- ‘- 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
initials under the word
l’DeniedVt on a motion
for rehearing a final
order denying such
motion under t,he facts
Gentlemen: set our below?
We have your letter of February 19, 1941, submitting
the following facts:
“On December 16, 1940, the Commission granted
the application of M. R. Newnhamfor special permit
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 initials 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-
tion is still pending. I vote for granting the re-
hearing. --E.O.T. January 5, 1941.’
Hon. Jerry Sadler
Htin. Olin Culberson, page 2 (O-3186)
“On January 10, 1941, Commissioner Culberson
wrote on 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 memorandumor
other instrument showing what the decision had been,
and for the formal order to be prepared at its sub-
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 initialed the
memorandumor 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-
tion for rehearing on December 31, 1 0 and reach-
ing the conclusion % or rehear-
to deny such motion
ing and evidencing 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
of its duties exercises quasi judicial powers. Gulf Land Com-
pany vs. Atlantic Refining Company, 131 S.W.(2) 73.
Hon. Jerry Sadler
Hon. Olin Culberson, page 3 (O-3186)
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 the
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
to orders of commissioners’ courts which have not been entered
upon the minutes of the court, and it has been held that the
action of the court could be proved by circumstances and pa-
role evidence. (See Weaver vs. Commissioners1 Court, Nago -
doches County, 146 S.W. (2) 170; Mecum VS. Ford, 252 S-W. 6 91)
In the case of Coleman vs. Zapp, et al., 151 S-W.
1040, at page 1041 thereof, Judge Phillips speaking for the
c--. -\ -.
Hon. Jerry Sadler
Hon. Olin Culberson, page 4 (O-3186)
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 the
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-
standing its imperfect record. Freeman on Judg-
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 memorandumwas 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 initials 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
initialed the motion acted upon.
We think that this situation clearly demonstrates
that the Commission~s decision was made and its final order en-
tered on the 31st day of December, 1940, when Commissioners
Smith and Sadler signed their initials 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
/s/ Gerald C. Manu ATTORNEY GENERALOF TEXAS
ATTORNEY GENERAL OFTEXAS By /s/ Ed Roy Simmons
APPROVED:OPINIONCOMMITTEE Ed Roy Simmons, Assistant
BY: BUB, CHAIRMAN
ERSrewiwb
&cl.