Untitled Texas Attorney General Opinion ( 1987 )

Bonorablo Tom Uaness Opinion No.JM-688
Criminal District Attorney
P. 0. Box 2553 Re: Authority of a constable to eu-
Beaumont. Texas 77704 force vehicle weight limitations
under section 6 of article 6701d-11,
V.T.C.S.
Dear Mr. Maness:
In your inquiry you pose the following questions:
1. Does a constable have the authority to
enforce weight limitations for a vehicle under
article 6701d-11, section 6, subdivisions 1 and 2,
V.T.C.S.?
2. Does a constable have the authority to
enforce weight limitations for a vehicle, outside
his precinct, under article 6702-l. section 2.301
(b)(2). V.T.C.S.?
3. Was article 6702-l. section 2.301(b)(2)
repealed by implication by article 6701d-11.
section 6. subdivisions 1 and 3 as amended by Acts
1985. 69th Leg., ch. 458, $1, effective August 26,
1985?
You state that:
On July 14. 1986. the Jefferson County Commis-
sioners' Court passed a resolution concerning
overweight vehicle restrictions on roads in
Jefferson County, Texas; on January 26, 1987, the
Jefferson County Commissioners' Court passed
another resolution giving the authority to enforce
the July 14th restrictions to the 'sheriff, deputy
sheriff, constable. or deputy constable.'
The provisions of section 2.301 of article 6702-l. V.T.C.S..
relative to your inquiry are as follovs:
(a)(l) The commissioners court of any county
may regulate and restrict traffic on county roads
and ou ocher county-owned land under its juris-
dictlou.
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Honorable Tom Maness - Page 2 (m-688)
. . . .
[(b)](2) The commissioners court may esta-
blish load limits for any road or bridge and may
authorize the county traffic officer, if one or
more officers have been appointed, or any sheriff,
deputy sheriff, constable, or deputy constable to
weigh vehicles for the purpose of ascertaining
whether a vehicle is loaded in excess of the
prescribed limit. (Emphasis supplied).
Your concern is prompted by the subsequent passage of an
amendment to section 6 of article 6701d-11, V.T.C.S., as follows:
Subd. 1. Any License and Weight inspector of
the Department of Public Safety, any highway
patrolman. any sheriff or his duly authorized
deputy. or any municipal police officer in Cities
with population of 100,000 or more according to
the most recent federal census. having reason to
believe that the gross weight or axle load of a
loaded motor vehicle is unlawful, is authorized CO
weigh the same by means of portable or stationary
scales furnished or approved by the Department of
Public Safety, or cause the same to be weighed by
any public veigher, and to require that such
vehicle be driven to the nearest available scales
for the purposes of weighing. . . .
It is further provided that in the event the
gross weight of the vehicle exceeds the registered
gross weight. the License and Weight Inspector.
State Highway Patrolman. Sheriff or his duly
authorized Deputy, or any municipal police officer
in cities with population of 100.000 or more
according to the most recent federal census. shall '
require the operator or owner thereof to apply
to the nearest available County Tax Assessor-
Collector for additional registration in an amount
that will cause his gross registration to be equal
to the gross weight of the vehicle, provided such
total registration shall not exceed gross weight
allowed for such vehicle, before such operator or
owner may proceed. . . .
. . . .
Subd. 2. Except inside the limits of incor-
Porated cities over 100.000 in population, the
officers named in Subdivision 1 of this section
are the only officers authorized to enforce
the provisions of this Act. The officers have
exclusive authority to enforce all weight limica-
tions for a vehicle on a state-maintained public
highway. (Emphasis added).
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Honorable Tom Manes8 - Page 3 (JM-688)
You ask if the above quoted portions of section 6, article 6701d-11
repeal section 2.301(b)(2), article 6702-l. or if the two can be
harmonized. It is our opinion that they can be harmonized.
Section 2.301 of article 6702-l is titled "Authority of coamis-
sioners court to adopt traffic regulations for county roads and land.,,
Section 2.301(a)(l) specifies that the commissioners court's authority
to regulate and restrict traffic is "on county roads and on other
county-owned land under its jurisdiction.,, The cosnaissionerscourt's
_ authority to establish load limits in section 2.301(b)(2) "for any
road or bridge,, is limited to county roads and any other county owned
land. On the other hand, article 6701d-11 is entitled "Regulating
operation of vehicles on highways., (Emphasis added). Designated
officers, not including the constable, are vested with authority by
section 6, subdivision 1 of article 6701d-11 to weigh the vehicle or
cause it to be weiahed. Subdivision 2 orovides that these officers
"have exclusive auihority to enforce all weight limitations for a
vehicle on a state-maintained public highway.,, (Emphasis supplied).
Thus, the provisions of article 6701d-I1 apply to enforcement upon
state highwaye and the provisions of article 6702-l are applicable to
county roads.
1. In Burke v. Thomas, 285 S.W.2d 315, 320 (Tex. Civ. App. -
Austin 1955, writ ref'd n.r.e.) the court addressed the subject of
county roads, noting:
We need not dwell upon the meaning of the term 'county
roads' as used in art. 11, sec. 2 [Tex. Const.]. It is a
term of common understanding. It means a public way for
normal means of travel within a county under county super-
vision and control.
In Ball v. Wilbarger County, 37 S.W.2d 1041, 1045 (Tex. Civ. App. -
Amarillo 1931). judgmt adopted (Tex. Comm'n App. 1932) it was stated:
"All the state highways of this state are under the exclusive control
and management of our state highway department." Article 6674q-2.
V.T.C.S.. 'definitions" provides in part:
By the expression 'highways,' 'State Highways' and
'State Designated Highways' are meant roads which prior
to January 2. 1939. had become a part of the System of
designated State Highways, including roads still consti-
tuting a part of such system on said date and those which
theretofore constituted a part of such system, but whose
status had been lost through change , relocation or abandon-
ment and including roads concerning which the State Highway
Commission had prior to January 2. 1939. indicated its
intention to designate, evidencing such intention in the
official records or files.
p. 3188
lionorableTom Maness - Pags 4 (JR-688)
In regard to your inquiry as to whecher a constable has the
"authoricy to enforce weight limitations for a vehicle, outside his
precinct, under article 6702-l. section 2.301(b)(2)." Attorney General
Opinion O-3969 (1941) provides:
You are respectfully advised that it is the
opinion of this department that a constable may
lawfully make an arrest in a precinct other than
his own in his county without a warrant when he
would be authorized by law to make the arrest
without warrant in his own precinct.
See V.T.C.S. art. 6889.
Pou have provided us with copies of the two resolutions passed
.by the commissioners court. We note that they were expressly passed
in accordance with section 2.301 of article 6702-l. The resolutions
provide for enforcement upon county roads and they designate the
constable as ooe of the officers authorized to enforce weight limita-
tions for a vehicle.
SUMMARP
A constable does not have authority under
section 6 of article 6701d-11 to enforce weight
limitations for a vehicle upon a state maintained
public highway. A constable has authority under
the resolution of the Jefferson County Coxm~is-
sioners Court, passed pursuant to section 2.301
of article 6702-l. V.T.C.S., to enforce weight
limitations on county roads, outside his precinct,
within Jefferson County.
JIH MATTOX
Attorney General of Texas
JACRHIGRTOWRR
First Assistant Attorney General
MARYRRLLER
Executive Assistant Attorney General
JUDGE ZOLLIE STRARLRT
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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