THEATTORNEYGENERAL 

OF TEXAS 

AUS~N m.TExas 

September 19, 1960 

Honorable John C. White 

Commissioner of Agriculture 

Department of Agriculture 

Austin; Texas 

Dear Commissioner White: 

Opinion Wo. WW-940 

Re: Application of Article 

5704, Vernon's Annotated Civil Statutes, 

with reference to the 

Publics Weighers Laws in 

light of Article 5680 

and Article 5693, Vernon's Annotated Civil 

Statutes. 

You have requested an opinion of this office concerning the following question: 

Is a manufacturer (owner) of a product (bulk cement), 

who In the due course of its business, weighs such product In 

person and issues a weight ticket or memorandum showing the 

weight upon which the selling price of the product is based, 

a public weigher as defined by Article 5680, V.A.C.S., when 

read in conjunction with Article 5704 and Article 5693, V.A.C.S.? 

Article 5680 above referred to reads 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 welght upon which the purchase 

or sale of such commodity, produce or article is 

based, shall be known as a public weigher, and 

shall comply with the provisions of thjs 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." 

As defined in this article, a public weigher is either 

"any p,erson engaged in the business of public weighing for hire 

. . ..or "any person who shall weigh or measure any commodity, 
Honorable John C. White, page 2 (WW-940) 

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, 

produce or article is based. . . *lr 

The first definition does not apply in this case 

since the owner manufacturer in your request is not exacting 

a fee for the service of weighing, but does the weighing for 

the purpose of determining the purchase price of his product. 

Since you state that the owner manufacturer issues a weight 

ticket or memorandum showing the weight of the product, we 

need only to determine whether the owner manufacturer otherwise comes within the provisions of the second definition. 

Thus, the problem resolves itself into three parts: 

"bulk cement" constitute 

First, 

does "any commodity, produce or article"? Second, does the term 'person" as used in the statute 

include corporations or firms, assuming the owner manufacturer 

in your request is a corporation or firm? Third, are the exemptive provisions of Article 5704, V.A.C.S., applicable in 

this case? 

We are of the opinion that bulk cement falls within 

the scope of the term "commodity" as used in Article 5680. 

This term has been defined in Attorney General's Opinion O-73 

(19391, and among the various definitions cited therein is the 

following taken from United States v. Sischo, 262 Fed. 1001, 

1005 (1919): "'Commodity' is defined as an article of trade; 

a movable article of value; something that is bought and sold." 

If the owner manufacturer in question is an individual, 

then he Is clearly a "person" as that term is used in Article 

5680, and therefore a public weigher as therein defined, If, 

however, the owner manufacturer is other than a natural person& then the question arises as to the scope of the term "person as used in the definition. Inasmuch as Article 23, V.A.C,S., 

states that the term "person" includes a corporation unless the 

context indica,tes a different meaning, it i.s necessary to determine whether the Legislature intended the term npersonfs as 

used in Article 5680 to include corporations or firms in addition to natural persons. 

Article 

Bill 248, Acts of 

and the amendment 

Leg., R,S., 1921, 

follows: 

5680 is derived from Se@t,ion 1 of House 

the 36th Leg., R.S., 1919, ch. 76, p0 122, 

thereto, in Senate Bill 180, Acts of the 37X-1 

ch. 86, po 168, which reads in part as 

"All persons, firms, corporatfons, copartnerships, or individuals, engaged 4n the 

business of public weighing ,for hire, or any 

person, firm, or corporation who shall weigh 
\ 

Honorable John C. White, page 3 (WW-940) 

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, produce or article is 2ased, 

shall be known as a public weigher. a 0 . 

(Emphasis added.) 

It oan readily be seen that the principal difference 

between the original Act's definition and the definition in 

Article 5680 is the deletion of the underscored language from 

Article 5680. We feel that this modification in language 

should be considered and given effect in ascertaining the 

legislative intent. 

B 128, page 241, "The 

As stated in 39 Tex.Jur,, Statutes, 

omission of a significant word or provision from an amendment or re-enactment Indicates a desire 

to change the effect or interpretation of the Act, or an intention to exclude the object theretofore accomplished by the 

words omitted." We are not able to say that by deleting the 

specific Inclusion of a corporation or firm within the definition of a public weigher that the Legislature intended to 

continue to include a corporation or firm within the definition. 

Title 93, of which Chapter 6, Public Weighers, is a 

part, is titled "Markets and Warehouses", and consists of nine 

chapters. Disregarding Chapter 1, which pertains to the Commissioner of Agriculture, only one other chapter, Chapter 5, 

Qinners and Cotton, contains a definition which makes no specific reference to a corporation or firm. Article 567qa, 

Section 1, In defining a public cotton classerf does not refer 

to a corporation OP firm, but only to 'persons', although Article 5666 in the same chapter, in defining "g,fnners", includes 

corporations. Both a cotton classer and public weigher are of 

such a nature that one utilizing their services must necessarily repose a great deal of trust and reliance on the integrity and competenoy of the individual actually performing 

the service rendered. It is our opinion that the Legislature 

intended that such positions of trust should be entrusted to 

individuals, over whom control could better be maintained, than 

to a ffrm or corporate entity. 

The emergency clause of the original laws governing public weighers, found in House Bill 2448, Acts of the 

36th Leg., R.S., 1919, ch. 26, g 20, page 127, contains the 

following language which lndioates the purpose of the Legislature in passing the public weighers laws: 

"The fact that there is now no adequate law 

governing public weighers in this State. and the 

Further i;act that, a-great amount of fraud is 

known to exist in the weighing and measuring of 
Honorable John C. White, page 4 (W-940) 

produce In this State, by parties who are under 

no bond and responsible to no authority that 

would prevent them from committing fraud, creates 

an imperative public necessity. ~ . ." 

added.) 

(Emphasis 

It is therefore our opinion that a corporation or 

firm cannot 

2 

ualify as a public weigher within the definition 

of Article 5 80. 

!fhis is not to say, however, that the individual(s) 

who actually performs the duties of weighing for the corporation or firm does not qualify as a public weigher. 

the term 'person" includes individuals. 

Obviously, 

5693, 

In addition, Article 

which states that "no one shall be allowed to pursue the 

business of weighing for the public or grant a certificate or 

weight sheet upon which a purchase or sale is made unless he 

comply with the provisions of this chapter o " would clearly 

bring such employee within the provisions and-requirements of 

the public weigher chapter, thus maintaining the control and 

supervision which the Legislature intended to impose for the 

protection of the public on those who weigh items and issue 

weight certificates upon which a sale or purchase is made, 

The opinion above reached tha,t the owner manufacturer, 

if a corporation or firm, does not qualify as a public weigher, 

but that its employees or agents do, Is not pre-empted by Article 5704, V.A.C.S,, which reads in part as follows: 

"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 order for the benefit of this provision to fall 

to the owner manufacturer of bulk cement, it would be necessary 

to construe the items listed therein as being representative and 

not exclusive. Giving Article 5704 the broadest and most liberal 

interpretation possible, the items listed therein are representative of agricul,tural products, and clearly bulk cement could 

never be classified as an agrieultural product. Therefore, the 

provisions of Article 5704 do not apply to the owner manufacturer 

of bulk cement. 

A manufacturer (owner), other than a natural 

person, who weighs bulk cement and j.ssues a weight 

ticket on which the sale or purchase price of such 

product is based is not a public weigher as defined by Article 5680, V.A,C,S., but the employee 

who actually performs the weighing must comply with 
Honorable John C. White, page 5 (w-940) 

the provisions of the public weigher laws, and 

the provisions of Article 5704, V.A.C.S., are 

not applicable to a manufacturer (owner) of bulk 

cement. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

RHW:bh 

APPROVED: 

OPINION COMMITTEE 

W, V. Geppert, Chairman 

John Reeves 

Bill Allen 

L. P. Lollar 

Ben Harrison 

Robert Ii. Walls 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

Leonard Passmore