EA ORNEY GENERAL 

OF EXAS 

Honorable Bogd Newman 

County Attorney, 

Gragson County, 

Sherman, Texas. 

Dear Mr. Newman: 

April 23, 1957. 

Opinion NO. WW 109 

Re: Can the County Auditor 

of Grayson County 

legally approve a warrant 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 

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 qualified Mayor of the City of Sherman and receiving 

a salary therefor? 

2, 'Can the Warrant for salary as County PhyslcIan be legally approved if the person acting 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 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 Physlcian 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 connection 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, speclflea 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, 

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.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 compensation to a person who holds two offices of emolument. However, 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. Therefore, 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 guarantine regulations within his jurisdiction. 

Article 994, Vernon's Civil Statutes, provides: 
. 

ffonorable Boyd 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 negligence, 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 contlngency on which the power may be exercised 1s 

remote, and It also exists where the incumbent of one office has the power of appointment 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 regulations. 
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;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 cooperation between the commissioners' court 

of the county and the munlcipallty situated therein, in 

the Issuance by the dual authority of joint sanitary regulations for the improvement of public health and promotion 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 regulations. 

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 quarantine 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 sanltary 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 'of Health, 

to prescribe and promulgate such administrative rules and regulations not inconsistent with any law of the State, as may 

be deemed necessary for the effective performance 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 ~the duties Imposed 

upon him by Article 4427,Vernon's Civil Statutes, throughout the county, and within any municipality located therein, 

bye virtue 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 

prescribed in Art. i 

urisdiction to perform his duties as 

42Tp 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 discharge 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 

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 

qualified Mayor of the City of 

Sherman, Texas, whether or not 

the person holding 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