DAN MORALES 

Al-foRNEy GENERAL 

QMfice of tfp? f4ttornep Qherat 

Mate of IEexas 

Stptember 5,199l 

Honorable David Motley . 

Kerr Comty Attorney 

323-B Bar1 Garrett 

Kerrville,Texas 78028 

Dear Mr. Motley: 

Opinion No. DM- 35 

Re: Whether the Kerr County Commissioners ~Court may 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 is elected. (Emphasis added.) 

The provisions regarding public weighers in what is now chapter 13, 

subchapter E, Agriculture Code, of which section 13.253 is 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 5680 et seq., which 

required the secretary of state to appoint public weighers in cities receiving specified 

‘TIIC chapter l35 provisions were cod&d later in the 1981 session as part of the Agriculture 

Code, which was also adopted during the 1981 session. See Ads 1981, 67th Leg., 15. 388, at 1OlZ 

(adoption of Agriculture We); Acts 1981,67tb Leg., clr, 693,s 14, at 2592 (conforming provision of 

chapter l35, mpm, to Ag?icldture Code). 

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Honorable David Motley - Page 2 (DM-35) 

amounts of cotton 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(repealed). Article 5686 (repealed) provided for the abolition of the elective office 

of public weigher in a county pursuant to petition and election. 

The 1981 bill 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subchapter ,E, repealed former articles 5681.5683, and 5686 as well as most of the 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 now no 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. See Bennett v. Ci@ of Longvicw, 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 of Pales& v. West, 37 S.W. 783 (Tex. Civ. App.-1896, 

no writ); see also 60 ‘RX., JUR. 3d Pgblic Ojbrs and Employees 5 25 (1988). As 

Agriculture Code section 13.253 gives 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 of the proceedings as required by sections 3A and 3B of that 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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Honorable David Motley - Page 3 (DM-35) 

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, if any, in the office to be abolished 

be notified of such proceedings and afforded an opportunity to. attend and be heard. 

See Tammt County v. Ashmm, 635 S.W.2d 417,42X3 (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 of public weigher 

is clearly a “change” in voting practice or procedure within the meaning of section 5 

of the federal Voting Rights Act of 1965. Act of Aug. 6, 1965, Pub. L No. 89-110, 

1965 U.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 of the office would not have the effect of abridging 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 of Kerr County Public Weigher. 

DAN MORALES 

Attorney General of Texas 

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Honorable David Motley - Page 4 (DM-35) 

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 

P. 177