. . 

THE A-IT~RNEY GENE-L 

OF TEXAS 

Hon. Edgar-E. Payne 

County Attorney 

Hockleg County 

Levelland, Texas 

Dear Sir: OpinFon No. O-1423 

Re: .Is Roy Dunn, Justice Precinct No. 

5, Hockley County, Texas, a public weigher? 

Your request for an opinion on the following question 

and statement of facts has been received: 

"IS ROY DUNN, OF JUSTICE PRECINCT NO. 5, 

HOCKLN COUNTY, TEXAS, A PUBLIC WEIGHER? 

"Statement of facts. 

For the past several years, there has been 

elected a public weigher for Justice Precinct No. 

5, Hockleg County, Texas, under authority of 

Article 5683, Rev. Civ. Statutes 1925, and a 

public weigher was so elected for said Precinct 

on November 8, 1938, and he has complied with 

the requirements of Chapter 6 of the Rev. Civ. 

Statutes and has quallfted as said public weigher, was sworn in Andy has received his certificate from the Commissioner of Markets and Warehouses as well as his Commission of office. 

"Prior to thts year (1939). the elected public weigher has weighed cotton at the Lubbock 

Compress Company at its office in Levelland, 

Texas, and a charge of 10 cents per bale of cotton has been made for his weight tickets. Whether or not the public weigher was paid a salary 

for hFs services, received the 10 cents charged 

for weighing, or worked under some othertrade 

or agreement with the compress company, I do 

not know and I believe is Fmmaterial in arrlvlng at a correct answer to the question here 

involved. 

"Sometime during the past year the present 
. - 

Ron. Edgar E. Payne, page 2 O-1423 

elected public weigher was offered a salary to 

weigh cotton at the compress company's office 

and he refused their offer. 

"Roy Dunn has never been elected to the office of public weigher of said Precinct No. 5. 

"Roy Dunn presented a bond to the commissioners ' court of Hockleg County, Texas, and the court 

passed the following order: 

"'WHEREAS, Roy Dunn has presented to the 

bommlssioners' court a good and sufficient bond 

as public weigher of cotton, wool, sugar, grain, 

hay and pecans in accordance with law in the sum 

of Twenty-five Hundred ($2500) Dollars, and 

'WHEREAS, he desires to weigh for compensation for the public, and 

'WHEREAS,' he is a resldent citfzen of Prec. 

'No. 5, Hockley County, Texas, 

"IT IS THWHPORE, ordered by this court 

that this bond. be in all things approved and 

that the County Clerk of Hockleg County notify 

the Commissioner of Markets and Warehouses of 

Texas of the approval of said bond. 

ATTEST: (Signed ) C.D. Bass 

County Clerk (Signedj 

J. A. Ellis 

County Judge' 

whfch said order, you will note, is not dated 

but was filed in the office of the County Clerk 

of Hockley County, Texas, on the 10th day of 

January A.D. 1939, and that portion of the order relative to notifying the Commissioner Markets and Warehouses has been done by the said 

clerk. 

"Roy Dunn was not appointed as public weigher by the Governor upon the recommendation of 

the senator and a majority of the representatives 

from this senatorial district, in fact, has not 

been appointed. 

"The following state of facts also exist: 

1. Lm, TEXAS IS THE ONLY CITY AND/OR 

TOWN LOCATED WITHIN SAID JUSTICE PRECINCT 

NO. 5; 
. 

Hon, mgar E. Payne, page 3 o-1423 

2. LEVELLAND, TEXAS HAS NEVER RECEIVED IN AhT 

ONE YEAR ONE HUNDRED THOUSAND BALES OF COTTON FOR SALE OR FOR SHIPMENT; Art. 5681; 

3. LEVELLAND, TEXAS HAS NEVER RECElVED AS MTJCH 

AS FIFTY THOUSAND BALES OF COTTON, TWENT?- 

FIVE THOUSAND TONS OF COTTONSEED, NOR THE 

AMOUNT LISTED OF ANY OTHER COMMODIT1 NOR 

ANY COMMODITY IN LARGE QUANTITIES; Art. 5681; 

"Roy Dunn is not the owner of the Lubbock 

Compress Company but has made some kind. of trade 

or agreement to weigh cotton at the compress for 

them. The company does not buy nor seI1 cotton 

but only compresses and stores it and apparently 

Roy Dunn has attempted to qualify under Article 

5704 but there would be no need for the owner to 

weigh cotton as therein provided, and the company 

is not in a place where no public weigher has been 

appointed or elected. Art. 5704." 

As pointed out in opinion No. O-1188 of this Department to the Honorable W. S. Bussey, Chief of the Weights and 

Measures Division of the Department of Agriculture: 

"Numerous opinions have been written by this 

department on questions relating to pu'blic 

weighers, first, who are appointed under Articles 5681. and 5692, Revised Civil Statutes, 

1925; second, elected under Article 5683, Revised Civil Statutes, 1925; and who qualify 

y-&r AEti$i,e+2704, Revised Civil Statutes, 

D 

on the 

vision 

Roy Dunn is listed as a duly qualified public weigher 

Fublic Weighers Ledger of the Weights and Measures Diof the Department of Agriculture as foliows: 

"Roy Dunn. Levelland. Public Weigher. 

Article 5704, Revised Civil Statutes, 1925. 

Precinct No. 5- 

10, 1941." 

Certificate expires January 

Since Roy Dunn has qualified under Article 5704 of 

Revised Civil Statutes, 1925, your question is whether or not 

Article 5704 authorizes private weighers to qualify as public 

weighers and weigh for hire where there are regularly elected 

(Article 5683, R.C.S.. 1925) or a pointed public weighers (Articles 5681 and 5692, R.C.S., 1925 P . 
Hon. Edgar E. Payne, page 4 O-1423 

Article 5680 of the Revised Civil Statutes, 1925, defines "Public Weigher" as follows: 

"Any person engaged in the business of public 

weighing for hire, or any person, who shall weigh 

or measure any commodity, produce or article, and 

issue therefor a weight certificate or weight 

sheet, which shall be accepted as the accurate 

weight upon which the purchase or sale of such 

commodity, product or article is based, shall be 

known as a public weigher, and shall comply with 

the provisions of this chapter. The provisions 

of this article shall not apply to the owners, 

managers, agents or employees of any compress or 

any public warehouse in their operation as a warehouseman. This exemption shall not apply in any 

manner to any Texas port." 

follows: 

Article 5704, Revised Civil Statutes, 1925, reads as 

"Nothing in this chapter shall prevent any 

person, firm or corporation from weighing his 

own cotton, wool, sugar, hay, grain or pecans 

in person. In places where there are no public 

weighers appointed or elected, any person who 

shall weigh cotton, wool, sugar, grain, hay or 

pecans fcr compensation shall be required before weighing such produce to enter into a bond 

for twenty-five hundred dollars approved and 

payable as in case of public weighers referred 

to in this chapter, and conditioned that he 

will faithfully perform the duties of this office and turn over all property weighed by him 

on demand of the owner. This article shall not 

apply to merchant flouring mills." 

It will be noted that the statute reads that I'in places 

where there are no public weighers appointed or elected, any 

person who shall weigh, etc." The language of the statute is 

not prohibitory. It does not state that in places where there 

are public weighers appointed or elected, no person shall qualify as a weigher for compensation". The statute cannot be construed as a prohibition. 

In the case of Paschal v. Inman, 157 S.W, 1158, the 

Supreme Court of Texas held in an injunction suit instituted 

by a duly elected and qualified public weigher of Justice Frecinct No. 4 of Wood County to restrain Inman from conducting 

the business of a private weigher in such precinct and for the 

recovery of damages: 
- . 

Hon. Edgar E. Payne, page 5 O-1423 

"The business of private weighing is a legltimat,e vocation and falls within those ordinary 

occupations of life which the citizen is privileged to follow as an inalienable right, subject 

only to such restraints and limitations as may 

be imposed in a valid exercise of the police 

power of the State. Since the liberty of pursuit as to such a calling is not dependent upon 

legislative sanction, the author1t.y for its 

abridgment must rest in some positive and valid 

l.egal inhibition. l . * *. *" 

"It is c early recognized in the present 

statutes tha & the election of a public weighe;n 

in a justice precinct shall not operate as a 

denial to all persons of the right to therein 

pursue the business of private weighing." * * *'I 

The case of Martin v. Fog, 234 S,W. 698, decided by 

the Amarillo Court of Civil Appeals, is amp1.e legal authority 

for answering your question in the affirmative, It holds that 

any person has the right to pursue the occupation of weigher 

for the public, and that the bond required of such weigher is 

the,bona provided for in Article 7834, Complete Texas Statutes, 

1920. (Article 7834 being almost identical with Article 5704, 

R.C.S., 1925). 

The court reviewing the legislation on the subject 

said: 

"We not only~do not find the 'positive inhibition' against the pursuit of the business by 

others than those appointed or elected, but, as 

stated, the language used in the act suggests 

the contrary purpose.' 

and again -- 

"If it had been the intention of the Legislature 

to prohibit any persons except all official weighers, 

elected or appointed under the terms of the law, 

from engaging in the business of weighing, it,,would 

have been easy to have expressed such intent. 

On August 6, 1926, George B. Terrell, Commissioner of 

Agriculture, directed the identical question before us to 

Attorney General, Dan Moody. It read: 

"Under Articles 5680 and 5704, R.C.S., 1925, may anY 

citizen other than an official weigher, elected or appointed 
. - 

Hon. Edgar E. Payne, page 6 O-1423 

under the terms of the law, 

ing for the public. 

engage in the business of weighI quote Article 5704 (7834) (4216), etc." 

Han, C 

In a conference opinion dated September 2, 1.926, by 

.L. Stone, Assistant Attorney General, and countersigned 

by Attorney General, Moody, it was held: 

"1 * The business of private weighing is a 

legitimate vocation and falls within those orj,fnary occupations which a citizen is privileged 

to follow as an inalienable right, subject onl,y 

to the valid exercise of the police power of 

the State, 

"2 . Since the right of a person to engage in 

the business of weighing for the public in not 

dependent upon legislative sanction and the authority for its abridgment must rest in some positive and valid legal inhibition in the absence 

of such inhibition, a person is authorized to 

engage in the occupation of weighing for the 

public notwithstanding the fact that there is a 

duly appointed or elected and qualified public 

weigher in the same city, precinct, or county." 

'On September 14, 1927, in the administration of Attorney Generai, Claude Pollard, 

1927, by the Honorable Joe S. 

in an opinion dated September 22, 

Brown, Assistant Attorney General,, it was held: 

"As t.he Court has held in effect, any private individual shall have the privilege of 

weighing for compensation by entering into a 

bond for $2,500000 approved and payable, as in 

the case of public weigher and conditions that 

he vii1 faithfully perform the duties of his 

office and turn over property weighed by him on 

demand of owner. The statute does not provide 

for any particular term of office. The time 

which a person shall exercise an occupation of 

weighing for the public it seems is left within, 

the discretion of the person who qualifies under 

the statute. 

"It is the opinion of this Department that 

such weigher who qualifies under Article 5704 

would occupy said position so long as the public 

for whom he is weighing is protected by a bond 

as requires by the statute. 
Hon. Edgar E. Payne, page 7 O-1423 

In opinion No. O-1188 of this Department we have previously recognized the right of a private individual to 

qualify as a weigher for the public under Art. 5704, R.C.S., 

1925. 

It is our opinion that any person may qualify as a 

weigher for, the public for hire under Articles 5680 and 5704, 

R.C.S., 1925, and weigh for the public for compensation irrespective of whether or not there are regularly elected or 

appointed public weighers in the same precinct. Since the indiviaual named in your~letter has posted bona in the statutory amount and same has been approved by the Commissioners' 

Court in compliance with Article 5704, R.C.S., 1925, and, certificate has been issued by the Division of Weights and Measures of the Department of Agriculture upon the authority of 

then court order, we hold that said individual is authorized to 

engage in the occupation of weighing for the public notwithstanding the fact that there is a duly appointed or elected 

and qualified public weigher in the same precinct. 

We wish to thank you very much for the able brief 

which you submitted upon the subject, end call your attention 

to the fact that we are enclosing copies of opinions dated~ 

August 6, 1926 and September 22, 1927 of former administrations of this department, the former being conference opinion 

by Assistant Attorney General C.L. Stone to Hon. Geo. B. 

Terrell, Commissioner of Agriculture and the latter belng 

opinion by Assistant Attorney General, Joe S. Brown;to Hon. 

Geo. B. Terrell, Commissioner of Agriculture, Austin, Texas. 

Trusting that we have fully answered your inquiry, 

we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

DS:ob 

Encl. (opinions dated 

8-6-26 and 9-22-27) 

APPROVED SEF 29, 1939 

s/Gerald C. Mann 

A'ITORNEY GENERAL OF TEXAS 

By s/Dick Stout 

Dick Stout 

Assistant 

Approved Opinion Committee By s/BWB Chairman