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 depprtrnentupon 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 at-
taehed>to the duties to bs psrof5nredby a game and fish warden in this par-
ticular 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 prform-
ed as hatchery superintend aud, therefore, we are of the ~opinicm that the
oamon law rule applied in this State, prohibiting the holding of inoanpati-
ble 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 oomida-
 slon a hatchery superXntende!rtor assistant hatchery supsrintemdent as gme
& fish-warden; suoh hatohery superintendent or assistant hatcherg superiaten-
 dmit to receive no ocenpensationfor 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 depart-
ment appropriation bill.

          The broader question, homwr,  involved in your Inquiry is whether,
under such cirwmstsnoes, the person thus appointed may reoeive any compsnea-
tion 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,ttjhattNs
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 oanrmissionwith 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-yout, ereouts
and administeri and to perform all other duties and 6er+oes authoflsed and
required to be performed pv said We,   Nsh atrdOyster 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. ltyArtdole 4021, R.S. 1925, the Cmmis-
sioner 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 appropria-
tion bill, and it appears to have been the intention Of the l@gislatIIrethat
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,,andFish 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 charao-
teristios of other duties imposed k laws" and are not incompatible thers-
witho 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 deparimlenthead 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 answersyour inquiry satisfao-
torily,we    are

                                            Very truly yours


                                         ATTORIEY GERRi-GUOF lXXA2

                                         By /s/R.   5% Fairchild

                                                R. W. Fairchild
                                                      Assistant



 AFTROVgD ROY. 22, 1939
 /~/Gerald. C. Mann                              Opinion Committee
'All'ORREYGENEFtALOF TEXA3                           ByBWB
                                                     Chairman
