                           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
