OF TEXAS
AUB- ia,-
GROVER SELLERS
-N
*-RNEYG%~NERAr.
Honorable T. K. Wilkinson
County Auditor
Hill Couilty
Hlllsboro, Texas
Dear Sir: Opinion No. O-6423 .-
Re: Is it mandatory that the county
tilerkojPone of his deputies
attend all meeting3 of the com-
missioners' cou?.%aS ex officlb
clerk thereof, and another ques-
tion.
owe ackhowledge receipt of your reijuestfor an opFnlon
on the above matters, said request being as follows:
"1 . Is It mandatory that the County Clerk
or one of his deuutltisatt6nd all meetings of the
Commissioners Court as ex officio Clerk thereof?
"2 D Is It mandatory that the County Clerk
attest the minutes of,the CominisslonersCourt g
neFther the County Clerk nor any of his dtiputles
were Dresent at the session of the Court and have
no Dersonal knowledae of the DPOCeedinRS Included
Fn the minutes?
"3. In the event the'county Clerk is not in
attendance at the meetings of the Commlssloiiers
Court as Ex offlclo Clerk, 'and orders are passed"and
other business transacted and the County Clerk Fails
to attest the minutes of the Court, will such fail-
ure invalidate the orders and proceedings of the Court?"
Article 2345 of Vernon's Annotated Civil Statutes is as
follows:
"The county clerk shall b6 ex-offIcio"clerk
of the.'commlssioner&court; and he'shall attend
upon eischterm bf said commissioners court; pre-
serve and keep all books,-papers;"records~and
effects belonging theret'o,Fsaue all notices,
writs and process necessary for the proper execu-
tlon of the powers and duties of the commissioners
Honorable T. K. Wilkinson, page 2 o-6423
court, and perform all such other duties as may
be prescribed by law."
Article 2349 of said statutes is as follows:
"The court shall require the county clerk to
keep suitable books in which shall be recorded
the procei+dlngsof each term of the coutit,which
record shall be read and signed after each term
by the county judge, or the member preslaing and
attested by the clerk. The clerk shall also re-
cord all authorized proceedings of the court '~
between terms; and such record shall be read and
signed on the first dciyof the term next after
such proceedings occurred."
The general rules governing the keeping of the records
of the commliislonerscourt are found in 11 Tex.LJur., Sections
41 and 42, pages 570-572 In the following language:
'~ "Records of Proceedings - Authbnticatlon -
Se&l - The Comml'ssloneriCourt is'tiequiredto
record upon suitable-'booksthe procegdlngs of
each term of court; and the minutes are required
to be read over and slgni%dbjithe county judge
6~ the member presiding and attested by the
clerk. All authority ejrercised'by the court
mtit be evid‘enctidin that mannei‘. It lsinot
necessary that a single book shall contain the
i%cord of the court's prbceedings; vtirlousbooks
Mingbe kept Zn whlch‘proceedlngs relating to
particular matters may be proberly recorded;
Each book kept and used forkthis purpose 1s;
within the meaning of the law, a minute-book,
and the entries therein made are minutes.
"Commissioners' courts are courts of'reaord,
and they mst &uthenticate all official acts, if
such authentication Is required, by a seal pre-
scribed by statute.
"Entry of Orders - The requirement that every
official act of the commissioners' court shall be
evidenced by an order entered upon the mlnut& of
the cotirthas been modified to the extentthat
where an order Is shown to have been actually m&de
by the court, and has been acted upon, the omlsslon
of the clerk to record the order will not render It
or the gets done in pursuance thereof void. Al-
though an order of the cowissloners' court has
.- .
’
Honorable T. K. Wilkinson, page 3 O-6423
never been entered upon the court's mlnu.tes,it
may nevertheless be proved by par'blevidence and
given effect. The rule Is necessarily different
where an okder Is required by the termsof a
special'statute to be entered 'of record, or where
a general statute declares that such orilershall
be bold unless recorded. It is held that the"
evidence to establish a contract must be contained
in the written proceedings of the court. However,
if the court falls to place an order upon the
minutes at the tlme~when it is made, as required
by law, the order may'be entered.'uponthe minutes
at a subsequent regular or special
. session."
In the case of Landa vs. State et al, 131 S;W. ~321',~
Wit
dismissed, the'~SanAntonlo'Court of Civil~~Appealshad unGer~%on-
slderatlon a matter where complaint waa made because'~extracts
from the minutes of the commissioners' court were read In~evl-
dence without first ahowlng that such mliiutes~had~
beensigned.
by the judge and attested by the clerk, as provided for by'Art.
2349, but the Court of Civil Appeals overruled sucilcontention
on the ground that the provisions of said article are directory
and not mandatory.
The latest announcement of this ruleXs founds Inthe
case of Weaver vs; Commissioners' Court of Nacogdbdhes~.Cauhty,~
146 S,W. (26) 170, wherein-the Commlsslon of Appeals was pass; .'
lng upbn the contention that a~certaln'order signed bgthe“c-buiity
judge and three commissioners was'the action'of said. offlclals
personally and not an official order, ‘and that ~ltshoula have
been entered upon the minutes of the commissioners1 court. In
overruling such contentions, the court held as ~follows:
.~~
"It is well settled that.'anorder of the com-
missioners' court actually paased~IS not vold.be-
cause not“entered upon-the"minutes of the court,
and the fact that It was made can be shown by
parol evidence:' Mecom v; Ford, 113 Tex. IOg, 252
sow. 491. See also Whltaker v. Dlllax-d,81 Tex.
359, 16 S.W. 1084: If the action of the court -.
can be proven'by parol evidence, certainly It can
be proven by circumstances."
.~
We quote and adopt the following from our'~opl.nl.on
No.
o-6318, which had to do with a somewhat similar matter:
"It Is uniformly held that'the Commissioners'
Court is a court of record. Gano v. Palo Pinto
County, 8 S.W. 634;'Bradford v. Moseley, 223 S.W.
171. Article 2349 above quoted necessarily makes
.
Honorable T. K. Wilkinson, page 4 O-6423
it so. Any court whose proceedings are required
by law to be recorded In minutes or books kept
for that purpose is a court of record.
"The word 'ptioceedlngs'is used here In Its
ordinary sense, and means the official functions
of the court. Such functions are'not limited to
any particular class of functlons;.but on the
contrary they Include every official act done by
the members of the court In tilecourse of their
sitting .^'This would Include a pertinent mo$Fon
m&de by any member of the court In the course of
passing a besolutloiior--orderwhatsoevef. Such
motion Is an lntegral‘part of the resolution or
order. Furthermore, a motion made by a'member
of the court duly"ln~'sesslon‘isit&elf"a 'ptioceed:
lng' in the regular and ordinary way, and; we
think, should be entei%d upon the minutes, llhether
such inotion‘~receivesa iiecdndor not. In parll-
amenttiryusage in such-a case the motion Xs lost
for want of a second, and Is thus effectually
disposed of. ..~
"A good reason 1s easily assigned, if reason
for the statute Vere.'required,whyy‘&uchproceed-
ings should be made a matter of record. .'The
CommissFoners"Coui% is"& cburt of-'generaljurls-
diction In this State, &id as wee have seeQ 1.9a
court of-record. It i'sa court of tremendous
since it h&s jurisdiction over the"
lmportaiice';
county affairs of the county-; The public hai a
deep concern with the .ofPlclal-'actsof such court,
ahd It5 probeedlngs therefore are of such lmpor-
tance as that~an accurtiterecord should be kept
for the general Information of the public concerned.
Motieover;while it sometimes-happens that the fall-
ure'to make a minute of certain proceedihgs'ls not
Patal to the validity of.thiisame-.(SeeLaiidav.
State, 131 S.W. (2d) 321,) and that the validity
of an.otiderproperly ptissedla susceptible of
proof and the order may be proved by oral testl-
mony tMecom v. Ford, 252 S.W. 491), nevertheless,
the statutory requirement for duly rbcorded
m'lnutes,attested by the ptioperoffichrs, Is the
safer way, and matters of such importance should
not be left to the difficult and sometimes un-
certain method of proof dehors the record."
It has been held that the provisions of th8 .+tatute~s
hereinabove referred to making It the duty of the county clerk,
.
Honorable T. K. Wilkinson, page 5 O-6423
either in person or by deputy, to record the proceedings bf
each terinof the commissioneri?.'
court are directory only and
not mandatory, and that the failure of the cbunty clerk of his
aeputy to perform such services will nbt invalidate the orders
and proceedings of the commissioners' court lnsbfar as they
affect pub133 or private rights. However, It was not intended
that the statutory provisions requiring the-.county~clerk tom
attend'upon and record the proceedxngs of each term of the com-
missloner's-court should be disregarded. Art. 5970 of V.A.C.S.
provides that a county clerk may be removed from offId@ by the
judge of the district court'for incompetency or offlc,ialmls-
conduct; "official misconduct" being defined by Art. 5973 of
said statute as follows;
"By 'official misconduct' as used h&rein with .
reference to county officers, Is meant any unlaw-
ful behavior in relation~~t6the~dutles of his
office, wllful in its character, bf any officeti
Intrusted in any manner with the admliilstr~tlon
of justi&, or the .executionof the laws; ana-.
includes any wilful OF corruDt Ptillutie,
re=al
or neglect of an officer to perform tinyduty
enjoined on him by law. ' (Emphasis ours)
We trust that this aatlsfactorlly answers your Inquiry.
Yours very truly,
ATTORNEYGENERALOFTEXAS
By s/JEis.W. Bassett
Jas. W. Bassett
Assistant
JWB :LJ:wc
APPROVEI)MAY 12, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Commltt~eeBy s/GWB Chairman