Can a Texas county abolish the elected office of county public weigher?

Texas AG Opinion DM-0035: A County May Abolish the Elective Office of Public Weigher

Plain-English summary

The Kerr County Attorney asked whether the commissioners court could abolish the elective office of Kerr County Public Weigher. The Attorney General concluded it could.

The reasoning was short. The state constitution sets a term for the office where it exists but does not require a county to elect a public weigher, and the current statute, Agriculture Code section 13.253, says only that a commissioners court "may provide for the election of a public weigher." There was no longer an express statutory procedure for abolishing the office (an older statute, repealed in 1981, had provided one by petition and election). Even so, the opinion applied the settled rule that, absent a constitutional or statutory prohibition, the power to create an office includes the power to abolish it. Because the commissioners court has discretion to create the office, it also has authority to abolish it.

The opinion then addressed procedure. The commissioners court must consider and adopt the abolition order in open session under the Open Meetings Act, with notice and a record, because the action is a "meeting" of a "governmental body" and no exception allowed a closed session. The opinion advised notifying any incumbent and giving an opportunity to be heard, citing Tarrant County v. Ashmore for the point that an officeholder has a recognizable due-process interest in the office. Finally, abolishing the elective office is a "change" in voting practice under section 5 of the federal Voting Rights Act, so the abolition could take effect only after the county obtained preclearance from the U.S. Justice Department or a declaratory judgment from the U.S. District Court for the District of Columbia.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Open Meetings Act has since been recodified into chapter 551 of the Government Code, and the preclearance requirement of section 5 of the Voting Rights Act discussed here was effectively suspended by the U.S. Supreme Court's 2013 decision in Shelby County v. Holder. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Why could the county abolish the office without a special statute?
Because the Attorney General applied the general rule that, absent a constitutional or statutory prohibition, the power to create an office carries the power to abolish it. Agriculture Code section 13.253 gives the commissioners court discretion to create the office, so the court also had authority to end it.

Did the commissioners court have to act in an open meeting?
Yes. The opinion concluded that considering and adopting the abolition order was a meeting of a governmental body under the Open Meetings Act, with no exception for a closed session, so it had to be done in open session with notice and a record.

Did the incumbent weigher have any rights in the process?
The opinion advised giving the incumbent notice and a chance to be heard. Citing Tarrant County v. Ashmore, it explained that while the office is not a property interest, it is a recognizable interest for due-process purposes.

Why was the federal Justice Department involved?
At the time, abolishing the elective office was a change in voting practice under section 5 of the Voting Rights Act, so it could take effect only after federal preclearance or a declaratory judgment confirming it would not abridge minority voting rights.

Background and statutory framework

Texas Constitution article XVI, section 65 provides for the term of the office of public weigher where it has been created but does not require a county to elect one. Agriculture Code section 13.253(a) provides that a commissioners court "by order may provide for the election of a public weigher to serve only within the county for which the weigher is elected." The public-weigher provisions in chapter 13, subchapter E of the Agriculture Code were first adopted in 1981 (Acts 1981, 67th Leg., ch. 135), replacing older civil-statute provisions (V.T.C.S. articles 5680 et seq., including articles 5681, 5683, and 5686, since repealed) under which the secretary of state appointed weighers in certain cities and counties elected them, and article 5686 provided for abolition by petition and election. The opinion relied on Bennett v. City of Longview, City of Palestine v. West, and a Texas Jurisprudence treatise for the rule that the power to create an office includes the power to abolish it absent a contrary constitutional or statutory provision. On procedure it applied the Open Meetings Act (V.T.C.S. article 6252-17, sections 2(a), 3A, 3B), cited Tarrant County v. Ashmore on the incumbent's due-process interest, and applied section 5 of the Voting Rights Act of 1965 (now 42 U.S.C. section 1973c) and the preclearance procedures in 28 C.F.R. part 51. Prior Attorney General Opinion H-995 (1977) was also cited.

Citations

Constitutional, statutory, and regulatory provisions:

• Texas Constitution article XVI, section 65 (term of office of public weigher)
• Agriculture Code §§ 13.252, 13.253 (election of public weighers)
• V.T.C.S. articles 5680 et seq., 5681, 5683, 5686 (repealed) (former public-weigher provisions)
• Open Meetings Act, V.T.C.S. article 6252-17, §§ 2(a), 3A, 3B
• Voting Rights Act of 1965, section 5 (now 42 U.S.C. § 1973c); 28 C.F.R. part 51 (preclearance)

Cases:

• Bennett v. City of Longview, 268 S.W. 786 (Tex. Civ. App.-Texarkana 1925, no writ)
• City of Palestine v. West, 37 S.W. 783 (Tex. Civ. App. 1896, no writ)
• Tarrant County v. Ashmore, 635 S.W.2d 417, 420 (Tex.), cert. denied, 459 U.S. 1038 (1982)

Prior Attorney General opinion referenced: H-995 (1977).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0035
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0035.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

September 5, 1991

Honorable David Motley
Kerr County Attorney
323-B Earl Garrett
Kerrville, Texas 78028

Opinion No. DM-35

Re: Whether the Kerr County Commissioners 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 XVI, 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 office. Agric. Code § 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.[1] 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 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 authorized 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 §§ 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 inhibition, the power to create an office includes the power to abolish it. See Bennett v. City of Longview, 268 S.W. 786 (Tex. Civ. App.-Texarkana 1925, no writ); Carter v. [county name garbled in scan], 200 S.W. 537 (Tex. Civ. App.-Amarillo 1918, no writ); City of Palestine v. West, 37 S.W. 783 (Tex. Civ. App. 1896, no writ); see also 60 Tex. Jur. 3d Public Officers and Employees § 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 cannot 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 office 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 the commissioners court would clearly be a "meeting" of a "governmental body," within the meaning of that act. Id. § 1. We find no exceptions in the act which would permit the proceedings to be closed to the 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 Tarrant County v. Ashmore, 635 S.W.2d 417, 420 (Tex.), 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).

Finally, 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 Cong. & Admin. News (79 Stat.) 439 (now at 42 U.S.C. § 1973c), such that the abolition of the office may only become effective upon the county's 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

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[1] The chapter 135 provisions were codified later in the 1981 session as part of the Agriculture Code, which was also adopted during the 1981 session. See Acts 1981, 67th Leg., ch. 388, at 1012 (adoption of Agriculture Code); Acts 1981, 67th Leg., ch. 693, § 14, at 2592 (conforming provision of chapter 135, supra, to Agriculture Code).