Wichita Falls. suura. Its obvious purpose is the protectionof health and the prevention of hours of employment that may add to the hazards of employment. In our opinion, such purpose would not be served by a constructionwhich allowed female employees to work maximum hours in two calandar days, but within one period of twenty-fourconsecutivehours. %y construing "day of twenty- four hoursl'to mean a calendar day from midnight to the success- ive midnight, a female employee could be required to begin work at 3:00 P.M. on one afternoon and continue working until 9:OO A.M. the following morning, without violation. Such construction would defeat the purpose of the Act, in our opinion. That the legislativeuse of the two different terms indicates a legislativeintent to distinguishbetween a midnight to midnight calendar day and a period of twenty-fourconsecutive hOtIm, is made clear by Lona v. Citv of Wichita Falls, Suora. OOur position that the Legislaturedid not in- tend to restrict the rest period to be allowed fire- men in cities of less than 75,000 population to a : : 'calendarday' is evidenced,we think by the lan- guage of the statute as a whole. Seckon 1 of the Act, which regulates cities of more than 25,000 and less than 75,000 inhabitants,provides that the fire- men shall not be required to be on duty more than 'six (6) days in any one week,' and nothing is said

Honorable M. B. Morgan, page 3 W-372)

about calendar days or calendarweeks. On the contrary, the Legislature,when it attempted to deal with cities of over 75,000 population in Section 6 of the Act, expressly stipulatedthat firemen should not be required to work more than twelve hours per 'calendarday or more than seventy-twohours in any one calendar week.' This, to our minds evidenceslegislative intent that the calendar Aay and the calendar week should be applied in regulating the work periods of firemen in cities with a population in excess of 75,000, but that such limitation should not be required in cities with a less populat.ion,11 (Emphasisby the Court). Also see Citv of Amarillo,v,York; et al., Supreme Court, 142 Tex. 210, 176 S.W,2d 935 reversing &&Y of Amarillo v. York, 167 S.W.2d 787, where the Court of Civil Appeals held the term "daytlto mean the usual calendar day from midnight to midnight. The language of Section 13 specificallyindicates~ which period it means by placement of the words "of twenty-four hours" after the word "day".. In our opinion, Section 13 clearly prohibits the working of female employees in excess of the maxi- mum number of hours in any one period of twenty-fourconsecutive -hours, and you are so advised. SUMMARY As used in Article 5172a, the terms "calendar day" in Section 1, and "day of twenty-fourhours" in Section 13 are not synonymousin constructionalcon- text,*but the limitations on female employees working in excess of designatedhours within a "day of twenty- four hours" refers to a period of twenty-fourconsecu- tive hours, and not a period only from one midnight to the successiveone. Yours very truly, WILL WILSON Attorney General of Texas .,: I,.: "y c&, & ii ;/" '!;;I .;r.< q Tom I. McFarling : a- TIM:jl:wb Assistant

Honorable M. B. Morgan, page 4 (ww-372)

APPROVED: OPINION COMMITTEE Geo. P. Blackburn Cecil C. Rotsch J. Mark McLaughlin J. Milton Richardson John H. Minton, Jr. REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert