P 

Honorable Isaac M. Castro 

Stonewall County Attorney 

P. O.Box 396 

Aspermont, Texas 79502 

Opinion NO. J?i-828 

Re: Whether common-law incompatibility prohibits a 

particular individual from 

serving on the board of 

directors of a hospital 

district (RQ-1116) 

Dear Mr. Castro: 

You seek an Attorney General Opinion answering the 

following question: 

May a person serve as a member of the 

board of directors of a public hospital 

district and be simultaneously employed by a 

physician who receives part of his income 

from the hospital district? 

Your question concerns the Board of Directors for the 

Stonewall Memorial Hospital District which oversees the 

operation of the hospital and a clinic. YOU state that a 

newly elected board member is employed in the clinic as 

a bookkeeper and receptionist by the sole physician 

practicing in the district's facilities. She has been 

employed in that capacity for approximately ten years by 

the various physicians who have contracted with the 

district to practice medicine in the clinic and hospital. 

The contract between the district and the physician 

guarantees him a net income of $8,000 per month. The 

board member's salary as bookkeeper is 

physician but is considered an expense 

paid by the 

for purposes of 

determining his actual net income. If his actual net 

income is less than $8,000 the hospital 

him the balance. 

district must pay 

Each month, the board of directors votes 

to approve his expenses, including the board member's 

salary as receptionist and bookkeeper. YOU suggest that 

the common-law doctrine of incompatibility prevents this 

individual from serving in both positions. 

p. 3962 
Honorable Isaac M.Castro - Page 2 (34-828) 

The common-law doctrine of incompatibility prevents 

one person from holding two offices if the duties are 

inconsistent or in conflict, or if one office is subordinate to the other. Thomas v. Abernathv Countv Line 

Indevendent School District, 290 S.W. 152 (Tex. Comm'n 

APP. 1927, judgm't adopted). In Thomas v. Abernathy 

Countv Line Indenendent School District, the court held 

that a city alderman could not also serve as trustee of a 

school district, where the incorporated town was within 

the boundaries of the school district. The court found 

the two offices to be incompatible because both the board 

of aldermen and the board of trustees had directory and 

supervisory powers over school property located within the 

city limits. There might arise a conflict between the two 

officers about the appropriate health, sanitation, and 

fire prevention standards to apply to school property. 

But see State v. Martin, 51 S.W.2d 815 (Tex. Civ. APP. - 

San Antonio 1932, no writ) (school trustee may serve as 

city tax collector because the duties of office are 

unrelated and neither officer is accountable to the 

other). 

The incompatibility rule also bars a public employee 

from holding a public office which appoints, supervises 

and controls his employment. See Ehlinaer v. Clark, 8 

S.W.2d 666 (Tex. 1928); Attorney General Opinion JM-203 

(1984): Attorney General Letter Advisory No. 114 (1975). 

Whether two offices are incompatible may be determined by 

comparing their powers and duties, in some cases in the 

context of the geographical jurisdiction of each. 

Incompatibility between an office and an employment 

depends primarily on the employee's subordination or 

accountability to the officer. 

The Stonewall County District was established pursuant to an uncodified special law adopted in 1963. H.B. 

No. 295, Acts 1963, 58th Leg., ch. 54, at 89; M V.T.C.S. 

a*. 4494q (list of hospital districts created by special 

act). The 1963 law was adopted pursuant to the legislature's constitutional authority to create hospital 

districts composed of one or more counties. Comnare Tex. 

Const. art. IX, 59 (authorizing legislature to create 

county hospital districts) with Tex. Const. art. III, 556 

(limitation on enactment of local and special laws except 

as otherwise provided in constitution). House Bill No. 

295 provides that the management and control of the 

hospital district is vested in the board of directors and 

p. 3963 
Honorable Isaac M.Castro - Page 3 (JM-828) 

P 

-. 

grants the board other powers of office. See U.S. No. 295, 

§53-7, suvra. The board 

shall have the power to prescribe the method 

and manner of making purchases and expenditures by and for such Hospital District, and 

also shall prescribe all accounting and 

control procedures; the method of purchasing 

necessary supplies, materials and equipment; 

and shall have the power to adopt a seal 

for such District: and mav emdov a aeneral 

manaaer. attorney. bookkeener. architect, 

and anv other emdovees deemed necessary for 

the efficient overation of the HOSDital 

District. (Emphasis added.) 

Acts 1963, 58th Leg., ch. 54, !i7, at 92-93. Thus, the 

authority to hire employees of the hospital district is 

vested in the board of directors, even though the board 

has apparently allowed the physician with whom it 

contracts to employ the bookkeeper-receptionist, or has at 

least considered her to be his employee. The board holds 

ultimate authority over the employment of the 

bookkeeper-receptionist and exercises supervision and 

control by approving her salary as part of the physician's 

expenses. 

In our opinion, the office of director of the Stonewall Memorial Hospital District is incompatible with the 

employment as bookkeeper-receptionist in the district's 

clinic. The board has ultimate authority over the board 

member’s employment in the clinic. The boardts contract 

with the physician will eventually be subject to renewal 

and may become a subject of controversy between the 

physician and the board. The board may have to make 

decisions which would affect the operation of the clinic 

where the board member works. The employee is presently 

accountable to the board on which she serves for her 

salary. Thus, the board's power to manage the district's 

facilities and to employ its personnel creates a considerable area of conflict between the office of director 

and the employment as bookkeeper and receptionist in the 

clinic. The relationship of supervisor and subordinate 

which exists between the board of directors of the 

hospital district and the bookkeeper-receptionist of the 

clinic renders the two positions incompatible. Upon 

election to the board, the individual should have 

relinquished the incompatible employment. &g Letter 

Advisory No. 114 (1975). 

p. 3964 
Honorable Isaac M.Castro - Page 4 (JM-828) 

SUMMARY 

The common-law doctrine of incompatibility bars one person from serving as a 

member of the board of directors of the 

Stonewall Memorial Hospital District and 

at the same time being employed in the 

district's clinic by the doctor under 

contract with the district. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKIXY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 3965