                                NE

                         cm      EXAS

                      AUSTIN.   TExae   789


                        March 24, 1967

Hon. J. R. Singleton                    Opinion No. M-47
Executive Director
Parks and Wildlife Department           Rez   Construction of
Austin, Texas                                 Article 6069, V.C.S.
Dear Mr. Singleton:
     You have re uested our construction of the following por-
                 069, Vernon's Civil Statutes, which sets forth
tlon of Article ;t
one of the duties of the Parks and Wildlife Depa~rtmentas follows:
          11
           . . .to arrange for or employ a kee er In each
     of the State Parks. . who shall be cl&with       all
     the powers and authoriiy of a peace officer of the
     county, for the purposes of caring for and protecting
     the property within said parks." (Emphasis Supplied.)
    Your questions may be stated as follows:
    (1) Who may be designated as a "keeper" as that term Is
    employed In Article 6069, V.C.S.?
    (2) Whether more than one "keeper" or an assistant to
    the "keeper" may be designated in the larger State Parks?;
    and,
    (3)  Whether the designation of a~Parks and Wildlife Depart-
    ment employee as "keeper"-and his continuation as Annem-
    ployee of the Parks and Wildlife Department under one
    of the categories for which funds have been provided
    by the appropriation act adopted by the 59th Legislature
    would violate Section 33, Article 16 of the Texas Con-
    stitution?
    In your request you have stated, in part, that:
         II
          . . .
         "For many years (from the late 1930's until September
    1, 1965) the respective appropriation acts provided annual
    salaries for the position of "Park Keepers" In certain
    specified State Parks. Effective September 1, 1965, the
                        - 217 -
Hon. J. R. Singleton, Page 2 (M- 47 )


     appropriation acts, based on the State Classification
     System, have made no provision for "Park Keepers" as
     such, but have set up certain classified positions as
     Park Superintendent III, Park Superintendent II, Park
     Superintendent I, Park Attendant III, Park Attendant II,
     Park Attendant I. . .'
     It has been assumed that the designation "Park Keeper" (as
provided for by prior appropriation bills) was Intended to refer
to the person with the duties designated in the above quoted
portion of Article 6069.
     Employing the canon of construction that the law does not
favor a repeal by lmpllcatlon, we do not feel that the 59th Legls-
lature intended to place In a~beyancethe duties which the a~bove
quoted portion of Article 6069 states shall be performed, but
rather, it 1s our Interpretation that the Legislature Intended
for the Parks and Wildlife Depa,rtmentto delegate such duties
to the employees otherwise provided for under the current Appro-
priation Bill. So long as the Legislature itself does not define
the authority a~ndduties of a position for which It provides an
employer-a~gencywith an appropriation, such employer-agency may
from time to time define and redefine the duties of such position
so as to carry out efficiently the duties of such employer-agency
- i.e.: the only purpose which may reasonably be ascribed to the
Legislature in providing funds for employees of a state agency
is so that the employees which may be thereby hired may assist
such agency In carrying out its sta~tutoryduties.
     It is our opinion that,,theDepartment being under a duty
to arrange for or employ a keeper in each of the State Parks
should designate either the highest clamled    employee In each
of such parks or some other employee to fulfill the duties set
out In the above quoted portion of Article 6069.
    We answer your first question as follows:
     Any of those employees whom the Parks and Wildlife Depart-
ment have been authorized to employ may be designated as a
"keeper" so long as their duties as "keeper" do not conflict
with statutory provisions, If any, defining the duties of such
classified position as they may hold.
    Your second question Is:
          "Whether more than one 'keeper' or an assistant
     to the 'keeper' may be designated In the larger State
     Parks?"
                        - 218 -
Hon. J. R. Singleton, page 3 (M-47   )


     This question Is answered by the clear language of the
statute which provides for "a keeper' in each park, but which
neither provides for 'keepers" In each park nor for "a keeper
and assistant keepers" In each park, As the language employed
Is clear and unambiguous your second question Is answered in
the nega.tlve.
     Your third question is:
          "Whether the designation of a Parks and Wildlife
     Department employee as 'keeper' - and his continuation
     as an emplovee of the Parks and Wildlife Department
     under one of the categories for which funds have been
     provided by the appropriation act a~doptedby the 59th
     Legislature-would violate Section 33, Article I6 of the
     Texas Constitution?"
     The employee who 1s designated to perform the duties oft
"keeper" Is not holding at the same time two offices or posl-
tions of honor, trust or profit. Only additional duties have
been added to the position he is holding. Therefore Section
33 of Article I6 of the Texas Constitution Is not violated.
We therefore answer your third question in the nega,tlve.
                          SUMMARY

     1.   Any of those agents whom the Parks and Wildlife
          Department have been authorized to employ may
          be designated as a "keeper" so long as their
          duties as "keeper" do not conflict with statu-
          tory provisions, if any, defining the duties
          of such position as they may hold.
     2.   The Parks and Wildlife Department may not deslg-
          nate more than one 'keeper" in each park nor may
          the Department designate "assistant keepers" wlth-
          out additional authority from the Legislature.

     3.   The employee who Is designated to perform the
          duties of "keeper" Is not holding at the same
          time two offices or positions of honor, trust
          or profit. Only additional duties have been
          added to the position he Is holding. Section
          33 of Article I6 of the Texas Constitution
          Is not violated by the adding of additional
          duties.




                       - 219 -
Hon. J. R. Singleton, page 4 (M-47   )


Prepared by Larry J. Craddock
Assistant Attorney General
LJC/mfw
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Lonny Zwlener
Sam Kelley
Tom Keever
Ronald Luna
STAFF LEGAL ASSISTANT:
A. J. Carubbl, Jr.




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