Untitled Texas Attorney General Opinion

THEATTORNEYGENERAL OP-XAS September 20, 1960 Honorable Charles J. Lieck, Jr, Opinion No.WW-942 Criminal District Attorney Rexar County Courthouse Re: Validity of an order of San Antonio, Texas the Commissioners' Court providing that voting abstentions shall be re- corded in the Minutes of the Commissioners' Court Dear Mr. Lieck: as negative votes. You have requested an opinion on the validity of an order of the Commissioners1 Court of Bexar County dated August 1, 1960, reading as follows: "ORDER ADOPTING A RULE OF PROCEDURE OF COMMISSIONERS' COURT ON VOTING. "A motion .was presented by County Com- missioner Sam Jorrie, duly seconded by County Commissioner A. J. Ploch, which motion was voted as follows: Commissioners Pena, Jorrie and Ploch voting 'Aye': Commissioner Wurzbach and Judge Anderson voting 'Nay': It is ordered by the Court that the following be adopted as a rule of procedure of Commissioners' Court: 'In any case where any member of Commissionersf Court (County Judge or County Commissioner) abstains from vot- ing or fails to vote when present, the minutes of Commissioners' Court shall hereafter be marked to indicate that the member of Commissioners' Court who abstained or failed to vote when pre- sent, voted 'No.'" The Commissioners' Court is a court of record and speaks through its minutes. Maples v. Henderson County, 259 S.W.2d 264 (Civ.App. 1953), err. ref. n.r.e. Article 2349, Revised Civil Statutes of Texas, 1925, requires the County Clerk to keep a record of the proceedings of the Commissioners' Court in a suitable book kept for that purpose. Brown, et al v. Reese, 67 Tex. 318, 3 S.W.292 (1887). In Drown v. Reese, supra, the court held that the best evi- dence of a proceeding of the Commissioners' Court is "either the record itself or a certified copy as provided for by Honorable Charles J. Lieck, Jr. Page '2 (WW-942) statute under the hand and seal of the Clerk." Thus, it is our opinion that it is the mandatory duty of the County Clerk under the provisions of Article 2349 to keep an accurate record of the proceedings of the Commissioners' Court. The order quoted above would require the Clerk to record a "No" vote in those instances where a member of the Commission- ers' Court abstains from voting, rather than casting a "No" vote. If the Clerk abided by the order under consideration, the min- utes of a Commissioners' Court would reflect such erroneous matter. You are, therefore, advised that insofar as the order of the Commissioners' Court referred to in your request requires the Clerk of the Commissioners' Court to record erroneous matter in the Minutes of the Commissioners' Court, such order is in- valid. SUMMARY ----_-- It is the duty of the County Clerk to keep an accurate record of the proceedings of the Commissioners' Court in a suitable book kept for that purpose and any order of the Commissioners' Court which would require the County Clerk to record a voting,absten- tion as a "No" vote is invalid to the extent that it requires the County Clerk to violate such mandatory duty. Very truly yours, WILL WILSON Attorney General of Texas JR:ms:zt /lcLwd By, FJohn Reeves Assistant APPROVED: OPINION COMMITTEE w. v. Gwpert, Chairman C. Dean Davis Wm. R. Hemphill Iola Wilcox REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore