Untitled Texas Attorney General Opinion

August '!li+, 1967 Honorable John C. White Opinion No. M-122 Commissioner of Agriculture Texas Department of Agriculture Re: Whether a public weigher Austin, Texas can conduct weighing operations in counties other than the county for which he was elected or appointed and can he appoint deputies who are residents of other counties to serve in the counties Dear Mr. White: of their residence. You&ave requested the opinion of this office upon the follow*ng questions: .- a .l. Can an'eledted or appointed weigher, who Is an.employee bf a particular firm, donduct weighing operations for his firm In adjacent counties other than the c~ountyfor which he was elected or appolnte,d? n2. Can a public welgher‘appolnted by the Governor for one county appoint; In a second county, a deputy who is a legal resident of the second county?" Article 5681, Vernon's Clv'llStatutes, provides in part that: "The Governor Is authorized and required to appoint five persons as public weighers In every city which receives annually one.hundGd thousand bales of cotton on sale or for ship- ment. In all cities and towns which receive as much as fifty thousand bales.of.,Scotton.. . .or any other commodity in large quantities, it shall be lawful for the Governor to appoint a sufficient - 554 - /,. - . - Hon. John Ci White, page 2 (M-122) number of public weighers for such city or town to carefully and accurately weigh all produce tende;ed for the purpose of weighing for shipment. (Emphasis added.) Article 5692, Vernon's Civil Statutes, provides In part that: "In all counties of this State In which there are two or more cities, towns or shipping points that receive as much as fifty thousand bales of cotton. . .or any other commodity in large quantities, It shall be lawful for the Governor to appoint a sufficient number of weighers for such county to carefully and accurately weigh 11 dities tendered for the purpose of weighing ?or CsgEient, sale or purchase. This Article shall not apply to Galveston County. All such appoint- ments shall be made by the Governor on the recom- mendation of the senator from whose senatorial district such appointment is made, together with a majority of the representatives in the Legislature from such senatorial district. Every public weigher s'oappointed shall file a bond payable td th State of Texas, In the sum of Five Thousand ($5,oS 0.00) Dollars, .condltlonedthat he will accurately weigh, or measure, all commodities tendered to him in said county for weighing or measuring . . .Such public weigher shall have the right to appoint a sufficient number of deputies to aid him In weighing or measuring any commodity that is tendered to him for welghlng. All bonds given by such public weighers or their deputies shall be subject to the approval of the Commissioner of Agriculture, and all.-bondsand oaths of such public weighers or thei; deputies shall be filed with said Commissioner. (Emphaslsadded.) Article 5683, Vernon's Civil Statutes, provides In :- part that: "In all counties In which there are no city or cities In which the Governor is authorized to appoint public weighers, there shall be elected at each general election a public weigher for each justice precinct in the manner and form govern;ng the election of other precinct officers. . . . (Emphasis added.) - 555 - .__ . Hon. John c. White, page 3 (M-122) Article 5684, Vernon's Civil Statutes, provides in part that: 'No person shall be appointed or elected public weigher unless he Is a qualified voter in the city or precinct for which he la appointed or elected. . . ." Article 5691, Vernon's Civil Statutes, provides In part that: "Each public weigher, appointed or elected, shall have the right, and it shall be his duty to appoint a sufficient number of deputies In each precinct, to weigh all produce tendered for the purpose of weighing, at any and all points within such precinct. He shall require of each of said deputies to file a bond In the penal sum of one thousand dollars, under the same terms and conditions as the bond which he filed with the commissioners court of the county In which he resides, before he shall be permitted to engage In the business of deputy public weigher; such bbnd so filed, shall be payable to the State Df Texas, and shall be subject to the approval of.'checommissioners court of the county in which he resides, and certified to the Commissioner of Markets and Warehouses, before such deputy public weigher shall be entitled to engage in the business of public weighing. Such public weigher shall have the right.to.appoint a sufficient number of deputies to serve'at will of the public weigher, to aid him In weighing or measuring a;y commodity that is tendered to him for weighing. (Emphasis added.) Article 5690, Vernon's Clv>l Statutes, provides that: "All public weighers or deputy publlc:welghers, appointed or elected shall obtain from the-Commissioner of Markets and Warehouses a certificate‘of~authorlty to carry on the business of public weigher-or deputy public weigher within the city, town; precinct, ore shipping point for which he was elected or appointed.' In view of the foregolng,;ye~.areof the opinion that an elected or appointed public weigher may not conduct weighing opera- tions, in his capacity as an elected or appointed public weigher, - 556 - , . .-. Hon. John C.‘White, page 4 (M-122) In areas other than that for which he was elected or appointed. However, the foregoing is not to be construed as a holding that an elected or appointed public weigher cannot conduct weighing operations In other areas than that for which he was elected or appointed if such person has complied with the provisions of Article 5704. See Paschal v. Inman, 106 Tex. 128, 157 S.W. 1158 (1913); Fllppen v. Murray, bb S W 2d 757 (Tex.Clv.App. 1933); Martin v. Foy, 234 S.W. 698 (Tex.Cl;.App. 1921). - In regard to your second question, we are of the opinion that Article 5691 contains no restriction which would require a deputy appointed by a public weigher to be a resident of the area which he was to serve as a deputy to the public weigher. However, the deputy may only conduct weighing operations In his capacity as a deputy to the public weigher in the area In which the public weigher is appointed or elected to serve. Senate Bill 364, Acts 60th Leg., 1967, Regular Session, ch. 508, p. 1144, which becomes effective on August 28, 1967, amends certain provisions of Article 5681, Article 5682 and Article 5692. However, such amendments deal primarily with providing for the Secretary of State rather than the Governor making the appoint- ment of publlc,,weighersafter August 28, 1967, and make no.changes which-would change the holding in this opinion. i SUMMARY An elected or appointed public weigher may not conduct weighing operations, in his capacity as an elected or appointed public weigher, in areas other thanthat for which he was elected or appointed. A deputy appointed by a publlc'welgher need .not be a resident of the area for which he Is to serve as a deputy to the public weigher. However, the deputy may only conductweigh,ing operations, In his capacity as a deputy to the public weigher, in the area in which the public weigher Is appointed or elected to serve. L. .._ . Hon. John C. White, page 5 (M-122) Prepared by Pat Bailey Assistant Attorney General PB:sck:mkh APPROVED: OPINION COMMITTEE A. J. Carubbi, Jr., Chairman Staff Legal Assistant W. 0. Shultz, Co-Chairman Doug Chilton Paul Martin Bob Flowers Linward Shivers I - 558 -