                                               GENERAL


Gerald   C.   yhnn            Auu-     aa. m




    Honorable Sidney Latham
    Secretary of state
    Austin, Texas

    Dear Sir:                             Opinion k. O-5163
                                          Bar  Rhether or not a publio rsigh-
                                               er appointed under Article 5692,
                                               v8riIOJI'cl
                                                        Annotated Civil SidXte8,
                                               should-be aonfinned by the Senate
                                               befOr the i88UPnOe Of NU,,mi88iOn
                                               by the Secretary of State.

             Your letter of March 20, 1943, requesting the opinion of this
    department On the above 8tated matter read8 in part a8 fOllOw8:

              'You are respeotfully requested to advise this
          Department upon the following inquiry*
                          il
              "*~Should a F%blia Weigher appointed under Art-
          iole.5692, R.C.8: 1925, be oonfinned by the &rate
          of Texas tier appointment ky the Governor and be-
          fore the issuanoe of a oommission to suoh offioer
          by the Secretary of Stats?'
                ". . . . *
                    ~.
               kcle     6692, Vernon's Annotated Civil Statutes, provides:

              "In all counties of this Stats in which there are
          two or more cities, tow38 or shipping points that re-
          aeive as much as fifty thousand bales of cotton, or
          twenty-five tona of cotton seed, or one hun+wd thoua-
          and ixshels of'graip,at~    hundred thousand k8helS of
          rioe, or one hundred thousand pounds of mo$, or five
          thousand ?zarrelsof sugar, or any other ocmuwdity in
          large quantities, it 8hall.M lawful for the Governor
          to appoint a sufficient number of weighers for suoh
          oounty to oarefully and aocurataly aeigh all oanmodi-
          ties tendered for the purpose of weighing for 8hipne&,
          sale or purohaaa. This article shall not apply to
          Galveston and &eoes oounties. All 8UCh appointments
          shall bs made by the Governor on the reaommendation of
          the Senator from whose senatorial distriot such appoint-
          ment is *de, together with a majority of the represen-
          tatives in the Legislature from such senatorial distriot.
Honorable Sidney Latham, Page 2   (O-5153)




         No man Shall be appointed unless he shall reoeive
         the endor8emOnt of the Senator and a majority of
         the representative8 from such district. Every pub-
         lic weigher 80 appointed shall file a bond payable
         to the State of Texas, in the 8um of fivo thousPnd~
         dollars, conditioned that he will aaourately 'ybigh,
         or mea8ure, all ocmnnoditiastendered to m   in said
         county for weighing or measuring, and that all oer-
         tifiOPtO8 of lmight issued by him shall repreSent a
         true a ndlocurate weight of such produce so weighed,
         and otherwise oomplying with the law governing the
         oonditions of bonds required of public weighers.
         Such bond 80 given shall not bp void upon first re-
         oovery but may b8 sued on 8uooessively by c, apd
         all persons~#rhoare injured w such publio zigher.
         Such public weigher shall have the right to appoint
         a 8uffioiemt number of depUtie8 to aid him in weigh-
         ing or measuring any owxodity that is tendered to
         him for weighing. All bond8 given by such public
         rsighers or their deputies ahall be subjeot to the
         appruv81 of the Commissioner of firkets and Warehow.-
         es, and all bonds and oath8 of such public weighers
         or their deputies shall be filed wit& arid Ccmmis-
         sionsr.*

         In determining the above stated question it is neoeasaryto,
determine whether or not the publio WOigher8 appointed under said stat-
ute are state or district offiaers a8 contemplated by hrtiole 4, Ssc-
tion 12 of the State Constitution. If the public weighers appointed
by virtue of Artiole'5692 are state or district offioers then the apgoint-
ment of such publia wighers would require oonfirmation by the Senates
under the Constitution. It is stated in the ease Of Il011180nv. State,
61 8.X 1017 (error refused, 61 6.W. (2) 1022) that

              'The clear import, language, and requirement
        of the.Conatitution is that any and every appoint-
        ment by the Oovernor to fill a vao8ncy in a stats or
        distriot office must be with the advioe and oonsezrt
        fo tmMA%rds   of the Senate a8 & aqid Section 12
        provided. e * em

         If such public weighers are not state or district offioers as
contemplated by Article 4, Seotion 12, of the Constitution, then their
appointment muuld not require the confirmation of the Senate required
by the Constitution. (State QX rel. Psndsn v. Valentine, 198 6.11.1006),

         It oannot be determined without great diffioulty whether or not
the publio weighers hare involved are state or district officers a8 oon-
templated by Article 4, Seation 12, of the Constitutione
Honorable Sidney Lathen, Page S (O-5163)



         W8 quote from the oa8e of tie   v. MClemDrO, 160 8.K   1073,
a8 followSr
         I(   . The question, who are state offioera? ha8
         ok&   been judicially Snsrared. Thus in Volmne
         36, Cyc. pp. 652, 653, it $8 said:

        "1 State offloera arm those whose duties oonoern
        the State at large, or the general public, al-
        though exeroised in defined limits, and to whom
        are delegated the Sxaroise of a portion of the
        8o~~ign   power of the 8tatO. They am in a gan-
        era1 8.Sn8ethose IdI   dUtiS8 and poIu9l.S
                                                 are Oo-
        extensive with the state, or are not limited to
        any political SUbdiVisiOn Of the state. . . '

         " And on page 6541

        ic The term *state offioer" ha8 been held to b8
        aS a general rule applicable only to those sup++
        ior executive officers who oonstitute the heads
        of the SxWutive dOpI%wnt8    Of the 8tkS, or 8uoh
        a8 dlong to ow of the three oonstitubnt branch-
        QS of the State government.'

         *In 4meriom & English ti~olopsdia of Law, Vol. 23,             >
         ‘PaiS 324;:it is,~.saidt ~ ~,              .~
        "1 In a popular *ens* a 8tat.aofficer is ow whose
        juri8diotion is aoexten8ivQ with the State. In a
        more snlargqd sense a state officer is am rho r.-
        wive8 hi8 authority under the 1awS of the state
        and performs sane of the gOvorxmwnta1 functions of
        the state.'

        "The Constitution of 6Outh Dakota oontaina a provision
        to the effect that the Governor and all other state and
        judicial officers, &oept oounty judge@, justioea Of
        the peaoe, and polioe magistrates, shall be liablq to.
        impsacfapant,and that all offioers not liable to im-
        peachnent shall be Subjeot to removal for osrtain
        cau8e8 in such manner as may be providedby law. b
        question aro8S before the Suprams Court of that 8tato
        as to whether a member of the board of txwstses of one
        of the educational institutions 6fthe state was a
        state offioer within the meaning of the Constitution,
        so that he m8 removable only by ImpOaoImwA.    In de-
        aiding the question in thS nagatiw tha oourt saysr
                                                                    .      -


                                                                               ,




Honorable Sidney Latham, Page 4 (O-5153)



        8' R are of the opinion that thetenn "state
        officer," a8 used in said section, inclUd88 only
        such general officers as inrmediatelybelong to
        on.8of the tbrC8 co~stitq~t br8nohea of the
        stat8 govwnment * . . .*‘:(Citingseveral author-
        ities).

         It is stated in Texas Jurisprudence, Vol. 34, pge   3778

        *It is Constitutional and statutory law that all
        v&OanCiC8 in state Or distriat OffiC88, exoept
        that of membsrship in the Legislature, shall be
        filled unlasa otherwise provided by law, by appoint-
        ment by the Governor, with the advice and Consent
        of the Senate. . . .8 (Constitution, Art1018 4,
        Se&ion 12; Artiole 19, Vernon's Annotated Civil
        stAtutes)e

         WC quote further frcm Texas Jurisprudence, Vol. 34, pge    334,
as followsr

         “Iia pk$ular aease a state officer is one whose
        juri8diction, duties amd function8 are   OOext~8iVO
        with the State; but in a larg8r 8wm8 he is om who
        receiv8a hi8 authority under stat8 law8 and perfoxms
        8om8 Of the gOvemWnta1   functiOn8 of the State. In
        this 88n88 officers may be state officer8 thougp
        their jurisdiotion or porsrs are aonfind   to the lim-
        it8 of the county or 8v8Y.Ito on8 of its political
        SUbdiViSiOuS. The tew is generally used inthe
        Coristitutionand statutes in it8 popular 8enae as
        inaluding only those officers whose dutiaa md
        function8 lr8 coextensive with the boundaries of ths
        Stats, or such gswral officers a8 immadiatsly be-
        long to 6ne of the thr88 constituent branches of the
        stats government. But it may r8far to the oharacter
        of the office rathar than to it8 territorial extent
        or M&her   the offiae is one for which the ~whole
        stat8 Vote8 01 merely 80311e
                                   Subdivision th8rCOf, 8U6h
        as a distriut or county. The Comptroller of Public
        A&wunts, polio8 officers'and policeman, and the
        health offioars of a oity, are state officers* A
        district attorney is both an offioer of the stat8
        and an officer of the court. But a conmissioner of
        deeds is not a civil officer of the State, sinoe h8
        is not required to reside therein.
                                                           ..
        "BeCau80 an officer is called a aounty offiosr 1%
        does not follow that his function8 lr8 axeraised
Honorable Sidney Latham, Page 5 (o-5153)



        for We county. Moat county and distriot offloera
        perform stat8 funotions and ar8, in a abn88, offi-
        cers of the State. Thus the officer8 nam8d in the
        maximun fee law, though called county officers, are
        in fact state officers. But offioers functioning
        in counties 8nd di8triot8 ar8 not within the atat-
        uts authoriaing th8 Supreme Court to issue writs
        again& the officers of the state government. M-
        reotors of an irrigation diatriot are county offi-
        cer8, and county judges ar8 county and not state
        officera. Justio8s of the pea08 ar8 also oounty
        officers; but when aoting 8x offioio a8 corolyr
        and conducting an inquest a justice aots'for the
        Stat8 md not the oounty 8nd is to all intent8 and
        pUrpO8e8 a state offioer.
         "    . Member8 of the board of trustees of atiind8-
         p&&t    school district are n8ither state officers
         nor memtirr nf 8 stat8 board. TN8tOeS of an ind8-
         pendent or~ownwn school diatriot in a county under
         genelrl law, as di8tinguiahed from those of a oity
         assuming control of it8 schcol8, ara county offiowa.
         But members of ths board of education of a city,
         which derives its existence aud all of its authori-
         ty fromthe city charter, ar8 aity and not county
         offioers.
         "    . J.branch pilot lppoihtid~.under the state law
         1; k officer of the State, though ha is prohibited
         from acting as a pilot on certain vessels unless he
         ha8 a license issued under the provisions of the Fed-
         eral law.".

         &tiole 5680, Vernon~s Annotated Civil Statutes, defines a pub-
110 weigher aa follows:.    -

         "Any person eng~agedin th8 bU8in8S8 of public weighing
         for hire, or any person, who shall neigh or maaaula
         any oonrmodity,produae or artiols, and issue therefor
         a weight owtificate or nsight shest, nfiich &all b
         +ocepted as the accurate weight upon nhichthe puroh-
         l8e or 8ale of auoh oommodity, produce or art1c18.18
         baaed, shallbe known a8 a public weigher, v . .*

         It is stated in Texds Jurisprudence, Vol. 38. page 528:

         "In a oertain 88n88 all parsons holding public office
         nithinthe State or performing 8cmQ of its goverrment-
         al functions are 'officers of the 3tate3* but the term
         is generally used in the Constitution and statutes a8
Honorable Sidney Lathsm, Page 6 (O-5153)



        inoluding on* those officers whose juri8dictiOn
        IS coextensive with the boundaries of the State,
        or such general officers a8 immediately belong to
        one of the three tionstituentbranch08 of the state
        govermnent. Accordingly it'has been held that a
        county treasurer is not a state offiosr within the
        meaning of the statute authorizing the Supreme %u-t
        to issua writs of mandamus againat 'any Di8triot
        Judge or officer of the State gowrmnent3* that a
        countyjudge is not a state officer Within the mean-
        ing of the constitutional provision (art. 4, 8 12)
        requiring appointees to vaoancies in state offloes
        to be confirmed by the Benate . . ."

        WC quote from Ruling Ca8C Law, Vol. 28, page 5 as follows:

         "In order to provide ~for the propsr enforoement of
         statutes relating to weights and meaaure8, provision8
         arb frequently inserted thOrO$n Oreating CeX'tainof-
         fices and imposing on the iqcumhents thereof Certain
         speoified duties. &gislati&      of this charrater, as
         for in8tlnCO WhCrC it rOqUiIW8 ocmmodities k be
         weighed by the pub110 weigher, 18 regarded a8 within
         the police power of the State, ,and aa not violating
         any c-on   right. So it ha8 been decided that a
         statute providing for the weighing of g?ia %y a state
         neighmasfer and making it unlarful for any private in-
         dividual to issue a might certific%ateis a valid exer-
         cise of the legialatiw pCWer. The pQWCr of such legis-
         lation is to 8Ccure fair Weight8 for all parties ooncern-
         ed and to proteot boththa seller and the publia."

         For other definitidks of atata and County officers we refer you
to &~e~ibm Jurisprudence, Vol. 42, page 8958 Ruling Case Law, Vol. 22,
page 386; and &ticle 22, Vernon's Annotated Civil St+tutes.

         7TC ha& been unable to &a   any opinion bythe appellate courts
of this state or any other state pssing upon the question whether or
not a public veigh&- who is appointed by the Governor is a stats or dis-
trict officer or a county or pmoinot offloor as those terms are general-
ly defined and understood. Howmar, taking into consideration the gener-
al definition of stats officers and the definition8 of other officer8
as heretofore discussed, it 18 out opinionthat public weighers appointed
under Article 5692, Vernon's AtxnotatedCivil Statutes are not state or
district officers as oontampl~ted by Artiols 4, Seotion 12, of the State
Constittitionor Attiole 22 of Vernon'8 Annotated Civil Statutes. There-
fore, it is the opinion of this department that the PppOintment of %ich
Honorable Sidney Latham, Page 7 (o-5153)



public meighers.doea not require the confirmation of the Stat.0
Senate,

                                      YOU-8 Wry   tN$'

                                   ATRXNSY   GENERAL OF 'TEXAS


                                   By 8/4rdell -#i11iQllS
                                         Ardell RLLllitia
                                               A88i8tmlt

A.Fmovq    APR 12, 194s

s/h-o&      sellers
-FIRSTASSISTANT
JF3T.~GEaEant

ii&pr;gm                      This Opinion oon8idered and Approved
                              in limited conference.
