          THEATTORNEYGENERAL
                        OP-XAS




                         September 20, 1960

Honorable Charles J. Lieck, Jr,      Opinion No.WW-942
Criminal District Attorney
Rexar County Courthouse              Re: Validity of an order of
San Antonio, Texas                       the Commissioners' Court
                                         providing that voting
                                         abstentions shall be re-
                                         corded in the Minutes of
                                         the Commissioners' Court
Dear Mr. Lieck:                          as negative votes.
         You have requested an opinion on the validity of an
order of the Commissioners1 Court of Bexar County dated August
1, 1960, reading as follows:
                  "ORDER ADOPTING A RULE OF PROCEDURE
                   OF COMMISSIONERS' COURT ON VOTING.
               "A motion .was presented by County Com-
        missioner Sam Jorrie, duly seconded by County
        Commissioner A. J. Ploch, which motion was voted
        as follows: Commissioners Pena, Jorrie and Ploch
        voting 'Aye': Commissioner Wurzbach and Judge
        Anderson voting 'Nay': It is ordered by the
        Court that the following be adopted as a rule of
        procedure of Commissioners' Court: 'In any case
        where any member of Commissionersf Court (County
        Judge or County Commissioner) abstains from vot-
        ing or fails to vote when present, the minutes
        of Commissioners' Court shall hereafter be marked
        to indicate that the member of Commissioners'
        Court who abstained or failed to vote when pre-
        sent, voted 'No.'"
         The Commissioners' Court is a court of record and
speaks through its minutes. Maples v. Henderson County, 259
S.W.2d 264 (Civ.App. 1953), err. ref. n.r.e.
         Article 2349, Revised Civil Statutes of Texas, 1925,
requires the County Clerk to keep a record of the proceedings
of the Commissioners' Court in a suitable book kept for that
purpose. Brown, et al v. Reese, 67 Tex. 318, 3 S.W.292 (1887).
In Drown v. Reese, supra, the court held that the best evi-
dence of a proceeding of the Commissioners' Court is "either
the record itself or a certified copy as provided for by
Honorable Charles J. Lieck, Jr.   Page '2 (WW-942)


statute under the hand and seal of the Clerk."
         Thus, it is our opinion that it is the mandatory duty
of the County Clerk under the provisions of Article 2349 to
keep an accurate record of the proceedings of the Commissioners'
Court. The order quoted above would require the Clerk to record
a "No" vote in those instances where a member of the Commission-
ers' Court abstains from voting, rather than casting a "No" vote.
If the Clerk abided by the order under consideration, the min-
utes of a Commissioners' Court would reflect such erroneous
matter. You are, therefore, advised that insofar as the order
of the Commissioners' Court referred to in your request requires
the Clerk of the Commissioners' Court to record erroneous matter
in the Minutes of the Commissioners' Court, such order is in-
valid.
                           SUMMARY
                           ----_--
                It is the duty of the County Clerk to
             keep an accurate record of the proceedings
             of the Commissioners' Court in a suitable
             book kept for that purpose and any order of
             the Commissioners' Court which would require
             the County Clerk to record a voting,absten-
             tion as a "No" vote is invalid to the extent
             that it requires the County Clerk to violate
             such mandatory duty.
                                  Very truly yours,
                                  WILL WILSON
                                  Attorney General of Texas

JR:ms:zt                                      /lcLwd
                                  By,
                                    FJohn Reeves
                                     Assistant
APPROVED:
OPINION COMMITTEE
w. v. Gwpert, Chairman
C. Dean Davis
Wm. R. Hemphill
Iola Wilcox
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
