R-1017
AUSWN PB.TSSXAS
January 24,1948
Honorable William N. Hensley
Criminal District Attorney
Bexar County
San Antonio, Texas Opinion No. V-485
Re: Whether a clerical error by the
Board of Equalization will in-
validate the assessment and re-
lated questions.
Dear Mr. Hensley:
Your letter request relative to the above-captioned
matter reads, in part, as follows:
“I’have received from the Commissioners’
Court of Bexar County the following:
“‘The Commissioners’ Court has here-
tofore passed a number of orders cancel-
ling assessments and directing the Tax As-
sessor-Collector of Bexar County to cancel
the set assessment appearing on the 1947
tax roll by reporting it on the Form 17 list
of errors and to reassess the property and
to present the new assessment to the Com-
missioners’ Court for approval as required
by Articles 7346 and 7347, Revised Civil Stat-
utes. In each of sucbcases, the order re-
cited that the assessment was invalid be-
cause of a clerical error in the Board of
Equalization.
“‘On November 21, 1947, several such
orders were r.eturned to the Commissioners’
Court with a statement from the Hon. P. E.
Dickinson, Tax Assessor-Collector of Bexar
County, substantially as follows:
““We regret,very much that we.can-
not accept the order of October 29,
1947, issued by Commissioners Court
of Bexar County, Texas, instructing the
Honorable William N. Hensley, Page 2 (V-485)
Assessor-Collector to reassess prop-
erty in the name of Fidelity Realty
Company No. 45.
“‘- It is our understanding that the
value of the property as fixed by the
County Commissioners sitting as a
Board of Equalization is final, subject
only to being set aside for fraud or
the adoption of a fundamentally wrong
method of a~ssessment.“’
“‘It is my feeling that where a clerical er-
ror is made in the Board of Equalization set-
ting evaluations on property on the tax rolls,
that the order of the Commissioners’ Court,
when that fact is, brought to its attention, prob-
ably should find as a finding a fact by the Com-
missioners’ Court that evaluation was invalid
because .of such clerical error. I do not be-
lieve that the law can mean that the Commis-
sioners’ Court is restricted in its findings to
a.finding of fraud or the adoptioarof a funda-
mentally wrong assessment.
“Therefore, I request your opinion upon
the following questions:
“1. Is it proper for the order of the Com-
missioners’ Court, where such is the facts, to’
contain a finding that the evaluation placed by
the Board of Equalization on the property in
question was invalid because of a clerical er-
ror in computing such value by the Board of
Equalization?
“‘2. Is it necessary. that the Commissioners’
Court, in such case, find that the evaluation,
and subsequent assessment, was invalid be-
cause of the adoption of a fundamentally wrong
method of assessment?
“‘3. Is it not sufficient that the Commis-
sioners’ Court find that a clerical error exists
as a basis for its order.declaring its evalua-
tion, and subsequent assessment,, invalid?
“4. If it is not legally sufficient for the
Court to find a clerical error exists, then what
specific terminology must be used in order for
Honorable William N. Hensley. Page 3 (V-485)
the Commissioners’ Court to set aside an
invalid and improper evaluation made by
the Board of Equalization? I”
We are enclosing herewith the prior Opinions ‘J-1342,
O-1462, O-6257, and O-7412, which set out applicable statutes rela-
tive to invalid assessments and the method piovided in having prop- ;
erty re-assessed.
However, from the facts stated in your letter, we are
of the opinion that the assessments in question are valid. Clerical
errors were made by the Equalization Board in performing its duty
in equalizing add correcting the assessments. Assuming that the as-
sessments were valid at the time the tax assessor submitted the list
of assessments to the Equaliaation Board, clerical errors by the
Board would not, in our opinion, make the assessment void. The
Commissioners’ Court, sitting as a board of equalization, is a quasi-
judicial body. Ward County v. Wentz, 69 S.W. (2) 571; City of El Paso
v. Howze, 248 S.W. 99. It is our opinion that the Commissioners’
Court, convened as a board of equalization, has the same authority to
make the record of its findings a,s to valuations correctly and fully
reflect what the court found, as a court has to corroct~ errors in the
entry of its’ judgment by a nunc pro tune order. We must assume. as a
baAis for this opinion that the changes in the assessment roll as or-, -’
dered by the Commissioners’ Court, were ordered because of clerical )
errors and that the’finding that an error had been made in entering its
judgment approving or fixing a particular valuation is correct. The
Supreme Court of Texas in Coleman v. Zapp, 151 S.W. 1040, in uphold-
ing the power of c~ourts to correct their records.by nunc pro tune en-
tries, used the following language:
“The judgment of a court is what the court
pronounces. Its rendition is the judicial act by
which the court settles and declares the decision
of the law upon the matters at issue. Its entry is
the ministeriel act by which an enduring evidence
of the judicial act is affosded.
*The failure of the minute entry to correct-
‘ly or fully recite what the court judicially deter-
mined does not annul the act of the court, which
remains the judgment of the court notwithstanding
it.s imperfect record. Freeman on Judgments,
§ 38.
“Hence it is that from the earliest times the
power of correcting or amending their records, by
nunc pro tune entry, so as to faithfully recite their
action, has been possessed and exercised by the
Honorable William N. Hensley, Page 4 (V-485)
courts as an inherent right, independent of any
statute, and, in the absence of express provi-
sion, unaffected by limitation. Freeman on Judg-
ments, % 56; Ency. Pl. 81 Prac. vol. 18, p. 459.
Our statutes providing for the correction af
mistakes in the record of judgments and decrees
(articles 1356 and 1357, Sayles’ CM1 #@at.) gev-
em the procedure of its exercke; hu# i&ey are
only cumulative of this inherent power of the
courts to have their records at~all times speak
the truth; If a court is made aware that through
mistake or omission its records do not recite
its judgment as actually rendered, we do not
doubt that it is not only the right but the duty of
the court, of its own motion and after due notice
to the parties, to~order the proper entry. The
nature of a judicial record, the accuracy of which
is the peculiar concern of the court and which for
that reason and to that extent remains within the
court’s control, forbids that its correctness as
an expression or evidence of judicial action should
depend upon the inauguration of a proceeding by
the parties; and it is therefore plain that such a’
proceeding only invokes an authority which the
court may exercise of its own accord. In Xfmenes
v. Ximenes, 43 Tex. 458, Judge Moore quoted the
following language from the opinion of Judge
Wheeler in Burnett v. State, 14 Tex. 456: “Every
court has the right to judge of its own records and
minutes, and, if it appear satisfactorily to them
that an order was actually made at a former term
and omitted to be entered by the clerk,‘they,may
at any time direct such order to be entered on the
records as of the term when it was made.“’ And
then announced: ‘And there can be no doubt, we
think, that this court may, at a subsequent term
after a final judgment, if there is the proper’ pred-~
icate for it. correct clerical errors or mistakes,
cure defects of form. or add such clause as may
be necessary to carry out the judgment of the
court, make the entry in the minutes correspond
with and correctly express the judgment actually
rendered, as shown by the entire record.’ In
Whittaker v. Gee, 63 Tex. 435, it was held by
Chief Justice Willie as follows: ‘Frequent deci-
sions of this court have settled the right to have
a judgment amended after the expirati,on of the
term at which it was obtained, when, through mis-
take or clerical error, the record does not speak
.
Honorable William N. Hensley. Page 5 (V-485)
fully or truly the judgment actually rendered in
a cause.‘”
Based upon the above, it is our opinion that the Cdm-
missioners’ Court, sitting as a board of equalization, after due no-
tice to the taxpayer, may by a nunc pro tune entry, correct clerical
errors in its minutes of prior meetings so they will correctly re-
flect the prior action of the Board. Then it will become the tax
collector’s duty to correct his tax rolls to conform thereto.
SUMMARY
The Commissioners’ Court, sitting as a
board of equalization, after due notice~to the
taxpayer, has the authority to correct clerical
errors in its minutes of prior meetings by a
nunc pro tune entry, so that the minutes will
correctly reflect the prior action of the Board
in equalizing assessments. The tax collector
should then correct hi,s tax rolls to eonform
thereto.
Yours very truly
ATTORNEYGENERALOF TEXAS
W. V. Geppert,
Assistant
W VG/JCP
APPROVED :
T ASSISTA NT
ORNEY GENERAL