Case Information

*1 OF TEXAS ia, - AUB- GROVER SELLERS -N

*-RNEYG%~NERAr.

Honorable T. K. Wilkinson

County Auditor

Hill Couilty Hlllsboro, Texas Dear Sir: Opinion No. O-6423 .-

Re: Is it mandatory that the county tilerk ojP one of his deputies attend all meeting3 of the com- missioners' cou?.% aS ex officlb clerk thereof, and another ques- tion.

owe ackhowledge receipt of your reijuest for an opFnlon on the above matters, said request being as follows:

"1 . Is It mandatory that the County Clerk or one of his deuutltis att6nd all meetings of the Commissioners Court as ex officio Clerk thereof? "2 D Is It mandatory that the County Clerk attest the minutes of,the Cominissloners Court g neFther the County Clerk nor any of his dtiputles were Dresent at the session of the Court and have no Dersonal knowledae of the DPOCeedinRS Included Fn the minutes?

"3. In the event the'county Clerk is not in attendance at the meetings of the Commlssloiiers Court as Ex offlclo Clerk, 'and orders are passed"and other business transacted and the County Clerk Fails to attest the minutes of the Court, will such fail- ure invalidate the orders and proceedings of the Court?" Article 2345 of Vernon's Annotated Civil Statutes is as follows:

"The county clerk shall b6 ex-offIcio"clerk of the.'commlssioner& court; and he' shall attend upon eisch term bf said commissioners court; pre- serve and keep all books,-papers;"records~and effects belonging theret'o, Fsaue all notices, writs and process necessary for the proper execu- tlon of the powers and duties of the commissioners *2 Honorable T. K. Wilkinson, page 2 o-6423

court, and perform all such other duties as may be prescribed by law."

Article 2349 of said statutes is as follows:

"The court shall require the county clerk to keep suitable books in which shall be recorded the procei+dlngs of each term of the coutit, which record shall be read and signed after each term by the county judge, or the member preslaing and attested by the clerk. The clerk shall also re- cord all authorized proceedings of the court '~ between terms; and such record shall be read and signed on the first dciy of the term next after such proceedings occurred."

The general rules governing the keeping of the records of the commliisloners court are found in 11 Tex.LJur., Sections and 42, pages 570-572 In the following language:

'~ "Records of Proceedings - Authbnticatlon - Se&l - The Comml'ssloneri Court is'tiequired to

record upon suitable-'books the procegdlngs of

each term of court; and the minutes are required to be read over and slgni%d bji the county judge 6~ the member presiding and attested by the

clerk. All authority ejrercised 'by the court

mtit be evid‘enctid in that mannei‘. It lsi not necessary that a single book shall contain the i%cord of the court's prbceedings; vtirlous books Ming be kept Zn whlch‘proceedlngs relating to

particular matters may be proberly recorded;

Each book kept and used fork this purpose 1s; within the meaning of the law, a minute-book, and the entries therein made are minutes.

"Commissioners' courts are courts of'reaord, and they mst &uthenticate all official acts, if such authentication Is required, by a seal pre- scribed by statute.

"Entry of Orders - The requirement that every official act of the commissioners' court shall be evidenced by an order entered upon the mlnut& of the cotirt has been modified to the extentthat where an order Is shown to have been actually m&de by the court, and has been acted upon, the omlsslon of the clerk to record the order will not render It or the gets done in pursuance thereof void. Al- though an order of the cowissloners' court has *3 .- .

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Honorable T. K. Wilkinson, page

never been entered upon the court's mlnu.tes, it may nevertheless be proved by par'bl evidence and given effect. The rule Is necessarily different where an okder Is required by the termsof a special' statute to be entered 'of record, or where a general statute declares that such oriler shall be bold unless recorded. It is held that the" evidence to establish a contract must be contained in the written proceedings of the court. However, if the court falls to place an order upon the minutes at the tlme~when it is made, as required by law, the order may'be entered.'upon the minutes at a subsequent regular or special session." In the case of Landa vs. State et al, 131 S;W. ~321',~ Wit

dismissed, the'~San Antonlo'Court of Civil~~Appeals had unGer~%on- slderatlon a matter where complaint waa made because'~extracts from the minutes of the commissioners' court were read In~evl- dence without first ahowlng that such mliiutes~had~ beensigned. by the judge and attested by the clerk, as provided for by'Art. 2349, but the Court of Civil Appeals overruled sucil contention on the ground that the provisions of said article are directory and not mandatory.

The latest announcement of this ruleXs founds Inthe case of Weaver vs; Commissioners' Court of Nacogdbdhes~.Cauhty,~ 146 S,W. (26) 170, wherein-the Commlsslon of Appeals was pass; .' lng upbn the contention that a~certaln'order signed bgthe“c-buiity judge and three commissioners was' the action' of said. offlclals personally and not an official order, ‘and that ~ltshoula have been entered upon the minutes of the commissioners1 court. In overruling such contentions, the court held as ~follows: .~~

"It is well settled that.'an order of the com- missioners' court actually paased~ IS not vold.be- cause not“entered upon-the"minutes of the court, and the fact that It was made can be shown by parol evidence:' Mecom v; Ford, 113 Tex. IOg, 252 sow. 491. See also Whltaker v. Dlllax-d, 81 Tex. 359, 16 S.W. 1084: If the action of the court -. can be proven'by parol evidence, certainly It can be proven by circumstances." .~

We quote and adopt the following from our'~opl.nl.on No. o-6318, which had to do with a somewhat similar matter:

"It Is uniformly held that' the Commissioners' Court is a court of record. Gano v. Palo Pinto County, 8 S.W. 634;'Bradford v. Moseley, 223 S.W. 171. Article 2349 above quoted necessarily makes

Honorable T. K. Wilkinson, page 4

it so. Any court whose proceedings are required by law to be recorded In minutes or books kept for that purpose is a court of record.

"The word 'ptioceedlngs' is used here In Its ordinary sense, and means the official functions of the court. Such functions are'not limited to any particular class of functlons;.but on the

contrary they Include every official act done by the members of the court In tile course of their sitting .^' This would Include a pertinent mo$Fon m&de by any member of the court In the course of passing a besolutloii or--order whatsoevef. Such motion Is an lntegral‘part of the resolution or order. Furthermore, a motion made by a'member of the court duly"ln~'sesslon ‘is it&elf"a 'ptioceed: lng' in the regular and ordinary way, and; we

think, should be entei%d upon the minutes, llhether such inotion‘~receives a iiecdnd or not. In parll- amenttiry usage in such-a case the motion Xs lost for want of a second, and Is thus effectually disposed of. ..~

"A good reason 1s easily assigned, if reason for the statute Vere.'required, whyy‘&uch proceed- ings should be made a matter of record. .'The CommissFoners"Coui% is"& cburt of-'general jurls- diction In this State, &id as wee have seeQ 1.9 a court of-record. It i's a court of tremendous lmportaiice'; since it h&s jurisdiction over the" county affairs of the county-; The public hai a deep concern with the .ofPlclal-'acts of such court, ahd It5 probeedlngs therefore are of such lmpor- tance as that~an accurtite record should be kept for the general Information of the public concerned.

Motieover; while it sometimes-happens that the fall- ure'to make a minute of certain proceedihgs'ls not Patal to the validity of.thii same-.(See Laiida v.

State, 131 S.W. (2d) 321,) and that the validity of an.otider properly ptissed la susceptible of proof and the order may be proved by oral testl- mony Mecom v. Ford, 252 S.W. 491), nevertheless, t the statutory requirement for duly rbcorded

m'lnutes, attested by the ptioper offichrs, Is the safer way, and matters of such importance should not be left to the difficult and sometimes un- certain method of proof dehors the record."

It has been held that the provisions of th8 .+tatute~s hereinabove referred to making It the duty of the county clerk,

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Honorable T. K. Wilkinson, page

either in person or by deputy, to record the proceedings bf each terin of the commissioneri?.' court are directory only and not mandatory, and that the failure of the cbunty clerk of his aeputy to perform such services will nbt invalidate the orders and proceedings of the commissioners' court lnsbfar as they affect pub133 or private rights. However, It was not intended that the statutory provisions requiring the-.county ~clerk tom attend'upon and record the proceedxngs of each term of the com- missloner's-court should be disregarded. Art. 5970 of V.A.C.S. provides that a county clerk may be removed from offId@ by the judge of the district court'for incompetency or offlc,ial mls- conduct; "official misconduct" being defined by Art. 5973 of said statute as follows;

"By 'official misconduct' as used h&rein with reference to county officers, Is meant any unlaw- ful behavior in relation~~t6 the~dutles of his office, wllful in its character, bf any officeti Intrusted in any manner with the admliilstr~tlon of justi&, or the .execution of the laws; ana-.

includes any wilful OF corruDt Ptillutie, re=al or neglect of an officer to perform tiny duty

enjoined on him by law. ' (Emphasis ours)

We trust that this aatlsfactorlly answers your Inquiry. Yours very truly, ATTORNEYGENERALOFTEXAS By s/JEis. W. Bassett Jas. W. Bassett Assistant JWB :LJ :wc

APPROVEI) MAY 12, 1945

s/Carlos C. Ashley

FIRST ASSISTANT

ATTORNEY GENERAL

Approved Opinion Commltt~ee By s/GWB Chairman