Untitled Texas Attorney General Opinion: KP-0245

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 11, 2019

The Honorable Matthew Poston Opinion No. KP-0245
Liberty County Attorney -
1923 Sam Houston Street, Suite 202 Re: Authority of county law enforcement to
Liberty, Texas 77575 enforce county weight regulations on county
roads (RQ-0251-KP) .

Dear Mr. Poston:

You seek an opinion on the "authority of county law enforcement officers to enforce county
weight limitations on county roads." 1 You tell us that the Liberty County (the "County") Precinct 2
Constable's Office applied for the Texas Department of Transportation's (the "Department")
vehicle weight enforcement training, which the Department denied claiming the constables and
·deputy constables did not qualify as "weight enforcement officers" under Transportation Code
section 621.401. See Request Letter at 2; see also TEX. TRAN SP. CODE § 621.401 (defining "weight
enforcement officer" to include a sheriff and deputy sheriff but excluding most constables and
deputy constables). You state that in response the County authorized the constables and deputy
constables to assume a second commission as sheriffs deputies and exercise weight enforcement
activities under the supervision of the sheriffs department. See Request Letter at 2; see also Tex.
Att'y Gen. Op. No. KP-0189 (2018) at 2, 4 (determining that Texas law does not preclude a
constable or deputy constable to simultaneously serve as a deputy sheriff). Despite our opiniol}
concluding Texas law allowed the practice, you inform us that the Department forbids the
certification of such dual-commissioned officers who are not full-time employees of the appointing
agency. 2 See Request Letter at 3.

In response to the Department's refusal, you ask three questions. Id. at 1. You first ask
whether a local law enforcement officer must be certified by the Department to enforce weight
restrictions on county roads under Transportation Code section 251 J 53. Id. You next ask whether
the Department can "revoke a county law enforcement officer's authorization granted by the
county commissioners court" under section 251.153. Id. Lastly, you ask whether the authorization
given by a commissioners court under section 251.153 is "identical to the 'authority' described by

1
Letter from Honorable Matthew Poston, Liberty Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I
(Sept. 10, 2018), https://www2.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2 You do not ask and we do not opine on the Department's authority to forbid the .certification of a deputy
sheriff who is not a full-time employee of the sheriffs office. See TEX. TRANSP. CODE§ 621.40 I.
The Honorable Matthew Poston - Page 2 (KP-0245)

... Transportation Code [subsection] 621.402(e). " Id. Your questions implicate several provisions
of the Transportation Code. ,
)

The Transportation Code contains the County Road and Bridge Act, which grants counties
authority over county roads. 3 See generally TEX. TRANSP. CODE §§ 251.001-.161. Subsection
251.153(a) authorizes a county commissioners court to "establish load limits for any county road
or bridge" as prescribed by Transportation Code section 621.301. Id. § 251.153(a); see also id.
§ 621.301(a) (providing authority for county to establish load limits for county roads or bridges
"only with the concurrence of the Texas Department of Transportation"). Relevant here,
subsection 251.153(b) permits a county commissioners court to "authorize a county traffic officer,
sheriff, deputy sheriff, constable, or deputy constable to weigh a vehicle to ascertain whether the
vehicle's load exceeds the limit prescribed by the commissioners court." Id. § 251.153(b).

The other provisions implicated by your questions are found in chapter 621 of the
Transportation Code, which grants the Department authority over vehicle weight and size.
Subsection 621.402(e)(1) requires the Department to establish rules for uniform weighing
procedures for the accurate weighing of motor y~hicles. Id. § 621.402( e)( 1). Relevant here, the
Department's rule adopted under subsection 621.402(e)( 1) requires, in part, all weight enforcement
officers to attend and successfully complete weight enforcement training provided by the
Department and to maintain certification by fulfilling continuing education requirements. See 37
TEX. ADMIN. CODE § 4.56(b) (Tex. Dep't. of Pub. Safety, "Uniform Weighing Procedures for
Weight Enforcement Officers"). Section 621.401 defines a "weight enforcement officer" to
include those constables or deputy constables "designated under Section 621.4015." TEX. TRAN SP.
CODE§ 621.401; see id. § 621.4015(a) (limiting by population bracket which counties' constables
or deputy constables can be weight enforcement officers). This office recognized that
"[c]onstables and deputy constables not mentioned in section 621.401 are not authorized by that
sectjon to be weight enforcement officers." Tex. Att'y Gen. Op. No. KP-0189 (2018) at 3.
Transportation Code subsection 621.402(e)(2)(B) authorizes the Department to "revoke or rescind
the authority of ... weight enforcement officers of a ... constable's office that fails to comply
with those rules." Id. § 621.402(e)(2)(B); see also 37 TEX. ADMIN. CODE§ 4.56(t)(2).

Your third question about the nature of the "authority" granted in subsections 251.153(b)
and 621.402(e) is fundamental to your other questions, so we address it first. You suggest that
reconciling these provisions requires one to segregate the authority granted to a local law
enforcement officer by a commissioners court under chapter 251 from the authority which the
Department may revoke under chapter 621, resulting in two separate weight enforcement systems:
"a county-wide enforcement authority limited to enforcing county regulations on county roads
[and] a state-wide enforcement authority that expansively gives authority to state and local law
enforcement the ability to enforce state and local regulations." Request Letter at 4-5. Judicial and
attorney general opinions examining different provisions in the County Road and Bridge Act

3
The Legislature codified article 6702-1 of the Revised Civil Statutes, also known as the County Road and
Bridge Act, in the Transportation Code in 1995. See Act of May I, 1995, 74th Leg., R.S., ch. 165, § I, sec.251.001-
.161 ( codifying nonsubstantive revision), § 24 (repealer), 1995 Tex. Gen. Laws I 025, 1150-61, 1871.
The Honorable Matthew Poston - Page 3 (KP-0245)

against provisions in chapter "621 suggest otherwise. These opinions construe chapter 251 and
chapter 621 together, implicitly recognizing that they are part of one statewide framework.

In Scurlock Permian Corp. v. Brazos County, a Texas court of appeals determined that the
specific provisions of chapter 621 are exceptions to, or qualifications to, the more general
provisions in the County Road and Bridge Act. See 869 S.W.2d 478,486 (Tex. App.-Houston
[1st Dist.] 1993, writ denied). The court considered provisions in the County Road and Bridge
Act authorizing a county to establish load limits on any road or bridge against the State's authority
under Revised Civil Statute article 6701d-11-the predecessor statute to Transportation Code
section 621.101-to regulate the size and weight of vehicles on Texas highways. 4 See id. at 481.
At issue was Brazos County's traffic regulations imposing a weight limit on vehicles traveling on
its county roads and providing for a county permit system for vehicles exceeding the established
weight. See id. at 482. After legislative amendments to article 6701d-11 established a statewide
permitting system, Scurlock, a crude oil marketing and oil field service company, purchased a
statewide permit and sought to enjoin Brazos County from requiring county permits, arguing that
the amendments to article 6701 d-11 preempted Brazos County's power to regulate vehicle weight.
See id. The trial court found that article 6701d-ll irreconcilably conflicted with the County Road
and Bridge Act's grant of authority to counties to regulate overweight vehicles. See id.

The court of appeals noted that the Legislature is presumed to have adopted its amendments
. regarding the statewide permitting system with knowledge of the County Road and Bridge Act.
See id. at 486. The court also recognized the two statutes concerned the same subject matter and
construed them to give meaning to both. See id. The court stated that "[a] special or specific act
is properly regarded as an exception to, or qualification of, a general law on the same subject
previously enacted." Id. The court observed that the County Road and Bridge Act deals generally
with "a county's authority to regulate traffic on county roads," whereas article 6701d-11
specifically authorizes "the state to issue permits for overweight vehicles, and grants counties
limited power to issue [such] permits." Id. Thus, the court reconciled the two statutes finding that
the "specific provisions of article 6701d-ll are an exception or qualification to the general
provisions of the County Road and Bridge Act; and that article 6701d-11 prevails over the County
Road and Bridge Act." Id.

Similarly, previous attorney general opinions considering analogous provisions under the
County Road and Bridge Act against chapter 621 utilize the same analysis, construing them
together as part of one framework. See Tex. Att'y Gen. Op. Nos. GA-0509 (2007) at 1-2
(construing county's authority to set road weight limits in subsection 251.153(a) against
Depart~ent' s authority to set maximum gross weights in section 621.102 and concluding that a
county may not require a permit for an overweight vehicle when the operator has a permit from
the Department), GA-0088 (2003) at 7 ("A commissioners court may not impose additional
regulations with regard to weight on trucks granted an overweight certificate by the . . .
Department .... "), JC-0517 (2002) at 3 ("A county has no authority to permit or to impose
additional requirements on a vehicle that has a permit from the Department ...."). Like the

4
See supra note 3.
The Honorable Matthew Poston - Page 4 (KP-0245)

Scurlock opinion, these attorney general opinions recognize a statewide weight enforcement
framework instead of isolated provisions granting separate authorities.

These analogous opinions direct an affirmative answer to your third question. A court
would likely conclude that one statewide weight enforcement framework exists, and the authority
granted to a constable under subsection 251.153(b) is identical to the authority described by
subsection 621.402(e).

With regard to your first question about the required certification of a local law
enforcement officer, Transportation Code sections 251.153 and 621.402 concern the same subject
matter and should be construed to give meaning to both. See Scurlock, 869 S.W.2d at 486.
Following the lead of the Scurlock opinion, we construe subsection 621.402(e)(l) and the rule
implementing it as a qualification to subsection 251.153(b), thereby preserving the meaning of
both provisions. While the certification requirement is in the Department's rule, it is a rule
mandated by and in harmony with subsection 621.402(e)(l). See generally R.R. Comm 'n v. Lone
Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992) ("The determining factor ... whether ... a
particular administrative agency has exceeded its_rule-making powers is that the rule's provisions
must be in harmony with the general objectives of the Act."). Thus, a local law enforcement
officer, by the authority granted by a commissioners court, may enforce weight restrictions but
only if he or she is a certified weight enforcement officer. Accordingly, a court would likely
conclude that a local law enforcement officer such as a constable or deputy constable must be
·certified by the Department to enforce weight restrictions, even if he or she enforces those
restrictions only on county roads.

With regard to your second question about the Department's authority to revoke a constable
or deputy constable's authority, we likewise construe subsection 621.402(e)(2)(B) as an exception
to, or qualification of, the general authority granted in subsection 251.153(b). So construing the
provisions, a county may authorize its constables and deputy constables to weigh vehicles subject
to the Department's authority to revoke or rescind the constable or deputy constable's appointment
as allowed by subsection 621.402(e)(2)(B). Thus, a court would likely conclude that the
Department may revoke a constable's authorization to weigh vehicles granted by a county
commissioners court under subsection 251.153(b ).
The Honorable Matthew Poston - Page 5 (KP-0245)

SUMMARY

Following analogous judicial and attorney general opinions,
a court would likely conclude that one statewide weight
enforcement framework exists under Transportation Code chapters
621 and 251. Thus, the authority granted to a constable or deputy
constable under Transportation Code section 251.153 is identical to
· the authority described by Transportation Code section 621.402.

Construing Transportation Code subsection 621.402(e)( 1),
and the Department of Transportation's rule implementing it as a
qualification to Transportation Code subsection251.153(b), a court
would likely conclude that a local law enforcement officer such as a
constable or deputy constable must be certified by the Department
to enforce weight restrictions, even if he or she enforces those
restrictions only on county roads.

Similarly, construing Transportation Code subsection
621.402(e)(2)(B) ,as a qualification to Transportation Code
subsection 25 l.153(b), a court would likely conclude that the
Department may revoke a constable's authorization to weigh
vehicles granted by a county commissioners court.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee