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