Case Information
*1 r\ - ‘-
ITORNEY GENERAL OF TEXAS
Hon. Jerry Sadler, Commissioner Opinion No. O-3186 Hon. Olin Culberson, Commissioner Re: Was the action of Railroad Commission of Texas Commissioners Smith and Aust.in, Texas Sadler in placing their under the word
l’DeniedVt on a motion for rehearing a final order denying such motion under t,he facts set our below? Gentlemen:
We have your letter of February 19, 1941, submitting the following facts: 1940, the Commission granted R. Newnham for special permit
“On December 16, the application of M.
to drill his Well No. 4 on a certain tract in Gregg County, Texas.
“On December 31, 1940, Jones-O’Brien, Inc., and Iotex Oil Corporation filed a motion for rehearing . _ in said cause and upon the filing of such motion for rehearing the words “Behearinq: ‘Granted--Denied’ was written at the bottom of such motion for rehearing, it being a practice of the Commission to put such words on application and motions for rehearing before presentation to the Commissioners.
“On the 31st day of December, 1940, Commissioners Smith and Sadler considered such motion for rehearing and wrote their underneath the word ‘Denied’, and pursuant to such action a formal order was pre- pared dated the 31st day of December, 1940, provided that such motion for rehearing should be denied. This formal order was signed only by Commissioner Sadler. “On January 5, 1941, Commissioner Thompson wrote on the bottom of such formal order the following: “‘This order was never accomplished due to not having been signed by two commissioners. Thus the mo- I vote for granting the re- is still pending. hearing. --E.O.T. January 5, 1941.’ *2 Htin. Olin Culberson, page 2
“On January 10, 1941, Commissioner Culberson wrote the bottom of such formal order:
“‘1 concur in above statement .--0.C.c “Following the action by Commissioners Culber- son and Thompson, Commissioner Sadler wrote beneath his signature on the formal order as follows:
“‘This motion was denied by two commissioners and it is my contention that order signed by Com- missioners Thompson and Culberson is void. J.S.’
“By formal order signed by Commissioners Thompson and Culberson dated January 10, 1941, a motion for rehearing of Jones-O’Brien and Iotex mentioned above was attempted to be granted.
“In further explanation of this matter, we wish to advise that prior to January 2, 1941 it had been the custom and practice of the CornmIssion for collect wires to be sent to the successful party
if as and when a majority of the Commission- ers had !nitialed the examiner’s memorandum or other and for the formal order to be prepared at its sub- instrument showing what the decision had been, sequent date; and in the instant case the formal order was then dated back and given the same date that a majority of the Commissioners
memorandum or motion being acted upon.”
Under the above facts taken in full from your letter, you request our opinion upon the following question:
“Please advise us whether the action of Com- missioners Smith and Sadler in passing upon the Jones-O’Brien, Inc. and Iotex Oil Cor oration mo- for rehearing on December 31, 1 0 and reach- % ing the conclusion ing and evidencing to deny such motion or rehear-
their decision by initialing same at the bottom thereof under the word “Denied’ was an official action by the Commission and amounted to a denial of the motion for rehearing.”
The Railroad Commission has been entrusted with the administration of our conservation laws and in the performance powers. Gulf Land Com- of its duties exercises quasi judicial pany vs. Atlantic Refining Company, 131 S.W.(2) 73.
Hon. Jerry Sadler
This Department has previously held that after a de- cision has lawfully been made by the Commission that the sign- ing of the order by the individual
commissioner becomes a mere mechanical or ministerial act which may be delegated by the commissioner to other persons. (See our opinion No. O-1943 attached hereto)
In Mechem, on Public Offices and Officers, at page 370, the rule is stated as follows:
“Para. 568. Mechanical or ministerial duties may be delegated .--Where, however, the question arises in regard to an act which is of a purely me- chanical, ministerial or executive nature, a differ- ent rule applies. It can ordinarily make no differ- ence to any one by whom the mere physical act is performed when its performance has been guided by the judgment or discretion of the person chosen.
The rule therefore, is that the performance of du- ties of this nature may, unless expressly prohibited, be properly delegated to another.”
Where, however, the law expressly requires act to be performed by the officer in person it can not, though ministerial, be delegated to another.”
Throop, on Public Officers, at page 511, defines a ministerial act as follows:
“A ministerial act may perhaps be defined to be one, which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done.”
The rule as applied to our courts seems to be well established to the effect that after the court has exercised judicial discretion, the mere physical or mechanical act of signing the draft of judgment or the minutes of the court for the term at which the judgment was entered is not necessary to render the judgment valid. The same rule has been applied courts which have not been entered to orders of commissioners’ upon the minutes of the court, and it has been held that the action of the court could be proved by circumstances and pa- (See Weaver vs. Commissioners1 Court, Nago - role evidence. (2) 170; Mecum VS. Ford, 252 S-W. 6 91) doches County, 146 S.W. In the case of Coleman vs. Zapp, et al., 151 S-W.
1040, at page 1041 thereof, Judge Phillips speaking for the
c--. -\ -. Supreme Court of Texas, stated the law as follows:
"(1) The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares decision of the law upon the matters at issue.
Its entry is the ministerial act by which an en- ~during evidence of the judicial act is afforded.
"(2) The failure of the minute entry to cor- reotly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwlth- Freeman on Judg- standing its imperfect record.
ments, 8 38.‘*
In applying the.foregoing statement of the law to the fact situation shown in your letter, we.find
(a) That the ConmisSion itself considered its order entered as of the day the memorandum was initialed as evidenced by the fact that your letter states a collect wire was sent to the successful party setting out the decision made;
(b) That a majority of the Commission concurred in the decision as evidenced by the fact that Commissioners Sadler and Smith placed their under the word "denied*' on the DlOtiOllj and
(c) That it had long been a practice of the Commis- sion to have formal orders prepared subsequent to the date the decision was made and dated back to the time the Commission the motion acted upon.
We think that this situation clearly demonstrates that the Commission~s decision was made and its final order en- tered the 31st day of December, 1940, when Commissioners Smith and Sadler signed their under the word "denied" on the motion, and that the subsequent preparation of a formal order was merely a mechanical or ministerial act which could properly be delegated to others to perform.
APPROVED FEB 27, 1941 Yours very truly ATTORNEY GENERAL OF TEXAS /s/ Gerald C. Manu ATTORNEY GENERAL OFTEXAS By /s/ Ed Roy Simmons APPROVED: OPINION COMMITTEE Ed Roy Simmons, Assistant BY: BUB, CHAIRMAN
ERSrewiwb
&cl.