EA ORNEY GENERAL
OF EXAS
April 23, 1957.
Honorable Bogd Newman Opinion NO. WW 109
County Attorney,
Gragson County, Re: Can the County Auditor
Sherman, Texas. of Grayson County
legally approve a war-
rant payable to the
County Health Officer
for services acting In
such capacity while at
the same time acting
as duly elected and
qualified Mayor of the
City of Sherman, Texas,
and receiving a salary
therefor? And related
Dear Mr. Newman: questions.
By letter of April 8, 1957, you have requested the
opinion of this office on the following questions:
1.~ "Can the County Auditor of Grayson County
legally approve a warrant as County Physician
for services acting In such capacity while at
the same time acting as duly elected and quali-
fied Mayor of the City of Sherman and receiving
a salary therefor?
2, 'Can the Warrant for salary as County Physlc-
Ian be legally approved if the person acting in
such capacity as set out above rejects remunera-
tion from the City of Sherman for services per-
formed as Mayor of said city?
3. "If the governing body of the City of Sherman
changes the city ordinances and provldes that no
salary shall be paid to the Mayor and this action
is done before the said County Physician is sworn
In, can~he then be paid a salary as County Physlc-
ian slnee no salary would thenwbe forthcoming as
Mayor from the aforesaid city?
We wish to thank you for the very able and helpful
brief which you forwarded for our consideration In connect-
ion with your request.
. .
Honorable Boyd Newman, Page 2 ww 109
As pointed out In your brief, Article 4422,
Vernon's Civil Statutes, provides for a County Health
officer and contains a definition of said officer, and the
caption thereof indicates that there shall be no County
Physician. Article 4423, Vernon's Clvll Statutes, specl-
flea the manner of appointment of the County Health Officer,
and further provides for his taking an oath, and sets forth
the method of compensation for said officer.
We assume from your inquiry that the Commissioners'
Court of Grayson County has provided for compensation to be
paid to the County Health Officer and that the city charter
and/or ordinances of the City of Sherman provides for the
payment of nompensatlon to the Mayor.
Article XVI, Section 40 of the Texas Constitution
provides In part:
"No person shall hold or exercise, at
the same time, more than one civil office of
emolument, except that of justice of peace,
county commissioner, notary public and post-
master e e *'
As pointed out in your brief, a municipal office,
including that of Mayor, has.been construed to be a civil
office of emolument, so as to fall within the prohibition
of.Artlcle XVI, Section 40 of the Texas Constitution. Thus,
the constitutional prohibition against the holding of more
than one civil office of emolument applies to the offices
here under consideration, and precludes one person from
simultaneously holding the offices of Mayor and County
Health Officer. Attorney General's Opinlons Nos. o-518,
V-1370, and O-816. Any other opinions of this Department
which may be contrary hereto are expressly overruled.
Your first question does not ask whether the same
person may hold both offices, but only whether the County
Auditor may approve a warrant for the services of the
County Physician.
Article 16, Section 40 of the Constitution does
not provide for prohibiting the payment of any compensa-
tion to a person who holds two offices of emolument. How-
ever, It 1s a well settled rule that, where a person holding
one office accepts another office, he automatically vacates
the first office. Pruitt v. Glen Rose School Distrlst, 126
Tex. 45; 84 S.W. 2d, 1004; 100 A.L.R., 1158.
Honorable Boyd Newman, Page 3 ww log
If the County Health Officer accepts the office of
Mayor, he automatically vacates his first office. There-
fore, your first question is answered in the negative.
The fact that the Mayor may reject payment of his
salary does not keep the office from being one of emolument.
We,therefore, answer your second question In the negative.
If before the County Health Officer qualifies for
the office of Mayor, the charter and/or city ordinances are
legally amended so as to provide that the Mayor would not
receive any compensation whatever, then he would not be
holding two offices of emolument. However, this does not
mean that he can hold both offices if they are incompatible,
Apart from the constitutional provisions recited
herein, it Is a fundamental rule of common law that one
person may not, at the same time, hold two offices, the
duties of which are lncom atlble. State v. Brlnkerhoff, 66
Tex. 48; 17 S.W.109 (1886~;~Thomas v, Abernathy County Line
Article 4427, Vernon's Civil Statutes, prercribes
the duties of a County Health Officer as follows:
"Each county~health officer shall perform such
duties as have been required of county physicians,
with relation to caring for the prisoners in
county jails and In caring for the inmates of
county poor-farms, hospitals, discharging duties
of county quarantine and other such duties as may
be lawfully required of the county physician by
the commissioners court and other officers of the
county o 0 He shall also be required to aid
and assist ;he State Board of Health in all
matters of local quarantine inspection, disease
prevention and suppression, vital and mortuary
statistics and general sanitation within his
county;. D D and he shall aid said State Board at
all times in the enforcement of Its proper rules,
regulations, requirements and ordinances, and in
the enforcement of all sanitary laws and guaran-
tine regulations within his jurisdiction.
Article 994, Vernon's Civil Statutes, provides:
.
ffonorableBoyd Newman, Page 4 ww log
"The mayor shall be the chief executive
officer of said corporation, and shall be
active at all times in causing the laws and
ordinances of said city to be duly executed
and put In force. He shall Inspect the
conduct of all subordinate officers in the
government thereof, and shall cause all negli-
gence, carelessness and other violations of
duty to be prosecuted and punished. He
shall have power, if In his judgment the good
of the city may require it, to summon meetings
of the city council; and he shall communicate
to that body such information and recommend
such measures as mav tend to the lmorovement~
of the finances, the police, health'se&ritx
cleanliness, comfort, ornament and good gov-'
ernment of said city."
The generally accepted test of lncompatlblllty of
offices 1% clearly set forth In Knuckles v. Board of
Education of Bell County, (Kg), 114 S.W.2d. 5L1, 514,
as follows:
"One of the most important tests as to
whether offices are Incompatible Is found In
the principle that the ln@ompatibility is
recognized whenever one Is subordinate to the
other In some of Its important and principal
duties 9 or Is subject to supervision by the
other, or where a contrariety and antagonism
would result in the attempt by one person to
discharge the duties of both. Under this
principle two offices are incompatible where
the incumbent of one has the power to remove
the Incumbent of the other, though the contln-
gency on which the power may be exercised 1s
remote, and It also exists where the incum-
bent of one office has the power of appoint-
ment as to the other office . . e 0 or to audit
the accounts of another, or to exercise a
supervision over another."
In attempting to ascertain whether the two offices
In question are Incompatible, we must first determine
whether or not there might arise a conflict of discretion
or duty In respect to health, quarantine or sanitary regu-
lations.
Honorable Boyd Newman, Page 5 ww 109
Article 4425,,Vernon's Civil Statutes, provides
for the office of the City Health Officer; and Article
4430, Vernon's Civil Statutes, sets forth the duties of
City Health Officer. Attorney General's Opinion No.
O-816 states:
"The statutes do not subordinate the
position of city health officer to that of
county health officer. They are parallel
in Importance, legal status, and scope of
work outlined for the respective positions.
Both offices are subject to the State Board
of Health, rather than to each ot;heror to
the County Commissioners" Court.
Even though the duties of the respective offices
do not overlap, Art. 1015, Vernon's Civil Statutes, pro-
vides for cooperation between the commissioners' court
of the county and the munlcipallty situated therein, in
the Issuance by the dual authority of joint sanitary reg-
ulations for the improvement of public health and promo-
tion of efficient sanitation. In addition to this
statutory provision, there exist Instances In which the
city health officer and county health officer exercise
concurrent jurisdiction within the boundaries of the
municipality under the direction of the State Board of
Health in respect to quarantine, health and sanitary regu-
lations.
Article 4419, Vernon's Civil Statutes, provides In
part:
"The State Board of Health shall have
general supervision and control of all matters
pertaining to the health of citizens of this
state, as provided herein. , . a shall have
direction and control of all matters of quaran-
tine regulations and enforcement, and shall have
full power and authority to prevent the entrance
of such diseases from points without the State,~
and shall have direction and control over sanl-
tary and quarantine measures for,dealing with
all diseases within the State $nd to suppress
same and prevent their spread.
Article 4418d, Vernon's Civil Statutes, relates to
the duties of the State Health Officer and provides In partn
Honorable Boyd Newman, Page 6 ww 109
"He shall have the power, with the
approval of the State Board 'ofHealth,
to prescribe and promulgate such admin-
istrative rules and regulations not incon-
sistent with any law of the State, as may
be deemed necessary for the effective per-
formance of the dutles imposed by this or
any other+law upon the State Department of
Health and its several officers and
divisions."
Under the above cited statutes, the State Board of
Health Is given the power to exercise full direction and
epntrol of county health officers and may, therefore, order
the County Health Offleer to exercise the duties lmposed
upon him within the limits of any municipality located in
said county. It is our opinion that even though a city
health officer Is performing the duties Imposed upon him
by statute within the City of Sherman, Texas, the County
Health Officer may, nevertheless, perform ~theduties Imposed
upon him by Article 4427,Vernon's Civil Statutes, through-
out the county, and within any municipality located therein,
byevirtue of Article 1015, Section 2, of Vernon's Civil
Statutes, or by dlrectlon of the State Health Officer.
It Is, therefore, our opinion that the County
Health Officer has urisdiction to perform his duties as
prescribed in Art. i42Tp Vernon's Civil Statutes, over the
total area of the county, including any ntunlcipallties
located therein. Consequently, we are of the further
opinion that a conflict of duties OP discretion with
respect to health, quarantine, or sanitation regulations
or control, and, thus, a contrariety and antagonism could
result In the attempt by one person to simultaneously dis-
charge the duties of Mayor, as Imposed by Art. 994, Vernon's
Civil Statutes and those of County Health Officer, as set
forth In Art. 4427, Vernon's Civil Statutes.
On the basis of the foregoing, we must also answer
your question No, 3 in the negative.
Honorable Boyd Newman, Page 7 ww 109
SUMMARY
The County Auditor of Grayson
County cannot legally approve
a warrant for payment of County
Health Officer for services act-
In&as the duly elected and
qualified Mayor of the City of
Sherman, Texas, whether or not
the person holding such dual offl-
ces receives a salary for either
or both of such offices.~
Yours very truly,
WIIL WIISON
Attorney General of Texas
B. H. Tlmmlns, Jr.
BHT:pf:rh Assistant
APPROVED:
OPINION COMMITTEE:
H. Grady ChaddIer
'Chairman
;&a~;'s;,c;
.
John Ross Lennan
Geo. P. Blackburn