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 rsigher 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 Artiole.5692, R.C.8: 1925, be oonfinned by the &rate 

of Texas tier appointment ky the Governor and before 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 reaeive as much as fifty thousand bales of cotton, or 

twenty-five tona of cotton seed, or one hun+wd thouaand ixshels of'graip,at~ hundred thousand k8helS of 

rioe, or one hundred thousand pounds of mo$, or five 

thousand ?zarrels of 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 oanmodities 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 appointment is *de, together with a majority of the representatives 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 public 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 ocmnnoditias tendered to m in said 

county for weighing or measuring, and that all oertifiOPtO8 of lmight issued by him shall repreSent a 

true a nd l ocurate 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 reoovery but may b8 sued on 8uooessively by c, apd 

all persons~#rho are injured w such publio zigher. 

Such public weigher shall have the right to appoint 

a 8uffioiemt number of depUtie8 to aid him in weighing 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 Ccmmissionsr.* 

In determining the above stated question it is neoeasaryto, 

determine whether or not the publio WOigher8 appointed under said statute are state or district offiaers a8 contemplated by hrtiole 4, Ssction 12 of the State Constitution. If the public weighers appointed 

by virtue of Artiole'5692 are state or district offioers then the apgointment of such publia wighers would require oonfirmation by the Senates 

under the Constitution. It is stated in the ease Of Il011180n v. 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 appointment 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 oontemplated 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, although 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 ganera1 8.Sn8e those IdI dUtiS8 and poIu9l.S are Ooextensive 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 branchQS 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.a officer 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 impeachnent 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 deaiding 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 inrmediately belong to 

on.8 of the tbrC8 co~stitq~t br8nohea of the 

stat8 govwnment * . . . *‘:(Citing several authorities). 

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 appointment 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 limit8 of the county or 8v8Y.I to on8 of its political 

SUbdiViSiOuS. The tew is generally used inthe 

Coristitution and statutes in it8 popular 8enae as 

inaluding only those officers whose dutiaa md 

function8 l r8 coextensive with the boundaries of ths 

Stats, or such gswral officers a8 immadiatsly belong 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 l r8 axeraised 
Honorable Sidney Latham, Page 5 (o-5153) 

for We county. Moat county and distriot offloera 

perform stat8 funotions and ar8, in a abn88, officers 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 atatuts authoriaing th8 Supreme Court to issue writs 

again& the officers of the state government. Mreotors of an irrigation diatriot are county officer8, 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 ati ind8- 

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 authority fromthe city charter, ar8 aity and not county 

offioers. 

" . J. branch pilot l ppoihtid~. 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 Federal law.". 

&tiole 5680, Vernon~s Annotated Civil Statutes, defines a pub110 weigher aa follows:. - 

"Any person eng~aged in 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 purohl 8e 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 goverrmental 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 tionstituent branch08 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 meaning 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'tain offices 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 individual to issue a might certific%ate is a valid exercise of the legialatiw pCWer. The pQWCr of such legislation is to 8Ccure fair Weight8 for all parties ooncerned 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 district officer or a county or pmoinot offloor as those terms are generally defined and understood. Howmar, taking into consideration the general 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 Atxnotated Civil Statutes are not state or 

district officers as oontampl~ted by Artiols 4, Seotion 12, of the State 

Constittition or Attiole 22 of Vernon'8 Annotated Civil Statutes. Therefore, 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 

A.Fmovq APR 12, 194s 

s/h-o& sellers 

-FIRST ASSISTANT 

JF3T.~GEaEant 

ii≺gm 

By 8/4rdell -#i11iQllS 

Ardell RLLllitia 

A88i8tmlt 

This Opinion oon8idered and Approved 

in limited conference.