w. W. J. Tucker

Executive Secretary Game, Fish & Oyster Cmmission .Austin,Texas
Dear Sir: opinion No. 0-1410~ 'Ee,,Whethera superintendentor an assistant superintendentof a State fish hatoherymay be emmissioned as a game aud fishrardenwithout additional pay 

### forthe servioesto 

### be performed.
Your letter of September 9, 1939 is reoeived,whereia you ask the opinion of this depprtrnent upon the question indioated inthe oaptiouabove. Article 16, Section 40 of the Texas Constitutim is not iuvolved, for thereasonthat uuder

### your statementof facts no emolument is tobe attaehed>to the duties to bs psrof5nred by a game and fish warden in this particular instauae.

Likewise,we are unable to observe a~ inmnpatib)lity betmen the duties to bs performed as gem and fishuaudeo and the duties to be prformed as hatchery superintendaud, therefore,we are of the~opinicmthat the oamon law rule applied in this State, prohibiting the holding of inoanpatible dffioes, does not apply to your situation.

He therefore advise thatit is the opinion of this departmentthat 'theExeautive Secretaryof the Game, Rlsh and Gyster Conmissionmay oomidaslon a hatchery superXntende!rt or assistanthatchery supsrintemdentas gme & fish-warden; suoh hatohery superintendentor assistant hatcherg superiatendmit to receive no ocenpensation for such setioes as are performed as gmm and fishwarden, but only to rsoelw suah caapsnsationas is prescribed for. a,hatohery superintendent01 assist@& hatchery superintendentin the department appropriation bill.

The broader question, homwr, involved in your Inquiry is whether, under such cirwmstsnoes, the person thus appointedmay reoeive any compsneation whatsoever for his semiaes, under Artiole 16, Section 33 of our State Canstitution,whioh reads as follows: 'The account&g officersof this State shall aeither draw nor pay a rarrant upan the Treasury in favor of any p&son, for salary or oompeusationa8--.. __

Mr. W. J. Tucker - page 2 (O-1410)

agent, officer or appointee,who holds at the same time any other offioe or pOSitiOn of honor, trust or profit, under thia State or the &ited States, except as prescribed in this Constitution. Protided,ttjhat tNs rbatriotion as to the drawing 8md paying of warrants upon the Treasury shallnot apply to offioers of the NationalGuard of Texas, . . . et0.s

Artida 978f, Penal Code,Vernon's Annotated Criminal St&&8 of T-8, orea~s the Game, Nsh and Oyster Camission and 

### l boUshe8 the Gme, Nsh and Oyster Cwmxlssioner,Vesting the oanrmission with the authority, pUWer8, duties and functions theretoforevested in the Game, Nsh and oyster COInmis8ioner.w the smaeAct, the Executive Seoretary of the -88ion i8 given authority to appoint such game and fish wardens and other employeesa8 i0 hi* discretionmay be deemed neoessary to carry out and enforce the hw8 @'this Statewhich it is the &rty of the Canmissi~n to orrun-y out, ereouts and administeriand to perform all other duties and 6er+oes authoflsed and required to be performed pv said We, Nsh atrd Oyster canmi8sion,w~,,h *dd wardens and eapl~yees "shall have the authority,posers, duties and funotim8 heretoforevested in Speoial Deputy Game, Nsh and Oyster Cdssionerr, and other employeesof the Gaae, Fish and Oyster Casmissioner.s

Among the duties of the Commission is the superintendingand control of propagation of fish in the State fish h$oheries and the distrihltion of such fish. Article 4019, B.S. 1925. lty Artdole 4021, R.S. 1925, the Cmmissionerms authorized to appoint deputies aesmed necessary for the eafOrOslnelh of the law,which suoh deputiesnere to "have and exercise the same powers and duties as the Conmissioner."

we find no lawwherein theLegislature has attempted to presorib8 the duties to be performed by hatchery superintendentsor assistant lmtohery superintendents. aoh plaoes sem to be provided for only in the appropriation bill, and it appears to have been the intention Of the l@gislatIIre that the Game, Fish aud oyster Camis*icp1, aoting through the Executive Seoretary, sbouldhave the authority im determinewhat duties and Ssrvims should be required to bs performed by partiaular employessof the department.

Tnarticle 4.023,

R. S. 1925, it appears that itwas the intention of ths ugislsture that person8 in oharge of hatcheries should be vested with all of the powers of the Gsme,,and Fish Warden, who at that timsWa8 referred to 8s n&p* Ngh and Oyster &mi.ssioner," for this Article refer8 to "deputies -ployed at freshwater fish hatcheries.'

The Legislature itself has the power to prescribe the dutieswhioh shallbs performedby a public officeror employee, and the impositionof additionalduties does not constitute the oreationof a SeFQlgte office or position,where the new duties assigned "partake of the same general charaoteristios of other duties imposed k laws" and are not incompatible therswitho Jones v. Alexander (Tex. Comma App.) 60 SLW. (2d) 1080, opinion adoptedbythe Supreme Court.Mr. W. J. Tuaker, page 3 (O-1410)

Hnere the %gislature has created separate and distinct offices or positicns, and ha8 presoribedthe duties to be performed by persona holding each position, a departmentheadmay not permit one person to hold or emroise both offloes or positions, even though hemay receive no pay for the second offioe or position2 butwhere the legislaturehas left it to,the deparimlent head to prescribe the dutieswhioh shall be performed by personswhan he is authorited to employ, the dramposition of additional duties to be performed by a particular employee oonstitutes Ia& the exercise of the administrativedisaretion oonferred

### uponthe departmenthead, pnd does not constitutethe creationof a separate office or position,ahem, as in the situation dealtwith inthis opinion, the new duties assigned "partake of the ssme general oharaoteristiosof other duties imposedby law," and are not iaoompatihlewith the duties already discharged by such employee.

Trustingthat the fOregOing fully

### answers your inquiry satisfaotorily,we are Very trulyyours

ATTORIEY GERRi-GU

OF lXXA2 By /s/R. 5% Fairchild
R. W. Fairchild Assistant

AFTROVgD ROY. 22, 1939 /~/Gerald. C. Mann 'All'ORREY

GENEFtAL

OF TEXA3 Opinion Committee ByBWB Chairman