w. W. J. Tucker 

Executive Secretary 

Game, Fish & Oyster Cmmission 

.Austin, Texas 

Dear Sir: opinion No. 0-1410~ 

'Ee,,Whether a superintendent or an 

assistant superintendent of a State 

fish hatohery may be emmissioned 

as a game aud fishrardenwithout 

additional pay for the servioes to 

be performed. 

Your letter of September 9, 1939 is reoeived, whereia you ask the 

opinion of this depprtrnent upon the question indioated in the oaptiouabove. 

Article 16, Section 40 of the Texas Constitutim is not iuvolved, 

for thereasonthat uuder your statement of facts no emolument is to be 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 fish uaudeo and the duties to be prformed as hatchery superintend aud, therefore, we are of the ~opinicm that 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 department that 

'the Exeautive Secretary of the Game, Rlsh and Gyster Conmission may oomidaslon a hatchery superXntende!rt or assistant hatchery supsrintemdent as gme 

& fish-warden; suoh hatohery superintendent or assistant hatcherg superiatendmit to receive no ocenpensation for such setioes as are performed as gmm 

and fishwarden, but only to rsoelw suah caapsnsation as is prescribed for. 

a,hatohery superintendent 01 assist@& hatchery superintendent in the department appropriation bill. 

The broader question, homwr, involved in your Inquiry is whether, 

under such cirwmstsnoes, the person thus appointed may reoeive any compsneation whatsoever for his semiaes, under Artiole 16, Section 33 of our State 

Canstitution,whioh reads as follows: 

'The account&g officers of this State shall aeither draw nor pay a rarrant 

upan the Treasury in favor of any p&son, for salary or oompeusation a8 
--.. __ 

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 

shall not apply to offioers of the National Guard 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 theretofore vested in the Game, Nsh and oyster 

COInmis8ioner. w the smae Act, the Executive Seoretary of the -88ion i8 

given authority to appoint such game and fish wardens and other employees a8 

i0 hi* discretion may be deemed neoessary to carry out and enforce the hw8 

@'this State which it is the &rty of the Canmissi~n to orrun-y out, ereouts 

and administeri and 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 

heretofore vested in Speoial Deputy Game, Nsh and Oyster Cdssionerr, and 

other employees of the Gaae, Fish and Oyster Casmissioner.s 

Among the duties of the Commission is the superintending and 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 Cmmissioner ms authorized to appoint deputies aesmed necessary for the eafOrOslnelh 

of the law,which suoh deputies nere 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 superintendents or 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, 

sbould have the authority im determine what duties and Ssrvims should be 

required to bs performed by partiaular employess of the department. 

Tn article 4.023, R. S. 1925, it appears that it was 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 tims Wa8 referred 

to 8s n&p* Ngh and Oyster &mi.ssioner," for this Article refer8 to 

"deputies -ployed at fresh water fish hatcheries.' 

The Legislature itself has the power to prescribe the duties whioh 

shall bs performed by a public officer or employee, and the imposition of 

additional duties does not constitute the oreation of 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 

adopted bythe Supreme Court. 
Mr. W. J. Tuaker, page 3 (O-1410) 

Hnere the %gislature has created separate and distinct offices 

or positicns, and ha8 presoribed the duties to be performed by persona 

holding each position, a department head may not permit one person to hold 

or emroise both offloes or positions, even though he may receive no pay 

for the second offioe or position2 but where the legislature has left it 

to,the deparimlent head to prescribe the duties whioh shall be performed by 

persons whan he is authorited to employ, the dramposition of additional 

duties to be performed by a particular employee oonstitutes Ia& the exercise 

of the administrative disaretion oonferred upon the department head, pnd does 

not constitute the creation of a separate office or position, ahem, as in 

the situation dealt with inthis opinion, the new duties assigned "partake 

of the ssme general oharaoteristios of other duties imposed by law," and are 

not iaoompatihle with the duties already discharged by such employee. 

Trusting that the fOregOing fully answers your inquiry satisfaotorily,we are 

Very truly yours 

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