ax TEXAS
~AUEI-S-IN.
TEXAS
April 7, 1950
Hon. Wm. L. Tayloti opinion Ho. V-1038.
Prosecuting Attorney
Rarrlson county Re: Autirlty of the Comml~~lon-
Harsball,Texas ers' Court to determine the
matel'ial to be recorded In
the minutes of its lPeetingl3
Dear Sir: and related matters.
You have requested an opinion on the following
ql.leet10nsr
"(1) Cmi the Commissioners1 Court by a
majority vote refuse to Include certain occur-
renaes at a meeting when the occurrences un-
d questionably happenedwhlle themeetingwas in
progress?
'(2) Can the court, after holding special
meetings without notifying the County Clerk,
or any of his deputies, and vithout their
bowledge, compel the clerk, who nmt; attest
the ndnu$es, to reoord said minutes?
The faats'aubn&tted by you with reference to
your first question are substantially as follows:
At a meeting of the CommIssionera Court
minutes of a prior meeting were presented to
the Court for approval; These minutes con-
tained certain objectltis of one of the Corn--
mfseioners to an order passed by the Cpmmis-
aLoners Court at such meeting. The niajority
of the Court voted to exclude these objec-
t1cma.
Se&Ion 18 of Article V of the Constitution of
Texas provides In parts
,"Each county shall In like manner be dl-
vlded into fourcoaanlasionerst precincts ln
4 each of whlah there shall be elected by the
qualified voters thereof one county com~@s-
sloner, who shall hold his office for two
. .
Hon. Wm. L. Taylor, page 2 (V-1038)
years and until hls successor aball be elect-
ed and qualified. The aounty comissloners
so chosen, with the county judge, as presid-
ing officer, shall caupose the county doQIBis-
sloners court, which shall exercise such pow-
ers and jurlsdlctlon over all county busi-
Peas, a8 is conferred by this Conetitutlon
and the laws of this State, or as may be here-
after prescribed.”
Artiolea 2345 and 2349, V.C.S., provider
*Art. 2345 . . .
‘The county clerk shall be ex-officio
olerk of the oommlseloners court; and he shall
attend upon each tern of said comeissloners
court; preserve and keep all books, papem,
records and effects belonging thereto, issue
all notices, write and proaesa necessary for
the proper execution OS the powers and duties
0r the ocemlssionera court, and perform all
au& other duties as may be prescplbed by law.’
#Art. 2349 . . .
"The court shall require the county clerk
to keep suitable book6 in whioh shall be re-
corded the prooeedlnge of eaah term of the
oourt; which record shall be read and signed
after eaoh term by the county judge, or the
member presiding and.atteetetl by the olerk;
The olerk shall also recdrd all authorl%ed
prooeedlngs of the court between term; and
euoh record shall be read and signed on the
Sirat day of the term next after such proceed-
ings occurred..”
In construing the above quoted statutory provl-
aions It was held In Attorney General’;8 Opinion no.
04318, dated banuary 5, 1945, thatt
“It Is uniformly held that the C&s-
elonsral Court Is a court of record. oano v.
Palo Pinto County, 8 S.W. 634; Bradford v.
Yloseley, 223 S.W. 171. Artiole 2349 above
quoted neoeasarllg makes It SO. Any cou&
whose proceedings are required by law to be
Hon. Um. L. Taylor, page 3 (V-1038)
recorded,+ minutes or books kept for that
purpose $8 a court of record..
'The word 'proceedings' is used her&.
.ln Its ordinary sense, and means the offlc‘ial
functions of the court; Such functicms are
not Umlted to any particular olasa of func-
tions, but on the contrary they inalude every
official act done by the members of the court
ip thecourse of their sitting. This would
Include a pertinent motion made by any member
of the court In the course of pasalng a,reao-
lutlon or order whatsoever. Such motion is
anintegral part of the resolution or order.
Rwthemnore, a motion made by a member of the
court duly in session is itself a 'proceedd-.
lng' in the regular and ordinary way, and, we
think, should be entered upon the minutes,
whether such motion receives a second or not.
.In parl.l.amentary usage in suoh a case the mo-
tlan la lostfor want of a aeoond, and Is
thus effectually disposed of.
“A good reason is easily asSIgned, ii
reason for the statute were required, why
such prooeedings should be made a matter of
record. The CtnnmlaalonerslCourt Is a oourt
of general juriedictlon fn this State, end
as we have seen, Is a court of record. It is
a cou& of tremendoue~ Importance, sinas it
haa jurladlction over the county affalre of
the county. The public has a deep concern
vith the official acts of au& court, and Its
proceeding8 therefore are of such importance
as that an aocurate record should be kept for
the general Information of the public concern-
ed; Moreover, while it sometimes happens that
the failure to make a minute of certain pro-
ceedings is not fatal to the validity of the
same (See Lands v., State, 131,S.W. (2) 321),,~
and that the validity of an order properly
passed is susceptible of proof, and the order
ma9 be.proved oral teatlmany (Met= v.
Ford, 252 S.W. 7 gl), nevertheless, the stat-
utory requirement for duly recorded minutes,
attested by the proper officers, is the Saf-
er way, and matters of suoh lmportanoe should
not be left to the difficult and saPetlmes
uncertain method of proof dehors the record.
. .
Hon. U~I. L. Taylor, page 4 (V-1038)
"It does not follow from what we have
said that ZWasbnS given by a mmm.l.ssloner in
vot*..upon a proposlt lmltt d t th
court should b e entereZn%e ml&tei --e
hey are not within the reaulrements of the
statute -- for they constitute no mart of
%he court pr,roaeedinRe. as do the motion. the
vote and the order.” (&tphasls supplied)
In view of the foregoing it Is our opinion in
answer to your first question that the Coaunlssloaersl
Court oaanot remove from the minutes of the meeting of
the Ccenalasioners' Court those occurrences whioh consti-
tute a part of the 'court proceedIngsa such as motions
presented to the oourt, votes of the members of the Com-
mlssionars' Court on the motions, and orders passed.
The Comml.wloners* Court may however exolude from Its
minutes an9 dztscusslon made by t$e members 3.n favor 0s
or against an9 motion beiore the oourt~.
Your seco&l question involves "some speaial
meet-8 which the court held without notifying the
clerk, or an9 of hls deputies, and without the knowledge d
0s the alerk or any 0s his deputies.*
The general rulesgoverning the Pecorda of the
Oommiseloners~Court are well stated in 11 Texi Jtu?. 570~,
572, Counties, Se&s. 41 and 42, as follows:
"The c~aslonere~ court la required to
record upon eultable books the prooeedlngs of
each term 0s oourt; and the minutes are re-
qulred to be read over and signed by $he
county judge or the member presiding and at-
tested by the clerk. All authority exerclsed
by the court must be evidenced In that manner.
.It Is not aecessm that a single book shall
contain the record of the court's proceedings;
various books may be kept In which proceedings
relating to particular matters ma9 be properly
recorded. Each book kept and wed for this
p\urpose is, within the meaningrof the law, a
cut;;book, and the entHe therein made aPe
.
'Ca3taalaslaners~ aourts are courts 0s re-
cord, and they must authentloate all 0rriOiai
acts, if such authentloatlon Is required, by
a seal presorlbed by statute.* d
. .
Hon. Wm. L. Taylor, page 5 P-1038)
“rhe requirement that every official act
of the ccmmlaaloaeral court shall be etidenoed
by au order entered upon the ainutes of the
court has been modified to the extent that
where an order is shown to have been actally
made by the court, and has been sated upon,
the omlsslon of the clerk to record the order
till aot,render It or the acts done in pursu-
am8 thereof void. Although an order 0s the
conmxlealonera’ court has nevar been entered
upon the court’s minntes, It may nevertheless
be proved by par01 evidence and given effect.
The rule ls.aecessar%ly different where,aa
,order is required by the terms 0s a special
statute to be mtered of record, or where a
,general statute declare8 that such order shall
,be void unless recorded. It is beid, that the
evidenae to eetabllsh a eontract mast be ooa-
talnedIQ the written prooeedings of the
court. However, If the oouct Salle to place
amorder npon the minutes at the fiime when
it la made~as~requirea by law, the order mm9
be entered upon the minutes.at a aubsaquent
mgu&ar or epeqlal session.
In Attoz6e9Qenera11s opiniti lo. O-6483, dat-
ed Ma9 12, 1945, It is statedt
“It ha8 beea held that the pr0Vit310~~ Of
the statutes hereinabove referred to maklmg
it the duty of the aounty clerk, e1ther.i.a per-
809 or by aeputy,~to record the proceedings
of each term of the oontulssionersl oourt are
dlrectoz-9cml9 ana not mapdatorp, and that
the’failare of the oouuty olerk or his dep-
uty to performsuch aervlcea will not luvali-
date the ~orderaaad proceedlngdof the com-
missioners * oourt insofar aa they afreat sub-
As pointed out above, “it was aot Intended that
the etatutory provision6 requiring the couuty clerk to
attend upon aad reoord the proceedings of each $erm of
the Gammlsslonersg Court should be disregarded. In the
. .
Hon. Uat; L. Taylor, page 6 (V-1038)
lnataat ease,, however, the aortae alerk was not dlere-
gardlng such statutory provlel~ns for the elelrlr was not
notlfled~of the *s+eial meeting,!! uuder the fasts aub-
mlfted.
It la’t&iea ia 4 Uoras~ and Phrases (Penn. J3d.j
775, that the.term ‘attestation’, implies ths presenoe of
some person who etanda by but ,la not a party tag the
transautloa. The .term squattest” ie defined ti ~--43iJA.
691, Attert, as Sollmmt, ;, i
"The .term cases fromthe .two Latin words
*aa’ and %estarl* , which mean literally to
witness to or to bear vitnese; and It has been
said that the notion zieeoalated wlth ths word,
both IQ ,lts teehalos and nonteohmioal llaej is
.~.t,of observation and eubs~rlptlon; and that,
somat3mee aharacterlsed as not;.hawlag
a surf“f”olently definitealgalfioatioa, yet+it
nafrrrauy ttbs 00808 0s iwforoe from ctttttext
an&purposei although ‘attest’ Inherently .beT
t6keas~ q eoqsmn personal aat. 0s authentication
USiuettuStt8nes8. In the nrese& tense. the :.:. J
worii has been defined as-rnaanimz to a& &~%a.~
declaration in words or writing to suppqrt a
fact, or torsl@fy by subscription ofhi&
- thati the aler ha8 wltPeesed ths exe-
autlan of the .partlcular lns~umant; to affim
to be &we or e&mine; .to bear ,titneee to;, to
certify.to so g:saribe; to tebtlfy:,to vouch fort
to titaebsi5 to ~witneee the execution 0s. a~.. .‘~’
written Instrument, at the requastof.hlm who
makes it, and 6ubsorlblng the aaaps as a wlt?
Qese; It has been said that the word Is ap-.
pmprlately used for the arrimmti0.n 0s per-~.
suns in their orr,iafal oapaolty to teat the :
l
: In ~-3leWof the foregoing It Is our oplnlm that
10 Sti &bsslble.:for the crounty alerk to attept~-.to ‘a pro- d
Hon. Wm. L. Taylor, page 7 (V-1038)
,
ceedlag of .the Ccqlasl~~ers~ Court which be did not
attend, and the lav.doea not tyqqln +lm to..peH?l?PL.itih
an sot; : ,.
The next question for Ott determination IS
whether It le the duty of the county clerk to record ml.n-
ate5 0s the CorPirsiopers* Court which have not been at-
tested;
Thq cou&s of thle State In cons~ the pro-
viaioas ?f A+lcle,2349 +bove_qu?ted have +at&,$ui>~
the county clerk 1~ required by the p~ovIslons,.ef Artl-
cle 2349 to attest to &nd record the mInutea oi:@ie Oom-
mIssloners* Court, but hIei failure to record such ad&%?
utea will not Invalidate the orders of the CoppnissIon-
The ocppt held In RankIn vi Boel, ~3rtp#rt
"
We rule formerly prevailed that &tt~~ ~'
traeta or agreemeats made by mu?xLclpal cor-
porations, county or city, are only mid and
bbdhg what entered upon the mlnutes. 9hzl.a
be neoeaeaPy to prove the pitssage 0s the or-
tyss @ ~,;~~d2!$v"$'&;ffy&.. "2""
mere da&cram by the'colrPdseioaera*and a
ve&ul a reement to do a oertalu wltb
out a vo& .belag tak- wouldnot -3
cons itut?
an omler and would Pat be valIdi ~Therb,must'
Baa. wfa. L. Taylor, page 8. (v-1038)
be ‘itatorder,vaMa ?q the xiotm$seioners. Pay-
ette County oi’~lWmse, ‘herein cited; In
ttpxmag 0s the 80airiOwon Or the rule as
a.et out In Ewing v. Etmqau, the Court 0i Civ-
il ~App~lrr’qa~at
.“Vhatever ua9 be the extent to which
those decisions moQlfy the rule as to the ne-
cessity fos the entry &II the mlautea of or-
aera made by a commlaalonezel oourt, they III
no way modlf9 the rule that all ooatraata
made by a ciouuty, to be valld’and bludlng,
+it be made by or under authorltg of an or-
der of the coam$seloners* court.!
.;.In Watson v. Dewftt Corm* supa, the court
allaired admlssloa la evlaenoe of an order 0s the comls-
i+otters~~53ourt which was retarded in its mlautes buti
,aot .att&ed by the alerk, the coart stating that tti
,8@8tute (Art; 2349) “requlrtngthe olerk to attest the
~mlh~ea.Is4lrectory oaly and th6g should not havo.been
re@et+ beoause not so atteateqli.,
IQ view of the foregoing It Id our apinioa that.
the County Clerk as ex-officio clerk of the Ccm.leslon-
em1 Ooort has the duty uudsr the prowlsIons of A*lole
2349 to ‘reoortl Uie rLinute0 0s the Oomdssioaere g Court
regardletp of whewez! maah minutes hear his atteetment;
SURMARY
The Commlsslonera* Court IS anthorised to
exclude frm its ndnutea~debqt6a 3.n favor of
or against motiona before the court; but majr
not exclude oo~e~enpbes whleh~oonstltute a
part of the “dourt proaeedlags" such as mo-
tlasss made, votee fm thit motieaa, and ordera
‘pa;, Oottst Art; vi, sec. 181 ,Arti;
8$:;:&4g, v;cis;;‘i;e; opiaion ~0; o-6318,-
th+d Jan~r9 5, 1945;
The oounty alerk Is not reqalred to. at-
tost mInutea 0s a meeting ef the Cemrisslan-
en1 Cotirt of which he Wd no notiae or &now-
ledge and did not attend, but It is hia dtij
to record'saah minute8 wader the ~rovlaioas
of Arfiole 2349, V.C.S. 11 Tex. Jur. 5707
d HGL IRE;L. Taylor,page 9 (V-109)
Yours very truly,
PRICE E%ulIEL
Attorney Qeneml
APPR0Vif.B
J; C. bavls, Jr;
,cotmtyAffairs oivis~on
Charles B.~I(athem
:Ibreeutive As~lstaat
LJ JRtbh