Untitled Texas Attorney General Opinion ( 1940 )

810
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUfflN
Honorable #. Lee O'Danlel
Dear Sirr
a nntter of ,lai haat
& Oyeter 0eluud.EdoDl
@loptedto qualitJTau
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 clla-
office, axoept a notary
it8a 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::suihgto
any such psrreonrree transportationon the
street oars, or franks entitling him to the
rree use of publia service oorporations,or
any pereon who ie regularlyeiuployedin 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 ColiilllE~::8,2:2~~~~~:;
of six members appointedby the Governor from different seo-
tiona .ofthe State, by and with the advioe and oonnent of
the Senate. This arti0l.eprovides for the appointmentof
auoh members for terms of six years, the terms of the various
members being eta&ered. Xaoh memberof 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 in-
consistentwith the Constitutionand 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 exeeu-
tive offioer tmder the direction of the Commissiou,and it
is provided that the Gommiasionmay perform its duties
through said exeoutive eeoretary and nay delegate to him
such executive duties es the Gotmaiasionshall deem proper.
The Comuieeion has also the authority to appoint an aeeis-
tant 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 pro-
vieion is made only for reinburaeiuentof aOtua1 expenses
Hoaoreble 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 office whioh they hold under the
State is one of trust6
Artiole 16, Seotion 40, of our %onstitutlon,pro-
hibits the holdin% of two civil officzs of~emolument. This
aonstltutlonalprovision,however, has applioetiononly to
'publie" offioea. The office of Game, Fish dcOyster Com-
miesioner 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. 'Walkerv. 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 oonstltutionelprovision has no applicationto the
situation presented in your letter.
LPkewlse, the oomon law rule tith refersnoe to
the vacating of one offioe by the aooeptancsof another
offioe inoompatiblatherewith does not apply to the instant
situation.
"Offioezifiaminoompatiblewhere their duties
are or may be inooneistentor oonfllet, but not
where their duties me wholly u&related, are in
no manner inaonelstontand are never in eonfliotg
and where neither officer is acoouutableto or
under the doxlnion of, or subordinateto, 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 Commissiohorand the
holding of the position of Cheiman of a County Demooratio
Executive Committee, and no such incorn_patlbilityis pointed
cut in the material whiah accompaniesyour letter. The sole
question, therefore, remaining to be disposed of in couneo-
tioh 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 eaoeptffioeand exeroising
of the position of Chairman of the County Xreoutive kmmittee
Honorable W. Lee OVanlel, Page 4
of a politloal arty by a person holding a public offlae '
should operate Ppso raato to vadate that orriee; but this,
apparently, the Legislaturehas not seen fit to do. Ar-
tlale.2940merely 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 aapaal-
tlssmentiOm3d; lh violation or ths provislons or Artlale
2940, does not, a6 that article Is inter reted by the oourts
or this State, vaoate Ipso faot0 his orrPce under the State.
Savage v. B hreys, (010. App.) 318 S.W. 9018 Oayle v.
(C v. App.) 76 S.W, (2d) 708.
Alexander, ""f:
You are thereforeadvised that Mr. Buckner, by aa-
cepting and attempting to exerelre, In violation of Artlole
2940, the orrlae or Caunty Chairmanor tka county D5ooratio
Exeoutlye Car;mltteeof Dellas Oountg, did not vacate hia
stat,&orflot as raamberof the We, Fish 6;Oystar Gonunls~
slon.
Yours very truly
ATIoEtNEYGENERAL OB TEXAB
BY
RwFlGo A
mtstsu--l
ATTORNEYGENERAL OF TEXAS