### 810

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
**AUfflN**

Honorable #. Lee O'Danlel

Dear Sirr

**a nntter**  **of ,lai**  **haat** & Oyeter 0eluud.EdoDl @lopted to qualitJT

au ttes of the Dsnrooratio

**(8 Revised**  G&v11 **Btatuts4 of** 

**offifae** or prorit Or **at40 or**  this **&ate, ur**  inthie State, or within er resigning or being cllaoffice, axoept a notary it8 a candidatefor orfloe, or id his Poll %x, shall **-aOt a6**  I 6uprviaor of any **elsotlonl any**  **one act**  **a8 ohairman**  **or a8**  **mmber** of any District,County or City Executive thmlttee of a politioalparty who has not paid his Poll Tax, or who ie a oandidate for offioe, or *o holds any office or profit or truet under either the United State6 Or thle State, or in any **city or**  **town in**  **this tgtatai** HonorableW. Lee O'Daniel,Page 2

or who may be enjoyinggratuitouspassage on street oars or on other public servioe oorporationa,

by reason of his appointment as a specialyolioeman;or any one who has any oonneotion,whatever,with the city, whereby the oity Is justifiedin i::suihg to any such psrreon

rree transportation on the street oars, or franks entitlinghim to the rree use of publia service oorporations, or any pereon who ie regularlyeiuployed in any aapaoity by the city for whoae service8 P. salary or wages ie paid, exoept a notary publlc.m Article 978f, Penal Code tion of the Game, Fish & Oyster Co liilllE~::8,2:2~~~~~:; of six members appointedby the Governor from different seotiona .ofthe State, by and with the advioe and oonnent of the Senate. This arti0l.e provides for the appointmentof auoh members for terms of six years, the terms of the various members being eta&ered. Xaoh member of the GtxnmLaclian ie required to exeoute a bond payable to the State of Tex&r in the sum of $5,000.00, The CoxmiasicmIs authorizedto meke rules and regulatiahefor the oonduot of its **work, not**  **in** consistent

with the Constitution and law6 of the State, and the member6 of the ConmIssionreoeive as oomponaation 2 for their servioee their aotua3 expeneem in the performance of their dutle8. The &mission is given the authmrity to appoint an executive secretary who sots aa the ohief exeeutive offioer tmder the directionof the Commissiou,and it is provided that the Gommiasion may perform its duties through said exeoutiveeeoretaryand nay delegate to him such executive duties es the Gotmaiasion shall deem proper. The Comuieeionhas also the authority to appoint an aeeistant exeoutive secretary, who, in the absence of the exeoutive aeoretary,shall perform all of the duties of the exeoutivesecretary, and suoh other duties a8 may be prescribedby the Gorinniseion.

A Xexber of the Game, Fish & Oyster Gommieaionof Texas clearlyholds a public offioe. Willis V. Owen, 43 Tex, 41; Thomas, et al v. Abernathy County Line Independent School Dietrict,et al, 278 6. W, 312i State of Montana, Xx ml Julius Barney v. R. ET. &m&ins, Yeoretary of State, 257 Paa. 411, 53 A..L. R. 583, and annotetfops. While the office is, in our opinion, not one of profit, because provieion is made only for reinburaeiuent of aOtua1 expensesHoaoreble IV. Lee OvDaniel,Page 3

inourred, the very enumerationof the powers and duties which are posseaeedby the Game, Fish & Oyster Commission laakee it evident that the officewhioh they **hold** under the State is one of trust6

Artiole 16, Seotion 40, of our %onstitutlon,prohibits the holdin% of two civil officzsof~emolument. This aonstltutlonal

provision,however, has applioetiononly to 'publie"offioea. The office of Game, Fish dcOyster Commiesioner IS, of course, a publie office; but the eourte of this State have held that officers of a polltioalparty, suoh acl members of a party exeoutive oommittee, are not pub110 offioera,though they are providedfor by statutory law. 'Walker

v. Mobley 101 Tex. 28, 103 S. **W.** 4901 Walker v. xopping, (Cfv.App.j 226 8. W, 146; Ex **parte** Anderson, 51 Cr. Rep. 239, 102 6. **118.** 727, It is thereforeapperent that the oonstltutionel provisionhas no applicationto the situationpresented in your letter.

LPkewlse,the oomon law rule tith refersnoeto the vacating of one offioe by the aooeptancsof another offioe inoompatiblatherewithdoes not apply to the instant situation.

"Offioezifiam

inoompatible

where their duties are or may be inooneistent or oonfllet,but not where their duties me wholly u&related,are in no manner inaonelstont and are never in eonfliotg and where neither officer is acoouutableto or under the doxlnionof, or subordinateto, the other, or has any right or power to interfere with the other in the performanceof any duty." 34 Texas Jurisprudenoe, p.. 351.
We observeno inoompstibil5.t.y between the holding of the offioe of Game, Fish & Oyster Commissiohor**and** the holding of the position of Cheiman of a County Demooratio ExecutiveCommittee,and no such incorn_patlbility is pointed cut in the materialwhiah accompaniesyour letter. The sole question,therefore,remainingto be disposed of in couneotioh with your Inquiry is that concernin%the effeot of the statuteabove quoted.

There oan be no doubt of the authorityof the Legislatureto provide that the eaoeptffioe and exeroising of the position of Chairman of the County XreoutivekmmitteeHonorable**W.** Lee OVanlel, **Page** 4

of a politloal should operate Party by a person holding a public offlae '

pso raato 

## to vadate that orriee;but this, apparently,the Legislature has not seen fit to do. Artlale.2940

merely provides ane one . , shsll aot as judge, olerk or supervlsor

## 0r any election.

. , nor~sh3ll. anyone act as ahelrmanor as somber of any district, county or alty executivecommitteaof any polltlcalparty who

. . holds any orrlce or prorit or trust under elthar the **United*** States or this state

. . . W

An orrlee holderwho aots In one or the aapaal

## tlssmentiOm3d; lh violation

## or ths provislons

## or Artlale 2940, does not, a6 that article Is or this State, inter

vaoate Ipso faot0 his Preted by the oourts orr ce **under** the State. Savage v. B""f:

hreys, (010.App.) 318 S.W. 9018 Oayle v. Alexander, (C v. App.) 76 S.W, **(2d)** 708.

You are therefore

advised that Mr. Buckner, by aacepting and attempting to exerelre,In violation of Artlole 2940, the orrlae 

## or Caunty Chairmanor tka county D5ooratio Exeoutlye Car;mlttee of Dellas Oountg,did not vacate hia stat,& orflot as raamber

of the We, Fish 6;Oystar Gonunls~ slon.

Yours very truly
ATIoEtNEY

GENERAL OB TEXAB

BY

RwFlGo A

mtstsu--l

ATTORNEYGENERALOF TEXAS