    Honorable Isaac M. Castro      Opinion NO. J?i-828
    Stonewall County Attorney
    P. O.Box 396                   Re: Whether common-law in-
    Aspermont, Texas   79502       compatibility  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
P          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 paid by the
    physician but is considered   an expense   for purposes   of
    determining his actual net income.      If his actual net
    income is less than $8,000 the hospital district must pay
    him the balance.  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.




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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 sub-
ordinate 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     pur-
suant 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 legis-
lature'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




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




     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 expendi-
            tures 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
P    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 Stone-
     wall 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 con-
     siderable 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).




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




                        SUMMARY

            The common-law  doctrine of  incompati-
       bility 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




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