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 candidate for 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 politioal party 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 
Honorable W. Lee O'Daniel, Page 2 

or who may be enjoying gratuitous passage 

on street oars or on other public servioe 

oorporationa, by reason of his appointment 

as a special yolioeman; or any one who has 

any oonneotion, whatever, with the city, 

whereby the oity Is justified in i::suihg to 

any such psrreon rree transportation on the 

street oars, or franks entitling him 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 appointed by the Governor from different seotiona .of the State, by and with the advioe and oonnent of 

the Senate. This arti0l.e provides for the appointment of 

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 Coxmiasicm Is authorized to meke 

rules and regulatiahe for the oonduot of its work, not inconsistent with the Constitution and law6 of the State, 

and the member6 of the ConmIssion reoeive 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 direction of the Commissiou, and it 

is provided that the Gommiasion may perform its duties 

through said exeoutive eeoretary and nay delegate to him 

such executive duties es the Gotmaiasion shall deem proper. 

The Comuieeion has 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 exeoutive secretary, and suoh other duties a8 may be 

prescribed by the Gorinniseion. 

A Xexber of the Game, Fish & Oyster Gommieaion of 

Texas clearly holds 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 expenses 
Hoaoreble IV. Lee OvDaniel, Page 3 

inourred, the very enumeration of the powers and duties 

which are posseaeed by the Game, Fish & Oyster Commission 

laakee it evident that the office whioh they hold under the 

State is one of trust6 

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

aonstltutlonal provision, however, has applioetion only to 

'publie" offioea. The office of Game, Fish dc Oyster Commiesioner IS, of course, a publie office; but the eourte 

of this State have held that officers of a polltioal party, 

suoh acl members of a party exeoutive oommittee, are not 

pub110 offioera, though they are provided for 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 therefore apperent 

that the oonstltutionel provision has no application to the 

situation presented in your letter. 

LPkewlse, the oomon law rule tith refersnoe to 

the vacating of one offioe by the aooeptancs of another 

offioe inoompatibla therewith does 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 acoouutable to or 

under the doxlnion of, or subordinate to, the 

other, or has any right or power to interfere 

with the other in the performance of any duty." 

34 Texas Jurisprudenoe, p.. 351. 

We observe no 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 

Executive Committee, and no such incorn_patlbility is pointed 

cut in the material whiah accompanies your letter. The sole 

question, therefore, remaining to be disposed of in couneotioh with your Inquiry is that concernin% the effeot of the 

statute above quoted. 

There oan be no doubt of the authority of the 

Legislature to provide that the eaoeptffioe and exeroising 

of the position of Chairman of the County Xreoutive kmmittee 
Honorable W. Lee OVanlel, Page 4 

of a politloal 

should operate P 

arty 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 ahelrman or as somber of any district, county 

or alty executive committea of any polltlcal party who . . 

holds any orrlce or prorit or trust under elthar the United* 

States or this state . . . W 

An orrlee holder who aots In one or the aapaaltlssmentiOm3d; lh violation or ths provislons or Artlale 

2940, does not, a6 that article Is 

or this State, 

inter 

vaoate Ipso faot0 his P 

reted 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 Chairman or 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 

ATTORNEY GENERAL OF TEXAS