Can a county constable enforce truck weight limits on county roads without state certification?

Plain-English summary

Liberty County wanted its Precinct 2 constables to help enforce weight limits on county roads, the kind of rules that keep overloaded trucks from tearing up local pavement and bridges. The county's constable office applied for the Texas Department of Transportation's vehicle weight enforcement training, but the Department turned them down, saying constables and deputy constables are not "weight enforcement officers" under the Transportation Code. The county tried a workaround: it commissioned the constables a second time as deputy sheriffs (who do qualify) and had them work under the sheriff's supervision. An earlier AG opinion had said Texas law allows a person to serve as both a constable and a deputy sheriff. But the Department still refused to certify these dual-commissioned officers because they were not full-time employees of the sheriff's office. The county attorney then asked the AG three questions about who needs Department certification and who controls the authority to weigh trucks.

The AG framed the whole thing around one issue: are there two separate weight-enforcement systems (a county one and a state one), or one combined system? The county had argued for two, with a "county-wide" authority over county roads that the state could not touch. The AG disagreed. Looking at how Texas courts and prior AG opinions have read the County Road and Bridge Act (chapter 251) alongside the Department's weight-and-size authority (chapter 621), the AG found they are consistently construed together as one statewide framework. The leading case, Scurlock Permian Corp. v. Brazos County, treated the specific chapter 621 provisions as exceptions or qualifications to the more general County Road and Bridge Act. So the AG concluded the authority a commissioners court grants a constable under section 251.153(b) is identical to the authority described in section 621.402(e).

From that, the answers followed. Because the certification requirement in the Department's rule flows from section 621.402(e)(1) and qualifies the section 251.153(b) authority, a local officer such as a constable or deputy constable must be Department-certified to enforce weight restrictions, even when enforcing only on county roads. And because section 621.402(e)(2)(B) lets the Department revoke or rescind a constable's office's weight-enforcement authority for noncompliance with its rules, the Department may revoke a constable's authorization to weigh vehicles that a commissioners court granted under section 251.153(b). The AG noted it was not asked to, and did not, opine on the Department's separate refusal to certify a deputy sheriff who is not a full-time employee.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Counties and commissioners courts: At the time of the opinion, the AG read the law to mean a county could authorize constables to weigh vehicles, but that authorization was part of one statewide framework subject to the Department's certification rules and its power to revoke, not a separate county-only system.

Constables and deputy constables: The opinion concluded they must be Department-certified weight enforcement officers to enforce weight restrictions on county roads, and that the Department could revoke their county-granted weighing authority.

The Texas Department of Transportation: The opinion supported the Department's position that its certification and revocation authority under chapter 621 reaches the weighing authority counties grant under chapter 251. The AG expressly did not opine on the Department's refusal to certify non-full-time dual-commissioned deputies.

Common questions

Does a county constable need state certification to enforce weight limits on county roads?
The AG concluded yes. Because chapters 251 and 621 form one statewide framework and the certification requirement qualifies the county-granted authority, a constable must be Department-certified to enforce weight restrictions even on county roads.

Can the state take away an authorization the county commissioners court gave a constable?
The AG concluded yes. Section 621.402(e)(2)(B) lets the Department revoke or rescind a constable office's weight-enforcement authority for failing to comply with its rules, so the Department may revoke a constable's county-granted authority to weigh vehicles.

Is the county's weight authority separate from the state's?
The AG concluded it is not. Courts and prior AG opinions construe the County Road and Bridge Act and chapter 621 together as one framework, so the authority under section 251.153 is identical to the authority described in section 621.402(e).

Did making the constables deputy sheriffs solve the problem?
The AG did not resolve that. It noted the county tried that route and that Texas law allows serving as both, but the AG expressly declined to opine on the Department's refusal to certify a deputy sheriff who is not a full-time employee of the sheriff's office.

Background and statutory framework

The County Road and Bridge Act (Transportation Code §§ 251.001-.161) grants counties authority over county roads. Section 251.153(a) lets a commissioners court establish load limits as prescribed by section 621.301, but only with the Department's concurrence (§ 621.301(a)), and section 251.153(b) lets the court authorize a county traffic officer, sheriff, deputy sheriff, constable, or deputy constable to weigh a vehicle to check its load. Chapter 621 gives the Department authority over vehicle weight and size. Section 621.402(e)(1) requires the Department to establish uniform weighing rules, and its rule requires weight enforcement officers to complete training and maintain certification (37 Tex. Admin. Code § 4.56(b)). Section 621.401 defines "weight enforcement officer" to include sheriffs and deputy sheriffs but only those constables or deputy constables designated under section 621.4015, which limits eligibility by county population (§ 621.4015(a)); an earlier opinion recognized that constables not mentioned in section 621.401 are not authorized to be weight enforcement officers (Tex. Att'y Gen. Op. No. KP-0189 (2018)). Section 621.402(e)(2)(B) lets the Department revoke or rescind a constable office's weight-enforcement authority for noncompliance (see also 37 Tex. Admin. Code § 4.56(f)(2)).

The county suggested splitting the authority into a county-only system and a statewide system, but the AG found judicial and AG opinions construe chapters 251 and 621 together as one framework. In Scurlock Permian Corp. v. Brazos County, a court of appeals treated specific chapter 621 provisions as exceptions to the general County Road and Bridge Act, reconciling the county's load-limit authority with the state's permitting authority under former Revised Civil Statute article 6701d-11 (the predecessor to section 621.101) and holding the specific statute prevails. Prior AG opinions applied the same reading (Tex. Att'y Gen. Op. Nos. GA-0509 (2007); GA-0088 (2003); JC-0517 (2002), each concluding a county may not add weight requirements for a vehicle holding a Department permit). The AG therefore concluded the section 251.153(b) authority is identical to the section 621.402(e) authority, that certification is required (construing section 621.402(e)(1) and its implementing rule as a qualification to section 251.153(b), in harmony with the agency's rulemaking limits in R.R. Comm'n v. Lone Star Gas Co.), and that the Department may revoke a county-granted weighing authorization under section 621.402(e)(2)(B). The County Road and Bridge Act was codified from former article 6702-1 in 1995 (Act of May 1, 1995, 74th Leg., R.S., ch. 165, 1995 Tex. Gen. Laws 1025).

Citations

Statutory and regulatory provisions:

• Tex. Transp. Code § 251.001-.161; § 251.153; § 251.153(a); § 251.153(b); § 621.101; § 621.102; § 621.301; § 621.301(a); § 621.401; § 621.4015; § 621.4015(a); § 621.402; § 621.402(e); § 621.402(e)(1); § 621.402(e)(2)(B)
• 37 Tex. Admin. Code § 4.56(b); § 4.56(f)(2)
• Act of May 1, 1995, 74th Leg., R.S., ch. 165, 1995 Tex. Gen. Laws 1025 (former Rev. Civ. Stat. arts. 6702-1, 6701d-11)

Cases and Attorney General opinions:

• Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 486 (Tex. App.-Houston [1st Dist.] 1993, writ denied)
• R.R. Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)
• Tex. Att'y Gen. Op. No. KP-0189 (2018)
• Tex. Att'y Gen. Op. No. GA-0509 (2007)
• Tex. Att'y Gen. Op. No. GA-0088 (2003)
• Tex. Att'y Gen. Op. No. JC-0517 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0245
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0245.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 11, 2019

The Honorable Matthew Poston Opinion No. KP-0245
Liberty County Attorney
1923 Sam Houston Street, Suite 202 Re: Authority of county law enforcement to
Liberty, Texas 77575 enforce county weight regulations on county
roads (RQ-0251-KP)

Dear Mr. Poston:

    You seek an opinion on the "authority of county law enforcement officers to enforce county

weight limitations on county roads." [1] You tell us that the Liberty County (the "County") Precinct 2
Constable's Office applied for the Texas Department of Transportation's (the "Department")
vehicle weight enforcement training, which the Department denied claiming the constables and
deputy constables did not qualify as "weight enforcement officers" under Transportation Code
section 621.401. See Request Letter at 2; see also TEX. TRANSP. CODE § 621.401 (defining "weight
enforcement officer" to include a sheriff and deputy sheriff but excluding most constables and
deputy constables). You state that in response the County authorized the constables and deputy
constables to assume a second commission as sheriff's deputies and exercise weight enforcement
activities under the supervision of the sheriff's department. See Request Letter at 2; see also Tex.
Att'y Gen. Op. No. KP-0189 (2018) at 2, 4 (determining that Texas law does not preclude a
constable or deputy constable to simultaneously serve as a deputy sheriff). Despite our opinion
concluding Texas law allowed the practice, you inform us that the Department forbids the
certification of such dual-commissioned officers who are not full-time employees of the appointing
agency. [2] See Request Letter at 3.

    In response to the Department's refusal, you ask three questions. Id. at 1. You first ask

whether a local law enforcement officer must be certified by the Department to enforce weight
restrictions on county roads under Transportation Code section 251.153. Id. You next ask whether
the Department can "revoke a county law enforcement officer's authorization granted by the
county commissioners court" under section 251.153. Id. Lastly, you ask whether the authorization
given by a commissioners court under section 251.153 is "identical to the 'authority' described by
... Transportation Code [subsection] 621.402(e)." Id. Your questions implicate several provisions
of the Transportation Code.

    The Transportation Code contains the County Road and Bridge Act, which grants counties

authority over county roads. [3] See generally TEX. TRANSP. CODE §§ 251.001-.161. Subsection
251.153(a) authorizes a county commissioners court to "establish load limits for any county road
or bridge" as prescribed by Transportation Code section 621.301. Id. § 251.153(a); see also id.
§ 621.301(a) (providing authority for county to establish load limits for county roads or bridges
"only with the concurrence of the Texas Department of Transportation"). Relevant here,
subsection 251.153(b) permits a county commissioners court to "authorize a county traffic officer,
sheriff, deputy sheriff, constable, or deputy constable to weigh a vehicle to ascertain whether the
vehicle's load exceeds the limit prescribed by the commissioners court." Id. § 251.153(b).

    The other provisions implicated by your questions are found in chapter 621 of the

Transportation Code, which grants the Department authority over vehicle weight and size.
Subsection 621.402(e)(1) requires the Department to establish rules for uniform weighing
procedures for the accurate weighing of motor vehicles. Id. § 621.402(e)(1). Relevant here, the
Department's rule adopted under subsection 621.402(e)(1) requires, in part, all weight enforcement
officers to attend and successfully complete weight enforcement training provided by the
Department and to maintain certification by fulfilling continuing education requirements. See 37
TEX. ADMIN. CODE § 4.56(b) (Tex. Dep't of Pub. Safety, "Uniform Weighing Procedures for
Weight Enforcement Officers"). Section 621.401 defines a "weight enforcement officer" to
include those constables or deputy constables "designated under Section 621.4015." TEX. TRANSP.
CODE § 621.401; see id. § 621.4015(a) (limiting by population bracket which counties' constables
or deputy constables can be weight enforcement officers). This office recognized that
"[c]onstables and deputy constables not mentioned in section 621.401 are not authorized by that
section to be weight enforcement officers." Tex. Att'y Gen. Op. No. KP-0189 (2018) at 3.
Transportation Code subsection 621.402(e)(2)(B) authorizes the Department to "revoke or rescind
the authority of ... weight enforcement officers of a ... constable's office that fails to comply
with those rules." Id. § 621.402(e)(2)(B); see also 37 TEX. ADMIN. CODE § 4.56(f)(2).

    Your third question about the nature of the "authority" granted in subsections 251.153(b)

and 621.402(e) is fundamental to your other questions, so we address it first. You suggest that
reconciling these provisions requires one to segregate the authority granted to a local law
enforcement officer by a commissioners court under chapter 251 from the authority which the
Department may revoke under chapter 621, resulting in two separate weight enforcement systems:
"a county-wide enforcement authority limited to enforcing county regulations on county roads
[and] a state-wide enforcement authority that expansively gives authority to state and local law
enforcement the ability to enforce state and local regulations." Request Letter at 4-5. Judicial and
attorney general opinions examining different provisions in the County Road and Bridge Act
against provisions in chapter 621 suggest otherwise. These opinions construe chapter 251 and
chapter 621 together, implicitly recognizing that they are part of one statewide framework.

    In Scurlock Permian Corp. v. Brazos County, a Texas court of appeals determined that the

specific provisions of chapter 621 are exceptions to, or qualifications to, the more general
provisions in the County Road and Bridge Act. See 869 S.W.2d 478, 486 (Tex. App.-Houston
[1st Dist.] 1993, writ denied). The court considered provisions in the County Road and Bridge
Act authorizing a county to establish load limits on any road or bridge against the State's authority
under Revised Civil Statute article 6701d-11-the predecessor statute to Transportation Code
section 621.101-to regulate the size and weight of vehicles on Texas highways. [4] See id. at 481.
At issue was Brazos County's traffic regulations imposing a weight limit on vehicles traveling on
its county roads and providing for a county permit system for vehicles exceeding the established
weight. See id. at 482. After legislative amendments to article 6701d-11 established a statewide
permitting system, Scurlock, a crude oil marketing and oil field service company, purchased a
statewide permit and sought to enjoin Brazos County from requiring county permits, arguing that
the amendments to article 6701d-11 preempted Brazos County's power to regulate vehicle weight.
See id. The trial court found that article 6701d-11 irreconcilably conflicted with the County Road
and Bridge Act's grant of authority to counties to regulate overweight vehicles. See id.

    The court of appeals noted that the Legislature is presumed to have adopted its amendments

regarding the statewide permitting system with knowledge of the County Road and Bridge Act.
See id. at 486. The court also recognized the two statutes concerned the same subject matter and
construed them to give meaning to both. See id. The court stated that "[a] special or specific act
is properly regarded as an exception to, or qualification of, a general law on the same subject
previously enacted." Id. The court observed that the County Road and Bridge Act deals generally
with "a county's authority to regulate traffic on county roads," whereas article 6701d-11
specifically authorizes "the state to issue permits for overweight vehicles, and grants counties
limited power to issue [such] permits." Id. Thus, the court reconciled the two statutes finding that
the "specific provisions of article 6701d-11 are an exception or qualification to the general
provisions of the County Road and Bridge Act; and that article 6701d-11 prevails over the County
Road and Bridge Act." Id.

    Similarly, previous attorney general opinions considering analogous provisions under the

County Road and Bridge Act against chapter 621 utilize the same analysis, construing them
together as part of one framework. See Tex. Att'y Gen. Op. Nos. GA-0509 (2007) at 1-2
(construing county's authority to set road weight limits in subsection 251.153(a) against
Department's authority to set maximum gross weights in section 621.102 and concluding that a
county may not require a permit for an overweight vehicle when the operator has a permit from
the Department), GA-0088 (2003) at 7 ("A commissioners court may not impose additional
regulations with regard to weight on trucks granted an overweight certificate by the . . .
Department .... "), JC-0517 (2002) at 3 ("A county has no authority to permit or to impose
additional requirements on a vehicle that has a permit from the Department ...."). Like the
Scurlock opinion, these attorney general opinions recognize a statewide weight enforcement
framework instead of isolated provisions granting separate authorities.

    These analogous opinions direct an affirmative answer to your third question. A court

would likely conclude that one statewide weight enforcement framework exists, and the authority
granted to a constable under subsection 251.153(b) is identical to the authority described by
subsection 621.402(e).

    With regard to your first question about the required certification of a local law

enforcement officer, Transportation Code sections 251.153 and 621.402 concern the same subject
matter and should be construed to give meaning to both. See Scurlock, 869 S.W.2d at 486.
Following the lead of the Scurlock opinion, we construe subsection 621.402(e)(1) and the rule
implementing it as a qualification to subsection 251.153(b), thereby preserving the meaning of
both provisions. While the certification requirement is in the Department's rule, it is a rule
mandated by and in harmony with subsection 621.402(e)(1). See generally R.R. Comm'n v. Lone
Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992) ("The determining factor ... whether ... a
particular administrative agency has exceeded its rule-making powers is that the rule's provisions
must be in harmony with the general objectives of the Act."). Thus, a local law enforcement
officer, by the authority granted by a commissioners court, may enforce weight restrictions but
only if he or she is a certified weight enforcement officer. Accordingly, a court would likely
conclude that a local law enforcement officer such as a constable or deputy constable must be
certified by the Department to enforce weight restrictions, even if he or she enforces those
restrictions only on county roads.

    With regard to your second question about the Department's authority to revoke a constable

or deputy constable's authority, we likewise construe subsection 621.402(e)(2)(B) as an exception
to, or qualification of, the general authority granted in subsection 251.153(b). So construing the
provisions, a county may authorize its constables and deputy constables to weigh vehicles subject
to the Department's authority to revoke or rescind the constable or deputy constable's appointment
as allowed by subsection 621.402(e)(2)(B). Thus, a court would likely conclude that the
Department may revoke a constable's authorization to weigh vehicles granted by a county
commissioners court under subsection 251.153(b).

                                  SUMMARY

                   Following analogous judicial and attorney general opinions,
           a court would likely conclude that one statewide weight
           enforcement framework exists under Transportation Code chapters
           621 and 251. Thus, the authority granted to a constable or deputy
           constable under Transportation Code section 251.153 is identical to
           the authority described by Transportation Code section 621.402.

                    Construing Transportation Code subsection 621.402(e)(1),
           and the Department of Transportation's rule implementing it as a
           qualification to Transportation Code subsection 251.153(b), a court
           would likely conclude that a local law enforcement officer such as a
           constable or deputy constable must be certified by the Department
           to enforce weight restrictions, even if he or she enforces those
           restrictions only on county roads.

                   Similarly, construing Transportation Code subsection
           621.402(e)(2)(B) as a qualification to Transportation Code
           subsection 251.153(b), a court would likely conclude that the
           Department may revoke a constable's authorization to weigh
           vehicles granted by a county commissioners court.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Matthew Poston, Liberty Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 10, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You do not ask and we do not opine on the Department's authority to forbid the certification of a deputy sheriff who is not a full-time employee of the sheriff's office. See TEX. TRANSP. CODE § 621.401.

[3] The Legislature codified article 6702-1 of the Revised Civil Statutes, also known as the County Road and Bridge Act, in the Transportation Code in 1995. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 251.001-.161 (codifying nonsubstantive revision), § 24 (repealer), 1995 Tex. Gen. Laws 1025, 1150-61, 1871.

[4] See supra note 3.