                   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 -
