              EA         ORNEY       GENERAL
                        OF    EXAS



                         April 23, 1957.

Honorable Bogd Newman             Opinion NO. WW 109
County Attorney,
Gragson County,                   Re: Can the County Auditor
Sherman, Texas.                       of Grayson County
                                      legally approve a war-
                                      rant 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
Dear Mr. Newman:                      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 quali-
         fied Mayor of the City of Sherman and receiving
         a salary therefor?
         2, 'Can the Warrant for salary as County Physlc-
         Ian be legally approved if the person acting in
         such capacity as set out above rejects remunera-
         tion from the City of Sherman for services per-
         formed 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 Physlc-
         ian 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 connect-
ion 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, specl-
flea 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, notary public and post-
         master e e *'
         As 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 compensa-
tion to a person who holds two offices of emolument.   How-
ever, 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. There-
fore, 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 guaran-
         tine regulations within his jurisdiction.
         Article 994, Vernon's Civil Statutes, provides:
                                                                .




ffonorableBoyd 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 negli-
         gence, 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 contln-
        gency on which the power may be exercised 1s
        remote, and It also exists where the incum-
        bent of one office has the power of appoint-
        ment 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 regu-
lations.
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;heror to
         the County Commissioners" Court.
         Even though the duties of the respective offices
do not overlap, Art. 1015, Vernon's Civil Statutes, pro-
vides for cooperation between the commissioners' court
of the county and the munlcipallty situated therein, in
the Issuance by the dual authority of joint sanitary reg-
ulations for the improvement of public health and promo-
tion 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 regu-
lations.
         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 quaran-
         tine 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 sanl-
         tary 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 'ofHealth,
         to prescribe and promulgate such admin-
         istrative rules and regulations not incon-
         sistent with any law of the State, as may
         be deemed necessary for the effective per-
         formance 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 ~theduties Imposed
upon him by Article 4427,Vernon's Civil Statutes, through-
out the county, and within any municipality located therein,
byevirtue 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 urisdiction to perform his duties as
prescribed in Art. i42Tp 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 dis-
charge 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         ww 109


                         SUMMARY

               The County Auditor of Grayson
               County cannot legally approve
               a warrant for payment of County
               Health Officer for services act-
               In&as the duly elected and
               qualified Mayor of the City of
               Sherman, Texas, whether or not
               the person holding such dual offl-
               ces receives a salary for either
               or both of such offices.~
                            Yours very truly,
                            WIIL WIISON
                            Attorney General of Texas



                                B. H. Tlmmlns, Jr.
BHT:pf:rh                       Assistant
APPROVED:
OPINION COMMITTEE:
H. Grady ChaddIer
        'Chairman
;&a~;'s;,c;
         .
John Ross Lennan


Geo. P. Blackburn
