Untitled Texas Attorney General Opinion ( 1991 )

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Mate of IEexas
DAN MORALES Stptember 5,199l
Al-foRNEy
GENERAL
Honorable David Motley . Opinion No. DM- 35
Kerr Comty Attorney
323-B Bar1 Garrett Re: Whether the Kerr County Commis-
Kerrville,Texas 78028 sioners ~Court may abolish the office of
County Public Weigher (RQ-105)
Dear Mr. Motley:
You ask whether the Kerr County Commissioners Court may abolish the
elective office of Kerr County Public Weigher. We conclude it may.
Although article KVI, section 65, of the state constitution provides for the
term of such office where it has been created, the constitution does. not require a
county to elect a public weigher. Attorney General Opinion H-995 (1977). Neither
does the current statutory authority for a county’s electing a public weigher require
a county to have such elective offtce. Agric. Code 0 13.253. Subsection (a) of that
section provides in relevant part:
(a) The commissioners court of a county by order may
provide for the election of a public weigher to serve only within
the county for which the weigher is elected. (Emphasis added.)
The provisions regarding public weighers in what is now chapter 13,
subchapter E, Agriculture Code, of which section 13.253 is a part, were.first adopted .
in 1981. Acts 1981, 67th Leg., ch. 135, at 344.’ Prior to 1981, the provisions
regarding public weighers were found in the civil statutes, articles 5680 et seq., which
required the secretary of state to appoint public weighers in cities receiving specified
‘TIICchapter l35 provisions were cod&d later in the 1981 session as part of the Agriculture
Code, which was also adopted during the 1981 session. See Ads 1981, 67th Leg., 15. 388, at 1OlZ
(adoption of AgricultureWe); Acts 1981,67tb Leg., clr,693,s 14, at 2592 (conforming provisionof
chapterl35, mpm, to Ag?icldtureCode).
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Honorable David Motley - Page 2 (DM-35)
amounts of cotton for sale, permitted him to appoint weighers in certain other cities,
and required all counties in which there were no cities where the secretary of state
was ,authoriaed to appoint weighers to elect weighers. V.T.C.S. arts. 5681, 5683
(repealed). Article 5686 (repealed) provided for the abolition of the elective office
of public weigher in a county pursuant to petition and election.
The 1981 bill adopting the provisions now in Agriculture Code chapter 13,
subchapter ,E, repealed former articles 5681.5683, and 5686 as well as most of the
other provisions regarding public weighers, and established a system whereby the
Department of Agriculture had discretion to appoint public weighers of specific
classifications, and counties were permitted to provide for the election of public
weighers in addition to such-departmental appointees. Agric. Code 88 13.252,
13.253.
There is now no express statutory provision for abolishing the county elective
office of public weigher. Nevertheless, we believe that the Kerr County
Commissioners Court has the authority to abolish that office, Unless there is a
constitutional or statutory inbtbition, the power to create an office includes the
power to abolish it. See Bennett v. Ci@of Longvicw, 268 S.W. 786 (Tax. Civ. App.-
Texarkana 1925, no writ); Caner v. W&referCounty, 200 S.W. 537 (Tex. Civ. App.-
Amarillo 1918, no writ); City of Pales& v. West, 37 S.W. 783 (Tex. Civ. App.-1896,
no writ); see also 60 ‘RX., JUR. 3d Pgblic Ojbrs and Employees 5 25 (1988). As
Agriculture Code section 13.253 gives the commissioners court discretion to create
the office, we believe the commissioners court also has authority to abolish it.
You also ask about the procedures required for abolition. You suggest that
abolition procedures must comply with the Texas Open Meetings Act and the
federal Voting Rights Act and should include a public hearing.
While we camrot attempt to formulate step-by-step procedures the
commissioners court should follow, we agree that the commissioners court must
consider and adopt the order abolishing the offtce in open session as required by
section 2(a) of the Open Meetings Act, article 6252-17, V.T.C.S., and give notice
and make a record of the proceedings as required by sections 3A and 3B of that act.
The consideration and adoption .of such order by tbe commissioners court would
clearly be a “meeting” of a “governmental body,” within the meaning of that act. Id
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Honorable David Motley - Page 3 (DM-35)
0 1. We find no exceptions in tbe act which would permit the proceedings to be
closed to tbe public.
We would also advise that the incumbent, if any, in the office to be abolished
be notified of such proceedings and afforded an opportunity to. attend and be heard.
See Tammt County v. Ashmm, 635 S.W.2d 417,42X3 (Ten.), cert. denied, 459 U.S.
1038 (1982) (while officeholder’s interest in office is not a “property” interest, it is a
“recognizable” interest for purposes of due process requirements, such that he
should be given notice of and an opportunity to be heard at proceeding to abolish
the office).
Fmally, we agree that abolishing the elective county office of public weigher
is clearly a “change”in voting practice or procedure within the meaning of section 5
of the federal Voting Rights Act of 1965. Act of Aug. 6, 1965, Pub. L No. 89-110,
1965 U.S. Code Gong. & Admin. News (79 Stat.) 439 (now at 42 U.S.C. 0 1973c),
such that the abolition of the office may only become effective upon the county%
obtaining from the U.S. Justice Department a “preclearance” determination that the
abolition of the office would not have the effect of abridging minority voting rights -+
or, alternatively, upon obtaining a declaratory judgment to that effect from the U.S.
District Court for the District of Columbia. See 28 C.F.R. part 51 (procedures for
submitting voting changes to Justice Department for preclearance).
SUMMARY
The .Kerr County Commissioners Court has authority to
abolish the elective office of Kerr County Public Weigher.
DAN MORALES
Attorney General of Texas
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Honorable David Motley - Page 4 (DM-35)
WILL PRYOR
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
JUDGEZOLLIE STEAKIEY (Ret.)
Special Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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