                                                                     R-1017




                            AUSWN PB.TSSXAS



                             January      24,1948


Honorable William N. Hensley
Criminal District Attorney
Bexar County
San Antonio, Texas         Opinion No. V-485

                                  Re:     Whether a clerical   error by the
                                          Board of Equalization   will in-
                                          validate the assessment   and re-
                                          lated questions.

Dear Mr.    Hensley:

                  Your letter request      relative   to the above-captioned
matter   reads,    in part, as follows:

               “I’have received from the Commissioners’
         Court of Bexar County the following:

                “‘The Commissioners’      Court has here-
            tofore passed a number of orders cancel-
            ling assessments     and directing the Tax As-
            sessor-Collector     of Bexar County to cancel
            the set assessment     appearing on the 1947
            tax roll by reporting it on the Form 17 list
            of errors and to reassess     the property and
            to present the new assessment       to the Com-
            missioners’     Court for approval as required
            by Articles 7346 and 7347, Revised Civil Stat-
            utes.   In each of sucbcases,     the order re-
            cited that the assessment     was invalid be-
            cause of a clerical    error in the Board of
            Equalization.

               “‘On November      21, 1947, several such
            orders were r.eturned to the Commissioners’
            Court with a statement from the Hon. P. E.
            Dickinson, Tax Assessor-Collector       of Bexar
            County, substantially    as follows:

                   ““We    regret,very much that we.can-
                  not accept the order of October 29,
                  1947, issued by Commissioners    Court
                  of Bexar County, Texas, instructing    the
Honorable   William   N. Hensley,   Page   2 (V-485)




              Assessor-Collector   to reassess  prop-
              erty in the name of Fidelity Realty
              Company No. 45.

                “‘- It is our understanding    that the
              value of the property as fixed by the
              County Commissioners      sitting as a
              Board of Equalization   is final, subject
              only to being set aside for fraud or
              the adoption of a fundamentally    wrong
              method of a~ssessment.“’

                 “‘It is my feeling that where a clerical    er-
            ror is made in the Board of Equalization        set-
            ting evaluations    on property on the tax rolls,
            that the order of the Commissioners’        Court,
            when that fact is, brought to its attention, prob-
            ably should find as a finding a fact by the Com-
            missioners’    Court that evaluation was invalid
            because .of such clerical    error.   I do not be-
            lieve that the law can mean that the Commis-
            sioners’ Court is restricted     in its findings to
            a.finding of fraud or the adoptioarof a funda-
            mentally wrong assessment.

                “Therefore,  I request     your opinion upon
            the following questions:

               “1.   Is it proper for the order of the Com-
            missioners’    Court, where such is the facts, to’
            contain a finding that the evaluation placed by
            the Board of Equalization    on the property in
            question was invalid because of a clerical    er-
            ror in computing such value by the Board of
            Equalization?

               “‘2. Is it necessary. that the Commissioners’
            Court, in such case, find that the evaluation,
            and subsequent assessment,     was invalid be-
            cause of the adoption of a fundamentally   wrong
            method of assessment?

                “‘3. Is it not sufficient that the Commis-
            sioners’ Court find that a clerical     error exists
            as a basis for its order.declaring     its evalua-
            tion, and subsequent assessment,,     invalid?

               “4.   If it is not legally sufficient for the
            Court to find a clerical    error exists, then what
            specific terminology     must be used in order for
Honorable   William   N. Hensley.   Page   3 (V-485)




            the Commissioners’    Court to set aside an
            invalid and improper evaluation made by
            the Board of Equalization?  I”

               We are enclosing herewith the prior Opinions ‘J-1342,
O-1462, O-6257, and O-7412, which set out applicable  statutes rela-
tive to invalid assessments   and the method piovided in having prop-              ;
erty re-assessed.

                 However, from the facts stated in your letter, we are
of the opinion that the assessments     in question are valid.     Clerical
 errors were made by the Equalization      Board in performing       its duty
in equalizing add correcting    the assessments.     Assuming     that the as-
sessments    were valid at the time the tax assessor     submitted the list
of assessments    to the Equaliaation   Board, clerical   errors by the
Board would not, in our opinion, make the assessment          void.    The
Commissioners’     Court, sitting as a board of equalization,      is a quasi-
judicial body. Ward County v. Wentz, 69 S.W. (2) 571; City of El Paso
v. Howze, 248 S.W. 99. It is our opinion that the Commissioners’
Court, convened as a board of equalization,       has the same authority to
make the record of its findings a,s to valuations correctly       and fully
reflect what the court found, as a court has to corroct~ errors in the
entry of its’ judgment by a nunc pro tune order.       We must assume. as a
baAis for this opinion that the changes in the assessment        roll as or-,          -’
dered by the Commissioners’       Court, were ordered because of clerical      )
errors and that the’finding that an error had been made in entering its
judgment approving or fixing a particular      valuation is correct.      The
Supreme Court of Texas in Coleman v. Zapp, 151 S.W. 1040, in uphold-
ing the power of c~ourts to correct their records.by      nunc pro tune en-
tries, used the following language:

               “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 ministeriel    act by which an enduring evidence
        of the judicial act is affosded.

                *The failure of the minute entry to correct-
        ‘ly or fully recite what the court judicially deter-
        mined does not annul the act of the court, which
        remains the judgment of the court notwithstanding
        it.s imperfect   record. Freeman   on Judgments,
        § 38.

               “Hence it is that from the earliest times the
        power of correcting   or amending their records,    by
        nunc pro tune entry, so as to faithfully recite their
        action, has been possessed   and exercised   by the
Honorable   William   N. Hensley,   Page   4 (V-485)



       courts as an inherent right, independent of any
       statute, and, in the absence of express provi-
       sion, unaffected by limitation.     Freeman on Judg-
       ments, % 56; Ency. Pl. 81 Prac. vol. 18, p. 459.
       Our statutes providing for the correction         af
       mistakes   in the record of judgments and decrees
       (articles  1356 and 1357, Sayles’ CM1 #@at.) gev-
       em the procedure of its exercke;         hu# i&ey are
       only cumulative     of this inherent power of the
       courts to have their records at~all times speak
       the truth; If a court is made aware that through
       mistake or omission its records do not recite
       its judgment as actually rendered,       we do not
       doubt that it is not only the right but the duty of
       the court, of its own motion and after due notice
       to the parties,   to~order the proper entry.      The
       nature of a judicial record, the accuracy of which
       is the peculiar concern of the court and which for
       that reason and to that extent remains within the
       court’s control, forbids that its correctness        as
       an expression     or evidence of judicial action should
       depend upon the inauguration of a proceeding by
       the parties; and it is therefore plain that such a’
       proceeding    only invokes an authority which the
       court may exercise      of its own accord.     In Xfmenes
       v. Ximenes,     43 Tex. 458, Judge Moore quoted the
       following language from the opinion of Judge
       Wheeler in Burnett v. State, 14 Tex. 456:         “Every
       court has the right to judge of its own records and
       minutes,   and, if it appear satisfactorily     to them
       that an order was actually made at a former term
       and omitted to be entered by the clerk,‘they,may
       at any time direct such order to be entered on the
       records as of the term when it was made.“’ And
       then announced:      ‘And there can be no doubt, we
       think, that this court may, at a subsequent term
       after a final judgment, if there is the proper’ pred-~
       icate for it. correct clerical    errors   or mistakes,
       cure defects of form. or add such clause as may
       be necessary     to carry out the judgment of the
       court, make the entry in the minutes correspond
       with and correctly     express the judgment actually
       rendered,   as shown by the entire record.’         In
       Whittaker v. Gee, 63 Tex. 435, it was held by
       Chief Justice Willie as follows:       ‘Frequent deci-
       sions of this court have settled the right to have
       a judgment amended after the expirati,on of the
       term at which it was obtained, when, through mis-
        take or clerical error, the record does not speak
.




    Honorable   William   N. Hensley.   Page   5 (V-485)




           fully or truly   the judgment   actually    rendered    in
           a cause.‘”

                   Based upon the above, it is our opinion that the Cdm-
    missioners’   Court, sitting as a board of equalization, after due no-
    tice to the taxpayer,  may by a nunc pro tune entry, correct clerical
    errors in its minutes of prior meetings so they will correctly    re-
    flect the prior action of the Board.   Then it will become the tax
    collector’s  duty to correct his tax rolls to conform thereto.


                                 SUMMARY

                  The Commissioners’       Court, sitting as a
           board of equalization,    after due notice~to the
           taxpayer, has the authority to correct clerical
           errors    in its minutes of prior meetings by a
           nunc pro tune entry, so that the minutes will
           correctly    reflect  the prior action of the Board
           in equalizing assessments.       The tax collector
           should then correct hi,s tax rolls to eonform
           thereto.


                                               Yours    very   truly

                                   ATTORNEYGENERALOF                    TEXAS




                                                 W. V. Geppert,
                                                   Assistant

    W VG/JCP

                                   APPROVED       :




                                        T ASSISTA NT
                                        ORNEY GENERAL
