The opinion
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
JR:bh:mw
.
w
FIRST ASSISTANT
ATTORXEY GENERAL