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                                       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
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