## GENERAL

Gerald C. yhnn Auu- aa.m

Honorable SidneyLatham 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 aonfinnedby the Senate befOr the i88UPnOe Of NU,,mi88iOn by the Secretary of State.
Your letter of March 20, 1943, requesting the opinion of this departmentOn the above 8tatedmatter read8 in part a8 fOllOw8:

'You are respeotfully requested to advise this Departmentupon the following inquiry*

il "*~Should a F%blia Weigher appointed under Artiole.5692,R.C.8: 1925, be oonfinnedby the &rate of Texas tier appointment ky the Governor and before the issuanoeof a oommissionto suoh offioer by the Secretary of Stats?'
" *

. . . . ~. kcle 6692,Vernon's Annotated Civil Statutes,provides:

"In all countiesof this Stats inwhich there are two or more cities, tow38 or shipping points that reaeive asmuch 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 oarefullyand aocurataly aeigh all oanmodities tendered for the purpose ofweighing for 8hipne&, sale or purohaaa. This article shall not apply to Galveston and &eoes oounties. All 8UCh appointments shall bsmade by the Governor on the reaommendation of the Senator from whose senatorial distriot such appointment is *de, togetherwith amajority of the representatives in the Legislature from such senatorial distriot.Honorable Sidney Latham, Page 2 (O-5153)

No man Shall be appointedunless he shall reoeive the endor8emOnt of the Senator and a majority of the representative8from such district. Every publicweigher 80 appointed shall file a bond payable to the State of Texas, in the 8um of fivo thousPnd~ dollars, conditionedthat he will aaourately 'ybigh, ormea8ure, all ocmnnoditias tendered to m in said county for weighing ormeasuring,and that all oertifiOPtO8 of lmight issued by him shall repreSent a true and

locurateweight of such produce soweighed, and otherwise oomplyingwith the law governing the oonditionsof bonds required of publicweighers. Such bond 80 given shall not bp void upon first reooverybutmay b8 sued on 8uooessivelyby c, apd all persons~#rho

are injuredw such publio zigher. Such public weigher shallhave the right to appoint a 8uffioiemtnumber of depUtie8 to aid him in weighing ormeasuring any owxodity that is tendered to him for weighing. All bond8 given by such public rsighers or their deputies ahall be subjeot to the appruv81of the Commissionerof firkets and Warehow.- es, and all bonds and oath8 of such publicweighers or their deputies shall be filed wit& arid Ccmmissionsr.*

In determining the above stated question it is neoeasaryto, determinewhether or not the publioWOigher8 appointedunder said statute are state or district offiaers a8 contemplatedby hrtiole 4, Ssction 12 of the State Constitution. If the publicweighers appointed by virtue of Artiole'5692 are state or district offioers then the apgointment of such publia wighers would require oonfirmationby 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 distriotoffice must be with the advioe and oonsezrt fo tmMA%rds of the Senate a8 & aqid Section 12 provided. e * em If such publicweighers are not state or district offioers as contemplatedby Article 4, Seotion 12, of the Constitution,then their appointmentmuuld not require the confirmationof the Senate required by the Constitution. (State QX rel. Psndsnv. Valentine, 198 6.11. 1006),

It oannot be determinedwithout great diffioultywhether or not the publioweighers hare involvedare state or district officers a8 oontemplated by Article 4, Seation 12, of the ConstitutioneHonorable 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 inVolmne 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 Ooextensivewith the state, or are not limited to any political SUbdiVisiOnOf 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 officerswho oonstitutethe heads of the SxWutive dOpI%wnt8 Of the 8tkS, or 8uoh a8 dlong to ow of the three oonstitubntbranchQS 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 aoexten8ivQwith 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 polioemagistrates, shall be liablq to. impsacfapant,

and that all offioers not liable to impeachnent shall be Subjeotto removal for osrtain cau8e8 in suchmanner 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 statewas a state offioerwithin 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, inclUd88only 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 Constitutionaland 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 onewhose juri8diction,duties amd function8 are OOext~8iVO with the State; but in a larg8r 8wm8 he is om who receiv8a hi8 authorityunder stat8 law8 and perfoxms 8om8 Of the gOvemWnta1 functiOn8 of the State. In this 88n88 officersmay be state officer8 thougp their jurisdiotionor porsrs are aonfind to the limit8 of the county or 8v8Y.I to on8 of its political SUbdiViSiOuS. The tew is generallyused inthe Coristitution

and statutes in it8 popular 8enae as inaluding only those officerswhose dutiaa md function8 lr8 coextensivewith the boundaries of ths Stats, or such gswral officers a8 immadiatslybelong to 6ne of the thr88 constituentbranches of the stats government. But itmay r8far to the oharacter of the office rathar than to it8 territorial extent or M&her the offiae is one for which the ~whole stat8Vote8 01merely 80311e Subdivisionth8rCOf, 8U6h as a distriut or county. The Comptrollerof Public A&wunts, polio8 officers'andpoliceman,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 conmissionerof deeds is not a civil officer of the State, sinoe h8 is not required to reside therein.

. . "BeCau80an officer is calleda aounty offiosr 1% does not follow that his function8 lr8 axeraisedHonorable SidneyLatham, Page 5 (o-5153)

for We county. Moat county and distriot offloera perform stat8 funotions andar8, 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 di8triot8ar8 not within the atatuts authoriaingth8 Supreme Court to issue writs again& the officers of the state government. Mreotors of an irrigationdiatriot 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 atiind8- p&&t school districtare n8ither state officers normemtirr nf 8 stat8board. TN8tOeS of an ind8- pendentor~ownwn schooldiatriot in a countyunder genelrl law, as di8tinguiahedfrom those of a oity assuming control of it8 schcol8, ara county offiowa. Butmembers 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 issuedunder the provisions of the Federal law.". &tiole 5680,Vernon~s Annotated Civil Statutes, defines a pub110weigher aa follows:. -

"Any person eng~aged in th8 bU8in8S8 of publicweighing for hire, or any person,who shallneigh ormaaaula any oonrmodity,

produae or artiols, and issue therefor a weight owtificate or nsight shest, nfiich&all b +ocepted asthe accurateweight upon nhichthe purohl8e or 8ale of auoh oommodity,produce or art1c18.18 baaed, shallbe known a8 a publicweigher, 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 'officersof the 3tate3* but the term is generallyused in the Constitutionand statutes a8Honorable Sidney Lathsm, Page 6 (O-5153)

inoluding on* those officerswhose juri8dictiOn IS coextensivewith the boundariesof the State, or such general officers a8 immediatelybelong to one of the three tionstituent branch08 of the state govermnent. Accordingly it'hasbeen held that a countytreasurer is not a state offiosrwithin the meaning of the statute authorizingthe Supreme %u-t to issuawrits ofmandamus againat 'anyDi8triot Judge or officer of the State gowrmnent3* that a countyjudge is not a state officerWithin themeaning of the constitutionalprovision (art.4, 8 12) requiring appointeesto vaoancies in state offloes to be confirmedby the Benate . . ."
WC quote from Ruling Ca8C Law, Vol. 28, page 5 as follows:

"In order to provide~forthe propsr enforoementof statutesrelating to weights and meaaure8, provision8 arb frequently insertedthOrO$n Oreating CeX'tainoffices and imposingon the iqcumhentsthereof Certain speoifiedduties. &gislati& of this charrater,as for in8tlnCOWhCrC it rOqUiIW8 ocmmoditiesk be weighed by the pub110weigher, 18 regarded a8within the police power of the State,,andaa not violating any c-on right. So it ha8 been decided that a statuteproviding for the weighing of g?ia %y a state neighmasfer andmaking 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 definitidksof atata and County officerswe refer you to &~e~ibm Jurisprudence,Vol. 42, page 8958 Ruling Case Law, Vol. 22, page 386;and &ticle 22, Vernon'sAnnotated Civil St+tutes.

7TCha& been unable to &a any opinionbythe appellate courts of this state or any other state pssing upon the questionwhether or not a publicveigh&- who is appointedby 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 considerationthe general definition of stats officers and the definition8 of other officer8 as heretoforediscussed, it 18 out opinionthat publicweighers appointed under Article 5692,Vernon's Atxnotated Civil Statutes are not state or district officersas oontampl~tedby 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 %ichHonorable Sidney Latham, Page 7 (o-5153)

public meighers.doeanot require the confirmationof the Stat.0 Senate,
YOU-8Wry 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 oon8ideredand Approved in limited conference.