AUSTIN – Texas Attorney General Ken Paxton on March 21 weighed in on the issue of whether elected constables and deputy constables may also serve as weight-enforcement officers.
Liberty County Attorney Matthew Poston requested the opinion from Paxton last fall when questions arose as to whether their constables could simultaneously serve under the sheriff in a dual-commissioned capacity and be able to perform tasks related to the duties of a weight-enforcement officer.
"Based on the assertions by the Texas Department of Public Safety that the Liberty County Constable and Deputy Constable of Precinct Two cannot become weight-enforcement officers under their commission as sheriff's deputies for the Liberty County Sheriff's Department, our officer respectfully requests the Texas Attorney General to review this question and determine whether an elected constable and his deputies may simultaneously serve under the sheriff in order to perform tasks related to the duties of a weight-enforcement officer," Poston's request states.
The legal question arose when it came to the Texas Transportation Code, which states that weight-enforcement officers have the exclusive authority to enforce weight regulation in any area of the state. The code lists those capable of carrying out those duties as a sheriff or a sheriff’s deputy. However, it does not permit constables or deputy constables to carry out those duties except in counties that meet certain requirements.
In his opinion, Paxton said, “Neither article XVI, section 40 of the (Texas) Constitution, nor any statute, nor the common-law doctrine of incompatibility precludes a constable or constable's deputy from simultaneously serving as a deputy sheriff."
He concluded that a deputy sheriff may serve as a weight-enforcement officer under Transportation Code, "even if that person simultaneously serves as a constable or deputy constable."
Paxton said deputy sheriffs serve at the direction and pleasure of the sheriff and "do not hold a public office for purposes of article XVI, section 40."