l_irmei~ r~o. w~s.:~r_t CONSIDE_RFl'('ION OF f~1ROl_ISl-IIIUG TFiE: ELE.CT7:VE OF1=:(l~E OF I;EI~I~ GOLJIVI-Y F'U(11_:[C WSIGiI-iF=R On this the 9tl-~ d~:,.y of Sep~t:emk~e:•r 197., ~-ipon mo~ti.on rnadc t;y Cornmi.ssiorre=r i-lolel 1991 OFFICE: Commissioners Court TIME PREFERRED: SUBJECT: (PLEASE BE SPECIFIC) Consideration of abolishing the elective office of Kerr County Public Weigher. EXECUTIVE SESSION REQUESTED: YES PLEASE STATE REASON FOR EXECUTIVE SESSION NO x ESTIMATED LENGTH OF PRESENTATION: 30 PERSONNEL MATTER - NAME OF EMPLOYEE: NAME OF PERSON ADDRESSING THE COURT: comm. Pct. /13 Time for submitting this request for Court to assure that the matter is posted to accordance with Article 6252-17 is as follows: * Meetings heid on second Monday: 12:00 P.M. previous Wednesday * Meetings held on Thursdays: 5:00 P.M. previous Thursday THIS REQUEST RECEIVED BY: is THIS REQUEST RECEIVED ON : 9/4/91 ~ 11:30 am All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Guidelines. ~!: F.y~ e tt ~~~ ~' m '`•r , DAN MORALES nTmrovcr eenssn~ - -- - - - ------------ ~j.tJ.x~i 05: ~9 ATTUNNEY GEIJ'UF']IJIOPaS 51 ~'ac3~li0 ~~02 ®ffict of ttje ~tia>:tttp tt~enertii ~viate of QGexag , P.~ q s -9~ September 5,1991 Honorable David Motley Kerr County Attorney 323-B Sari Garrett Kerrville, Texas '78028 Dear Mr. Motley: Opinion No. DM- 3S Re: Whether the Kerr County Commis- sioners 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 wnclude it may. A]though artiC]e 7M, secdon 65, of the state constitution provides for the term of such office where it has been created, tht 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 office, AgrIc: Code $ 13.253. Subsection (a) of that section provides in relevant part: (tt) 77tt comtniasioncrs 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 l:..eg., ch. 135, at 344.1 Prior to 1981, the provisions regarding public wcighera were found in the civil statutes, articles 5680 er seq., which required the secretary of state to appoint public weighers in cities receiving specified 1Tho chapter 135 provWonc were codifed lacer in the 1981 session as part of the Agicutture Codo, which waa also sdopted during the 1981 session. See Acts 1981, 67th Leg., ch, 388, al 1012 (adopiioa of Agrituituro Code), Ada 1981, G7th Leg., ch. 693, ¢ 14, at 2592 (conform'uig provisions of chapter 135, awprq, to Agrkuituro Codo). p. 179 NonorableDavIdMotley-Paget (nM-35d amounts of cotton for sale, penatitted him to appoint weighers in certain other cities, and required ell counties in which there were no cities where the secretary of state was authoriud to appoint weighers to elect weighers. V.T.C.S. aru. 5681, 5683 (repealed), Article 5666 (repealed) provided for the abolition of the elective office of public weigher in $ 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, acid counties Overt permitted to provide for the election of public weighers in addiiion to such departmental appointees. Agric. Code $$ 13.252, 13.253. There is nvw no express statutory provision fur abolishing the couuty elective office oP public weigher. Nevertheless, we believt that the Kerr County Commissioners Court has the authority to abolish that office. Unless there is a constitutional of statutory inhibition, the power to create an office includes the power to abolish it: See Hartnett v. City of l.ongvtew, 268 S.W. 786 (Tex. Civ. App.-- Texarkana 1925, no writ); Carver v. Wheeler County, 200 S.W. 537 (Tex. Civ, App.- Amarillo 1918, no writ); CUy of Palestbie v. Wesr, 37 S.W. 783 (Tex. Civ. App.--1896, no writ); see uls0 60 TEX. It1R. 3d Public Ofj4cers arul Employees $ 25 (1988). Aa Agriculture Code sect{on 13.253 gives the wmntissioners court discretion to crcatc the office, we believe the commissioners court also has authority to abolish it. You also ask about the procedures required far abolition. You suggest that abolitlon procedures must amply with the Texas Open Meetings Act and the federal Voting Rights Act and should include a public hearing. While Ova cannot attctnpt to formulate step-by-step procedures the commissioners court should follow, we agree that the commssioners court must consider and adopt the order abolishing the office in open session as required by section 2(a) of the Open Meetiugs Act, article 6252-17, V.T.C.S., and give notice and make a record of the proceedings as required by sections 3A and 3l3 of that act. The ansidetation and adoption of such order by the commissioners court would clearly be a "meeting" of a "goverttmentai body," within the meaning of that act. Icf p. 175 Honorable David Motley -Page 3 (DM- 3 5 ) $ 1. Wo find no oxceptions in the act which would permit the proceedings to he closed to the public. We would also advise that the incumbent, if any, in the office to be abolished be noticed of such proceadittgs and afforded an opportunity to attend and be heard. See ?'arraant Cotauy a Ashmore, 635 S.W.2d 417, 422-23 (Tex.), cen, 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 beard at proceeding to abolish the office). Finally, 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 rho federal Voting Rights Act of 1965, Act of Aug. 6, 19b5, Pub. ].,. No. 89-110, 1965 U.S. Code Cong, 8t Admin. News (79 Stat.) 439 (now at 42 U.S.C. $ 1973c), such that the abolition Of the office may only became effective upon the county's 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 rho District of Columbia. See 28 C.F.R. part 51 (procedures for submitting voting changes to Justice Department fur preclearance). The Karr County Commissioners Court has authority to abolish rho elective office of Kerr County Public Weigher. Very truly yours, p...( ~~~~ v'°l DAN MORALES Attorney General of Texas p. 176 ` Honorable David Mvtity -Page 4 (DM-351 WILT. PRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney Generai JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney Generai RENEA HICKS Spcciai Assistant Attorney General MADBLEINE B. JOHNSON Chair, Opinion Committee Prepared by William Wacker Assistant Attorney dcneral ORDF~ NO, 20558 OpIySIDF.RATION OFO~ ~OpUN7.'Y ~pIVE Op'FICE PUBLIC WEIGHER ~Pt~~~Y g, 1991 Vol S, page 409