EA ORNEY GENERAL
OF EXAS

Honorable Bogd Newman CountyAttorney, Gragson County, Sherman, Texas.

Dear Mr. Newman: April 23, 1957.

OpinionNO. WW 109

Re: Can the CountyAuditor of Grayson County legally approve a warrant payable to the County Health Officer for services acting In such capacitywhile at the same time acting
as duly elected and qualified Mayor of the City of Sherman, Texas, and receiving a salary therefor? And related questions.

By letter ofApril 8, 1957, you have requested the opinion of this office on the following questions:

1.~ "Can the CountyAuditor of Grayson County legally approve a warrant as County Physician for services acting In such capacitywhile at the same time acting as duly electedand qualified Mayor of the City of Sherman and receiving
a salary therefor?
2, 'Can theWarrant for salary as County PhyslcIan be legallyapproved if the personacting in such capacity as set out above rejects remuneration from the City of Sherman for services performed as Mayor of said city?
3. "If the governingbody of the City of Sherman changes the city ordinancesand 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 Physlcian slnee no salarywould thenwbe forthcomingas Mayor from the aforesaid city?

We wish to thankyou for the very able and helpful brief which you forwarded for our consideration In connectionwith 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 containsa definition of said officer, and the caption thereof indicates that there shall be no County Physician. Article 4423,Vernon's Clvll Statutes, speclflea themanner of appointment of the County Health Officer, and further provides for his takingan oath, and sets forth the method of compensationfor 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:

"Noperson shallhold or exercise, at the same time,more than one civil office of emolument, except that of justice of peace, county commissioner, master e e *' notary public and postAs 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.ArtlcleXVI, Section 40 of the Texas Constitution.Thus, the constitutionalprohibitionagainst theholding of more than one civil office of emolument applies to the offices here under consideration,and precludes one person from simultaneouslyholding the offices of Mayor and County Health Officer. Attorney General's OpinlonsNos. o-518, V-1370, and O-816. Any other opinions of this Department which may be contraryhereto are expressly overruled.

Your first question does not ask whether the same personmay 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 compensation to a personwho holds two offices of emolument. However, It 1s a well settled rule that, where a personholding
one office accepts another office,he automaticallyvacates the first office. Pruitt v. Glen Rose School Distrlst, 126 Tex. 45; 84S.W. 2d, 1004; 100A.L.R., 1158.Honorable Boyd Newman, Page 3 ww log

If the County Health Officer accepts the office of Mayor, he automaticallyvacateshis first office. Therefore,your first question is answered in the negative.

The fact that theMayor may reject paymentof 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 charterand/or city ordinancesare legally amended so as to provide that the Mayor would not receive any compensationwhatever, then he would not be holding two offices of emolument. However, this does not mean thathe can hold both offices if they are incompatible,

Apart from the constitutionalprovisionsrecited herein, it Is a fundamental rule of common law that one personmay 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~;~Thomasv, Abernathy County Line

Article 4427,Vernon's Civil Statutes, prercribes the duties of a County Health Officer as follows:

"Each county~healthofficer shall perform such duties as have been required of county physicians, with relation to caring for the prisoners in county jailsand In caring for the inmates of county poor-farms,hospitals, dischargingduties of county quarantine and other such duties as may be lawfullyrequired of the county physicianby the commissionerscourt 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 preventionand suppression,vital and mortuary statistics and general sanitationwithin his county;. D Dand he shall aid said State Board at all times in the enforcement of Its proper rules, regulations,requirements and ordinances, and in the enforcementof all sanitary laws and guarantine regulationswithin his jurisdiction.
Article 994,Vernon's Civil Statutes, provides:.

ffonorable

Boyd Newman, Page 4 ww log

"Themayor 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 subordinateofficers in the government thereof,and shall cause all negligence, carelessnessand other violations of duty to be prosecutedand punished. He shall have power, if Inhis judgment the good of the citymay require it, to summon meetings of the city council; and he shall communicate to that body such informationand recommend such measures as mav tend to the lmorovement~ of the finances, the police,health'se&ritx cleanliness, comfort, ornamentand good gov-' ernment of said city."

The generally accepted test of lncompatlbllltyof offices 1% clearly set forth In Knucklesv. Board of Education of Bell County, (Kg),114 S.W.2d. 5L1, 514,
as follows:

"One of themost important tests as to

whether offices are Incompatible Is found In the principle that the ln@ompatibilityis recognizedwhenever one Is subordinate to the other In some of Its importantand principal 

### duties 9 or Is subject to supervisionby the other, or where a contrarietyand antagonism would result in the attempt by one person to discharge the duties of both. Under this principle two offices are incompatiblewhere the incumbent of one has the power to remove the Incumbent of the other, though the contlngency on which the powermay be exercised 1s remote, and It also existswhere the incumbent of one officehas the power of appointment as to the other office

. . e 0 or to audit the accounts of another, or to exercisea supervision over another."

In attempting to ascertainwhether the two offices In question are Incompatible,we must first determine whether or not theremight arise a conflict of discretion
or duty In respect to health, quarantine or sanitary regulations.Honorable Boyd Newman, Page 5 ww 109

Article 4425,,Vernon'sCivil 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 OpinionNo. O-816 states:

"Thestatutes do not subordinate the

position of city health officer to that of countyhealth officer. They are parallel in Importance, legal status, and scope of work outlined for the respective positions. Both officesare subject to the State Board of Health, rather than to each ot;her or to the County Commissioners"Court.

Even though the duties of the respective offices do not overlap,Art. 1015,Vernon's Civil Statutes, provides for cooperationbetween the commissioners'court of the county and the munlcipallty situated therein, in the Issuanceby the dual authority of joint sanitary regulations for the improvementof publichealth and promotion of efficient sanitation. In addition to this statutory provision, there exist Instances In which the city health officerand countyhealth officer exercise concurrent jurisdictionwithin the boundaries of the municipalityunder the direction of the State Board of Health in respect to quarantine,health and sanitary regulations.
Article 4419,Vernon's Civil Statutes, provides In part:

"TheState Board of Health shallhave

general supervisionand control of all matters pertaining to thehealth of citizens of this state, as providedherein. , . a shall have direction and control of all matters of quarantine regulations and enforcement,and shallhave full power and authority to prevent the entrance of such diseases from pointswithout the State,~ and shall have directionand control over sanltary and quarantinemeasures for,dealingwith all diseaseswithin 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 partnHonorable Boyd Newman, Page 6 ww 109

"He shall have the power,with the approval of the State Board 'of Health, to prescribeand promulgate such administrativerules and regulationsnot inconsistent with any law of the State, as may be deemed necessary for the effective performance of the dutles imposedby 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 countyhealth officersand 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 thougha city health officer Is performing the duties Imposedupon him by statutewithin the City of Sherman, Texas, the County Health Officermay, nevertheless,perform~theduties Imposed upon him by Article 4427,Vernon'sCivil Statutes, throughout the county, and within any municipality located therein, bye virtue ofArticle 1015, Section 2, ofVernon's Civil Statutes, or by dlrectlon of the State Health Officer.

It Is, therefore, our opinion that the County Health Officerhas prescribed inArt. i urisdiction to performhis duties as 42TpVernon's Civil Statutes, over the total area of the county, includingany ntunlcipallties located therein. Consequently,we are of the further opinion that a conflict of duties OP discretionwith respect to health, quarantine, or sanitation regulations
or control,and, thus, a contrarietyand antagonism could result In the attempt by one person to simultaneouslydischarge the duties of Mayor, as Imposedby Art. 994,Vernon's Civil Statutes and those of County Health Officer, as set forth InArt. 4427,Vernon's Civil Statutes.

On the basis of the foregoing,we must also answer your questionNo, 3 in the negative.HonorableBoyd Newman, Page 7

SUMMARY ww 109

The County Auditor of Grayson County cannot legally approve a warrant for payment of County Health Officer for services actIn&as the duly elected and qualifiedMayor of the City of Sherman, Texas, whether or not the personholding such dual offlces receives a salary for either
or both of such offices.~

Yours very truly,

WIIL WIISON Attorney General of Texas

BHT:pf:rh

APPROVED: B. H. Tlmmlns, Jr. Assistant

OPINION COMMITTEE:

H. Grady ChaddIer

'Chairman ;&a~;'s;,c;

. John Ross Lennan

Geo. P. Blackburn