     Hon. Henry Taylor, Jr.         Qplnlon.No. v-883
     County Attorney                           -4
     Bell County                    Re: The legailty of one
     Belton, Texas                      person being both a
                                        trustee of an lnde-
                                        pendent school dls-
                        -               trlct and a city
                                        health officer at the
     Dear Sir:      :                   same time.

               You have requested an oplnlon relative td the
     legality of one person being' the trustee of an lndepen-
     dent school district andat  the same *In18 a city health
     officer of.an Incorporated city located within the-boun-
     daries of the independent school district.

                 Then Texas.constltu&onal   prohlbltlon'a'ainst
     ha-ldlng more than one offlce of em+m-mt        (Sec. &, .Art.
..   XVI) is inapplicable to the question under-consldera-
      tlon since a 'trustee of an lndepetident school district
      iierves wlthout~ compensation. -A.G. Opinions Bos. v-63
      and V-242. L$kenlse, Sectl&'33'of       Article XVI'bf the
     Constitution of Texas la not vrolated under the.facts
      submitted since neither the 'city health officer nor the
     trustee of an lndependent~school dlstrlct.are paPd out
     of the State Treasury.      A.G. Opinions NOS. v-63 snd
     V-242.                                           .
     ..
                 It 1s a fundamental rule of law, however,
     that one person may not hold at the s-e time two of-
     fices, the duties .of whlchare     imiompatlble. 'Thotias
     v. Abernathy county Line Ind. Sch. Dlst.., 290.'m2,
      (Tex. Comm. ADD. 1927); The nrlnclole of IncomDatl-
     dility of of&h       is'&ar~y    &presaed. In the case of
     Knuckles v. Board of Education of Bell Count&        (KY.),
     ‘h4 S.W.2d 511; at page 514 t.1938) :
               "One of the most important tests as to
          whether offlces are incompatible ls.found in
          the principle that the ~ncompatlblllty is
          recognized whenever one is subordinate to the
          other Sn.some of Its important and prlnclple
          duties, or la subjeot to supervision by the
“/aI                                              i

       Hon. Henry Taylor, Jr., page 2   (v-883)


            Other, or where a contrariety and antagonism
           would result In the attempt by one person
            to discharge the dUtl83 of both. Under this
           principle two offices are Inoomp$lb&e. where
            the incumbent of one has the power to remove
            the Incumbent of the other, though the con-
            tingency on which the power may be exercised
            is remote, and It also exls'ts Wh8r8 the inCUD
           bent of one office has the power of appolnt-
           ment as to the other office, . . . or to au-
           'dlt the accounts of another, or t0 8XerciSe
            a su~erv'ision over
                              . another." ,'
                  The question before the Supreme Court In the
       Thomas case, supra, was whether the.offlces of school
       trustee of an independent school district and city al-
       derman were incompatible.   The Court In holding that
       the two offices were Incompatible qtated the following:

                 "In our opinion the offices of school
           trustee and alderman are incompatible; for
           tUJd8r OUT system there ~@r8 in the city COUII-
            cl1 or board of aldermen various directory
            op supervisory powers exertable in respect
           to school property located within the city
            or town and in respect to the duties of
            school trustee   perfonnab18 wlthin'lts ll-
           mits-;e.g., there mlnht we11 arise a con-
           flict of discretion or duty in re9Pect to
           health, quarantine. 'sanitary, and fire pre-
           vention reauletlons.     See articles 1015,
           '1067; 1071, R.S.,1925.     If the same person
           could be a school trustee snd a member of
           the city counc11 or board of aldermen at the
            Sam8tim8,    school policies, in many Important
           risspects, would be subject to direction of
           the council or aldermen instead of tb that of
           the trus$>es."

                Article ,@+30, V.C.S. prOvid88,:

                 "Each city health officer shall perform
            such duties as may be required of him by gen-
            eral law and city ordinances with regard to
            the general health and sanitation of towns
            and cities, and perform such other duties as
            shall be legally required of him by the mayor,
            goyernlng body or the ordinances of his city
            or town. He shall discharge and perfo~rm much
Hon. Henry Taylor, ,br., page 3   (V-883)



     dutlesas may be prescribed for him under
     the directions, rules, regulations and r8-
     qulrements of the State Board of Health
     and the president thereof. He shall be
     required to aid and assist the Stat8 Board
     of Health in all matters of @arantine,
     vital and mortuary statistics, inspection,
     disease prevention and suppressiop and ssn-
     ltatlon within his jurisdiction.- He shall
     at all times report to the Stat8 BoXrd of
     Health, lnsuch manner and form es said
     board may pr8SCrlb8, the presence of all
     contagious,, infectious and d&ngeroug epl-
     demic diseases within his jurisdiction, snd
     shall make su‘ch other and further reports in
     such manner and form and at such times as
     said Stat8 board shall direct, touching all
     such matters aa may be proper for.sald board
     to dlr8c.t; and he shall aid sflld.State board.
     at all times ln.the enforcement of proper
     rules , .regulatldns and requirements in the
     enforcement of all sanitary laws, quarantine
     regulations and vital statistics ~collectlon,
i    and perform such other duties as said State
     board shall direct."

           It Is well se&led lnthls State that schobl
authorities have the power to enforce regulations rela-
tlire to the maintenance of health In proper conduct of
the pub~llc schools and to make such rules  and regula-
tions neoessary to prevent the spread of contagious dls-
,e;;:si9;;:t? of Dallasv. M6selp, 17z.:,d.    L(C;;;
              Bcoth Y. Board of Education, 70 S.WEI.2d--,350
(Tex. Clv.'Appi '1934 error dlsm.);                .    ,
Schools, S8C. 181, 162.,'i'ieCJUOt8 the folliwlng from
37 Tex. hr.. pp. 106%~107i:
           "The maintenance. of,health being of
     prime lmportande, ln'the proper conduct of
     the public ichools, it.18 settled that the
     school authorities can maintain a health de-
     psrtment where such department is related to
     and ruz.as.a part of the school system and
     tends to further the efficiency of~that eys-
     tern.     ',
          1)
               .   .   .


          'Where eAclu81+8 control   of   th8   public
    Hon. Henry Taylor, Jr., page 4   (v-883)


         schools of a city or district is given to its
         board of education or trustees, with power to
         establish all rules and regulations necessary
         to maintain an efflclsnt system, 32~~regula-
         tion Intended and reasonably calculated to pre-
         vent the introduction or spZ?8ad of a contagious
         and dangerous. disease, such as small pox,~ls
        well within the powers granted.    School boards,
         ln the proper edmlnlstratlon of. the sffairs~0r
         schools, may therefore require the vaccination
        Of pupils as a condition pr6c8dent to their
        attendance.   And under thelr.power to enact
        ordinances for the protection of health, leg-
         lslatlve bodies of munlcipalltles may deny
        .chlldren the right to attend school -less vac-
        cinated. Ordinances and regulations of this
        nature are not in contravention of constltu-
        tional guaranties, nor do they interfere with
        th8 operation of the compulsory school law,
        Nor'are the regulations objectionable on the
        ground that no emergency exists; it la not a
        question of emergency, but a qu6stlon whether
        the board's action 1s arbitrary.
              " . . ..

.             n        If'lt is alleged  that the condl-
         tlon of*tie*health and body of a particular
         child makes vaccination subjectively danger-
         0-0 such fact should in general be establish-~
         ed by experts, and it should appear that the
         condition has been made known t&the school
         au,thorltl6s and that an effort'has .been made
         to exempt such child from vaccination.    More-
         over,,health regulations of this sort, being
         within the jurlsdlctlon of trustees, can be
         reviewed only in the manner provided by law;
         that is, presort to designated school authorl-
         ties must be had before 'q appeal to the
         courts.n

              In-view 'or,the foregolzig; it is our opinion
    that the Board of Trustees of in independent school dls-
    trlct have 3ubstantlally the s-8 duties as that of the
    City Health Offlcer'in respect to the maintenance of
    health in the public schools and making regulations to
    prevent the spread of contagious diseases in the schools
    under its supervision.  In view of the holding in the
    case of Thomas v. Abernathy County Line Independent
                                         .    .
Hon. Henry Taylor, 'Jr., page 5     (V-e83)



School District it la our opinion that the offices of
cltv health officer and trustee of an indeuendent school
dlairlct are incompatible since there could be a con-
flict of discretion or duty in offices with respect to
health, quarantine, and sanitary regulations involving
the school district.  You sre therefore advised that the
same person cannot be a school trustee of an independent
school district and a city health officer of sn lncor-
porated city where such city lies within &he boundaries
of the independent school district.

                     SUM?dARY

          A person cannot hold the office of city
     health officer and trustee of an independent
     school district at the same time, since the
     duties of said offfces are lncomuatible.
     Thomas v. Abernathy County Llne~ kndependent
     school District, 290 s.w. 152, (Tex. coipm.
     App. 1927); Nuckles v. Board of-Education of
     Bell County; 7Ky.I la S.W.Zd 511 (1938).
                     _
                                       Yours very truly,

                                  ATTORNEY GENERAL OF TEXAS




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                              w
                                  FIRST ASSISTANT
                                  ATTORXEY GENERAL
