DAN MORALES

Al-foRNEy GENERAL 

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oftfp? f4ttornep Qherat Mate of IEexas Stptember 5,199l

Honorable David Motley
. Kerr Comty Attorney 323-BBar1Garrett Kerrville,Texas 78028
Dear Mr. Motley: Opinion No. DM- 35 Re: Whether the Kerr County Commissioners ~Courtmay abolish the office of County Public Weigher (RQ-105)

You ask whether the Kerr County Commissioners Court may abolish the elective office of Kerr County Public Weigher. We conclude it may. Although article KVI, section 65, of the state constitution provides for the term of such office where it has been created, the constitution does.not require a county to elect a public weigher. Attorney General Opinion H-995 (1977). Neither does the current statutory authority for a county’s electing a public weigher require a county to have such elective offtce. Agric. Code 0 13.253. Subsection (a) of that section provides in relevant part:

(a) The commissioners court of a county by order may provide for the election of a public weigher to serve only within the county for which the weigher iselected. (Emphasis added.) The provisions regarding public weighers in what is now chapter 13, subchapter E, Agriculture Code, ofwhich section 13.253is a part, were.first adopted
. in 1981. Acts 1981, 67th Leg., ch. 135, at 344.’ Prior to 1981, the provisions regarding public weighers were found in the civil statutes, articles 5680etseq., which required the secretary ofstate to appoint public weighers in cities receiving specified

‘TIIC chapterl35 provisionswerecod&d laterin the 1981session as partof theAgriculture Code, which was also adopted during the 1981session. See Ads 1981,67th Leg., 15. 388, at 1OlZ (adoptionofAgricultureWe); Acts 1981,67tbLeg.,clr,693,s 14,at2592(conformingprovision of chapterl35,mpm, toAg?icldture Code).

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amounts ofcotton for sale, permitted him to appoint weighers in certain other cities, and required all counties in which there were no cities where the secretary of state was ,authoriaed to appoint weighers to elect weighers. V.T.C.S. arts. 5681, 5683 (repealed). Article 5686 (repealed) provided for the abolition of the elective office ofpublic weigher in a county pursuant to petition and election. The 1981bill adopting the provisions now in Agriculture Code chapter 13, subchapter ,E, repealed former articles 5681.5683, and 5686 as well as most of the other provisions regarding public weighers, and established a system whereby the Department of Agriculture had discretion to appoint public weighers of specific classifications, and counties were permitted to provide for the election of public weighers in addition to such-departmental appointees. Agric. Code 88 13.252, 13.253. There is nowno express statutory provision for abolishing the county elective office of public weigher. Nevertheless, we believe that the Kerr County Commissioners Court has the authority to abolish that office, Unless there is a constitutional or statutory inbtbition, the power to create an office includes the power to abolish it. SeeBennett v. Ci@ofLongvicw,268 S.W. 786 (Tax. Civ. App.- Texarkana 1925,no writ); Caner v. W&refer County, 200 S.W. 537 (Tex. Civ. App.- Amarillo 1918,no writ); City ofPales& v. West,37 S.W.783 (Tex. Civ. App.-1896, no writ); see also 60 ‘RX., JUR. 3d Pgblic Ojbrs and Employees 525 (1988). As Agriculture Code section 13.253gives the commissioners court discretion to create the office, we believe the commissioners court also has authority to abolish it. You also ask about the procedures required for abolition. You suggest that abolition procedures must comply with the Texas Open Meetings Act and the federal Voting Rights Act and should include a public hearing. While we camrot attempt to formulate step-by-step procedures the commissioners court should follow, we agree that the commissioners court must consider and adopt the order abolishing the offtce in open session as required by section 2(a) of the Open Meetings Act, article 6252-17, V.T.C.S., and give notice and make a record ofthe proceedings as required by sections 3A and 3B ofthat act. The consideration and adoption .of such order by tbe commissioners court would clearly be a “meeting” of a “governmental body,”within the meaning of that act. Id

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0 1. We find no exceptions in tbe act which would permit the proceedings to be closed to tbe public. We would also advise that the incumbent, ifany, in the office to be abolished be notified of such proceedings and afforded an opportunity to.attend and be heard. See Tammt Countyv.Ashmm, 635 S.W.2d417,42X3 (Ten.), cert.denied, 459 U.S. 1038(1982) (while officeholder’s interest in office is not a “property” interest, it is a “recognizable” interest for purposes of due process requirements, such that he should be given notice of and an opportunity to be heard at proceeding to abolish the office). Fmally, we agree that abolishing the elective county office ofpublic weigher is clearly a “change”in voting practice or procedure within the meaning of section 5 ofthe federal Voting Rights Act of 1965. Act ofAug. 6, 1965,Pub. L No. 89-110, 1965U.S. Code Gong. & Admin. News (79 Stat.) 439 (now at 42 U.S.C. 0 1973c), such that the abolition of the office may only become effective upon the county% obtaining from the U.S.Justice Department a “preclearance” determination that the abolition ofthe officewould not have the effect ofabridging minority voting rights -+ or, alternatively, upon obtaining a declaratory judgment to that effect from the U.S. District Court for the District of Columbia. See 28 C.F.R. part 51 (procedures for submitting voting changes to Justice Department for preclearance). SUMMARY The .Kerr County Commissioners Court has authority to abolish the elective office ofKerr County Public Weigher.

DAN MORALES Attorney General ofTexas

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WILL PRYOR First Assistant Attorney General MARYKELLER Executive Assistant Attorney General JUDGEZOLLIE STEAKIEY (Ret.) Special Assistant Attorney General RENEAHICKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by William Walker Assistant Attorney General

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