Case Information
*1 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 clla- office, 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 *2 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 seo- tiona .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 in- consistent with the Constitution and law6 of the State, and the member6 of the ConmIssion reoeive as oomponaation 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 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 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 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, pro- hibits 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 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. 'Walker v. Mobley 101 Tex. 28, 103 S. 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 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 eaoeptffioe and exeroising of the position of Chairman of the County Xreoutive kmmittee *4 Honorable Lee OVanlel, Page
of a politloal arty by a person holding a public offlae ' pso raato to vadate that orriee; but this, should operate P apparently, the Legislature has not seen fit to do. Ar- tlale.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 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 P orr ce under the State. Savage v. B hreys, (010. App.) 318 S.W. 9018 Oayle v. Alexander, (C v. App.) 76 S.W, (2d) 708. ""f:
You are therefore advised that Mr. Buckner, by aa- cepting 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