Untitled Texas Attorney General Opinion ( 1977 )

THEA~TORNEYGENERAL
OF TEXAS
AUSTIN. Tmx~s 78711
May 19, 1977
Honorable W. E. Snelson, Chairman Opinion No. H-995
Committee on Intergovernmental
Relations Re: Status of the offices of
Senate of the State of Texas Inspector of Hides and Animals,
Austin, Texas and of Public Weigher in Harris
County.
Dear Senator Snelson:
The Senate Intergovernmental Relations Committee is
considering separate bills to abolish the office of public
weigher in Harris County and also the office of inspector of
hides and animals in that county. You ask whether article
16, section 64 of the Texas Constitution requires that each
county have an office of inspector of hides and animals, and
whether article 16, section 65 requires that each county have
an office of public weigher.
Both those constitutional provisions, added in 1954, ex-
pressly mention the office of Inspector of Hides and Animals,
and section 65 of article 16 expressly mentions Public Weighers
also, but neither of them purports to establish such offices or
to require that each county in the state maintain them. Article
16, section 64 specifies a term of four years for the inspector
of hides and animals specifically, and for county and precinct
officers generally. Article 16, section 65 regulates the tran-
sition from two year to four year terms for various offices.
Attorney General Opinion WW-1110-A (1962) indicated that
the offices of inspector of hides and animals and public
weigher existed in only a few counties even though their terms
were mentioned in the Constitution. That opinion construed
article 16, sections 64 and 65 as merely intending to in-
crease to four years the terms of certain constitutional and
statutory offices which article 16, section 30 of the Consti-
tution had theretofore limited to two years. Thus, itis our
opinion that neither office is mandated by article 16, sec-
tions 64 or 65 of the Constitution.
p. 4128
Honorable W. E. Snelson, Chairman - page 2 (H-995)
You also ask if article 13.08(c) of the Texas Election
Code establishes either office or requires that each county
hold elections for them.
Article 13.08 of the Election Code governs the conduct
of primary elections. Subsection (c) thereof sets out the
schedule of fees which a candidate must pay in order to have
his name placed on the ballot for the office he seeks. It
specifically lists fees for inspectors of hides and animals
and for public weighers, but, again, the statute does not pur-
port to establish such offices.
With respect to the office of inspector of hides and
animals, you ask two additional questions:
Does Chapter 130, Acts of the Sixteenth
Legislature, Regular Session, adding Harris
County to the counties in which all laws
relating to acts encouraging stock raising
and for the protection of stock raisers,
abolish the Office of Inspector of Hides
and Animals in Harris County?
Does the inclusion of Article 7306 in
Title 124 of the 1911 Codification of
the Texas Revised Civil Statutes, [now V.T.C.S.
art. 70061 operate to negate the provision
of Article 7305 [now V.T.C.S. art. 70051
of that same Act? Article 7305 exempts
many counties, among them being Harris
County, "from the provisions of this
chapter, and from all laws regulating in-
spection of hides and animals."
Virtuallv identical questions were answered by the
Amarillo Court of Civil Appeals in Boyd v. Dillard, 127
S.W.2d 963 (Tex. Civ. Aoo. -- Amarillo 1939, writ ref'd).
In that case Boyd was e&ted inspector of hides and animals
for Lubbock County but Dillard, the county judge, refused to
allow him to qualify or to enter upon the duties of the office.
The court first characterized the question to be decided as
"whether or not the office of hide and animal inspector exists
in Lubbock County," and then traced the background of the' of-
fice, at page 964:
P. 4129
‘ .
Honorable W. E. Snelson, Chairman - page 3 (H-995)
The Constitution, Art. 16, Sec. 23,
Vernon's Ann.St., provides that: "The
Legislature may pass laws for the regu-
lation of live stock and the protection
of stock raisers in the stock raising
portion of the State, and exempt from
the operation of such laws other por-
tions, sections, or counties: and shall
have power to pass general and special
laws for the inspection of cattle, stock
and hides and for the regulation of
brands; provided, that any local law
thus passed shall be submitted to the
free-holders of the section to be af-
fected thereby, and approved by them,
before it shall go into effect."
This provision was included in the Con-
stitution as it was adopted in 1876. Soon
after the adoption of the Constitution,
the Legislature passed a comprehensive act
for the protection of stock raisers, the
principal elements of which are now in-
cluded in Chapter 7, Title 121, R.C.S.
1925, embracing Arts. 6972 to 7004, in-
clusive.
Article 6972 establishes the office of Inspector of
Hides and Animals and requires that such an officer be elected
in "[elach organized county, not expressly excepted herein."
The excepted counties are listed by article 7005. Like Harris
County, Lubbock County was not one of those excepted in the
original 1876 act. Harris County was added to the excepted
list by the Sixteenth Legislature in 1879 and Lubbock County
in 1917. As the Boyd v. Dillard court explained:
In 1909 the 31st Legislature enacted
what is now Arts. 7006, 7007 and 7008
which provide substantially that when-
ever twenty-five qualified voters of
each justice precinct in any county, or
a majority thereof, shall petition the
commissioners' court for an election to
determine whether such county shall have
a hide and animal inspector, the court
shall order such election to be held
after thirty days notice.
P. 4130
- .
Honorable W. E. Snelson, Chairman - page 4 (H-995)
I&at 964.
The,Boyd V. Dillard court held that the legislative in-
clusion of Lubbock County in the article 7005~list of excepted
counties abolished the office of inspector of hides and animals
in Lubbock County notwithstanding that Lubbock County had pre-
viously voted to have such an officer for the county inasmuch as
it exempts such counties "from all laws regulating the inspec-
tion of hides and animals," including article 7006. -Id. at 964.
The court observed at page 965:
That Art. 7006 is a law regulating the
inspection of hides and animals, and
that it is such a law as is contem-
plated by Art. 16, Sec. 23 of the Con-
stitution in which the Legislature is
given authority to exempt counties from
the operation of laws passed by it re-
gulating the inspection of hides and
animals, cannot seriously be questioned.
Article 7006 does not apply to Harris County because
article 7005 and its predecessors exempt HarrisCounty from
its operation. Boyd v. Dillard, supra. --
See also Attorney
General Opinions O-7242 (1946); O-508 (1939); 53 Tex. Jur. 2d,
Stock Laws § 20 at 370. Therefore, it is our opinion that
chapter 130, Acts of the 16th Legislature, abolished the office
of Inspector of Hides and Animals in Harris County.
In connection with the office of Public Weigher you ask:
If no local option election has been
held creating the office of Public
Weigher in Harris County, does such
an office exist?
The office of public weigher is an elective office "[iIn
all counties other than Travis County in which there are no
city or cities in which the Secretary of State is authorized
to appoint public weighers." V.T.C.S. art. 5683. The
Secretary of State is authorized "and required" to appoint
five persons as public weighers in every city which receives
annually one hundred thousand bales of cotton on sale or for
shipment; in every city and town which receives any other
commodities in large quantities "it shall be lawful" for him
to appoint public weighers. V.T.C.S. art. 5681. Houston
P. 4131
. .
Honorable W. E ‘. Snelson, Chairman - page 5 (H-995)
is such a city', and therefore there is no statutory pro-
vision for the election of a public weigher in Harris County,
but the Secretary of State is required by law to appoint
public weighers for ~certain cities. See V.T.C.S. art. 5692;
Attorney General Opinion M-122 (1967)TGenerally see 61 Tex.
-
Jur. 2d, Weights and Measures S 2 at 71.
SUMMARY
~The offices of inspector of hides and
animals and of public weigher are not
established by article 16, sections 64
or 65 of the Texas Constitution for each
county of the state, nor does article
13.08 of the Texas Election Code establish
such offices. The offices are otherwise
statutorily established, but the office
of inspector of hides and animals .in Harris
County has been statutorily abrogated and
the office of public weigher in Harris
County is an appointive office, not an
elective office.
truly yours,
Attorney General of Texas
APPROVED:
B-=--v& t Assistant
Opinion Committee
km1
P. 4132