 .     .




                            NY 21, 1958


Honorable Bill Allcorn                    Opinion No. WW-434
Commissioner
General Land Office                       Re: Proper construction
Austin, Texas                                 of Article   5&21c-3,
                                              V.C.S.,   as same pertains
                                              to the ,acceptance of
                                              bids by the School Land
                                              Board of the State of
Dear Mr. Allcorn:                             Texas.
             In connection with a recent lease sale conducted
by the School Land Board, the minutes of the Board as pre-
pared by the Secretary reflect   that motion was made, seconded
and carried that all high bids, with the exception of a tract
not here Involved,  be accepted.  Prior to the approval of the
minutes a protest was lodged with the Board against awarding
of a lease on the river bed in question to the high bidder.,
and a hearing was had thereon. In the light of the controversy
that has arisen you ask our opinion In answer to the following:
                 "Is the approval of the minutes simply a
           ministerial  duty to the extent that the Board
           is bound to approve the minutes of the meeting
           if they correctly   reflect the action taken by
           the Board; or does the statute vest a discretion
           in the Board to the extent that there is no final
           acceptance of a bid until the minutes of a meeting
           at which the acceptance occurs are approved?"
            Under previous statutes,   the State stood In the
position of an offerer  with no authority  to accept or reject
bids. See State v. Robison, 119 Tex. 302, 30 S.W.2d 292, where-
in the Court stated:
                      .The Commissioner has nothing to do
           with acceptance.  His duties, as fixed by the
           statute,  are not to contract as agent for the
           State. He has no power, discretion   or authority
           under the act to accept or reject the bid of the
Honorable   Bill   Allcorn,   page 2 (W-434)

       highest bidder. But the statute makes it.
       his duty to ascertain  who is the highest
       bidder, and to execute a lease to him. No
       discretion,  no power of rejection is re-
       posed in him. His duties are fixed by law,
       are mandatory and ministerial.”
             State v. Robison was decided in 1930, and ap-
parently because of this decision     the suaceedlng Legislature
in 1931 passed Article    54210, Section 8A, V.C.S.,  which placed
discretion  to accept or reject bide on leases to river beds
In the Board of Mineral Development. In 1939 the Legislature
adopted Article   54210-3, V.C.S.,   creating the School Land
Board. This Board took over the functions     of the Board of
Mineral Development. The answer to your question depends u on
the proper interpretation    of certain portions of Article    5t 21c-3
as follows:
            Section 5 provides that the School Land Board shall
meet on the 1st and 3rd Tuesday of each month and that such
Board shall select a secretary.
               Section   6 provides:

             “The School Land Board shall keep a
       record of Its proceedings   to be called lte
       minutes which shall inolude a docket on which
       the secretary  shall enter all matters to be
       considered by the Board, the minutes and dooket
       to be subject to lnspeation   by any citizen of
       Texas. . .‘I
             Section 8 provides that the amount of each bid to
buy or lease public free school land shall be entered on the
Board’s docket and further states:
              “The minutes shall show the fact of ac-
        ceptance of a bid or the rejection   of a bid
        and the approval of the minutes will constl-
        tute the approval of the act of acceptance or
        the act of rejection,   as the case may be.”
               Section    10 states:
              “All awards or leases shall be issued by
        the Commissioner of the Qeneral Land Office In
        accordance with the minutes as approved by the
        School Land Board a”
Honorable Bill   Allcorn,   page 3 (WW-434)

             Section   13 provides:
             "The School Land Board shall have the
       right to reject any and all bids, but unless
       the Board elects to reject any and all bids,
       it shall be required to accept the best bid
       submitted."
               The accuracy of the minutes a8 prepared by the
secretary   has not been challenged and they reflect   that the
high bid for the river bed tract In question was accepted
by the Board on motion. Our problem then is to determine
whether the Board Is required to approve the minutes re-
flecting   such action or whether It may decline to approve
same, regardless    of their accuracy, and may further review
Its previous acceptance of the bid with the right to arrive
at a different    conclusion.
              The question is a very close one, and It must
be admitted at the outset that the above quoted language
from Section 8 of the 1939 statute is ambiguous and is sub-
ject to two different     Interpretations,  either of which can
be supported by convincing arguments. What Is meant by the
words : "the minutes shall show the fact of acceptance of a
bid . . . and the approval of the minutes will constitute
the approval of the act of acceptance.      . .'I? The fact or
act of acceptance,     It Is argued, is the act of the Board
when the bids are opened, awarding the lease to the high
bidder, and the minutes are a ministerial       act recording
the facts as they occurred.      With equal force It is argued
that Section 8 means that the approval of the minutes is
a discretionary    thing giving the Board the opportunity       to
review its earlier     act and to reach a different    conclusion.
               In these circumstances,   we seek to ascertain
the legislative     intent, because the intention   of the Legis-
lature,   as has often been said by our Texas courts,     is the
law. 39 Tex.Jur. 166, Statutes,      Sec. 90. At the outset,   it
seems apparent that if the Legislature      intended to give the
Board the right to accept an offer and the right to cancel
the action when the minutes are up for approval two or three
weeks later,    this would be an unusual arrangement and general-
ly at variance with the customary method of entering into
contractual    agreements, but the Legislature    could do this if
that seemed to it to the best interest      of the School Fund.
              Our Supreme Court has said that in construing
statutes  "the circumstances   of business usage, and the life
and habits of the people at the time of the passage of the
act" will be considered.    Cousins v. Sovereign Camp W.O.W.,
                                                                -       -




Honorable   Bill   Allcorn,   page 4 (WW-434:)

120 Tex, 107, 35 S.W.2d 696. In ,the light of customary busi-
ness usage in awarding contracts   to the high bidder In one
action and one action only, it would seem that before a con-
struction  requiring two acceptances  is adopted, the statute
language should be clear and unambiguous. Such is not true
of the statute under study.
               A canon of statutory   construction    Is "that a
statute be construed as a whole and all of Its parts be har-
monized, if possible,     so as to give effect     to the entire act,
according to the evident Intention      of the Legislature".     39
Tex,Jur, 209, Statutes,     Set, 113. In construing the meaning
of Section 8, we have studied the act creating the School
Land Board as a whole. The act provides for the appointment
of a secretary    and that the Board "shall ieep a record of Its
proceedings'to    be called Its minutes. 0 0 9 ,which minutes are
required to be open to public inspection.        The language of Sec-
tion 5 Is mandatory. A record (minutes) "shall"         be kept of
the proceedings    of the Board,
             Again in Section 8 the language is mandatoq.   "The
minutes shall show the fact of acceptance of a bid. D 0 The
approvalmhe      minutes as so prepared "will constitute  the
approval of the act of acceptance.   e *'
             It seems to us that a correct disposition    of this
question requires a study of the nature of "minutes".     His-
torically  and traditionally, the minutes of a meeting faith:
fully record the several events that there transpired.     They
should contain nothing current, Bather they are a record of
the past, a written record made against the time when memories
grow dim and disputes arise as to what actually    occurred.   A
minute is thus defined In Webster's New International     Dlc-
tlonary,  2nd Edition:
               "5a. a memorandum or draft,     as of in-
        structions   to an ambassador; a note to pre-
        serve the memory of anything; as to take
        minutes of a contract or of a debate,
              b. Speclf,,   pl. The official    record made
        of the transactions     OP proceedings   at a meeting
        of an organized body, as of the stockholders
        or directors    of a corporation."
               In connection with corporate minutes,     it   is said
in 18 C.J.S.    610, Corporations, Sec. 191b:
              "A corporation   speaks through its
        records;  hence it is said, public policy
        requires that the record of its acts must
        be kept faithfully   in order to protect the
        rights of stockholders    and persons doing
        business with it."   (Emphasis added.)
Honorable   Bill   Allcorn,   page 5 (WW-434)

             The attitude of the Texas courts in relation to
the function of minutes is indicated  in Coleman v. Zapp, 105
Tex. 491, 151 S.W. 1040, 1041, wherein it Is said:
              "The judgment of a cqurt is what the
       court   pronounces.  Its rendition  Is the ju-
       dicial   act by which the court settles   and
       declares the decision     of the law upon the
       matters at issue. Its entry Is the mlnlaterlal
       act, by which an enduring evidence of the ju-
       dicial   act is afforded.
              "The failure  of the minute entry to
       correctly   or fully recite what the court ju-
       dicially   determined does not annul the act
       of the court, which remains the judgment of
       the court notwithstanding    Its imperfect record.
       Freeman on Judgments, g 38.
             "Hence it is that from the earliest
       times the power of aorrecting        or amending
       their records,     by nunc pro tune entry, so
       as to faithfully     recite their action,    has
       been possessed and exercised        by the courts
       as an inherent right,       . . . If a court is
       made aware that through mistake ore omission
       its recor&do      not recite its judgment as
       actually   rendered. we do not doubt that It
       is not &ly the right but the duty of thr
       court, of its own motion and after due notice
       tothe    parties,   to order the proper entry.    . .
              "A proceeding of such character,   whose
       only purpose Is to have the judgment entry
       speak truly the judgment as rendered, neither
       asserts nor seeks the enforcement of any new
       right.   It presents no $ssue between the~partles
       except in respect to the accuracy of the record,
       and otherwise involves the adludlcation      of
       nothing between them. It Is powerless to,reopen
       the controversy    as closed and sealed by.the
       judgment, and makes no such &tempt. The in-
       quiry under it is not what judgment might or
       ought to have been rendered, but only what
       judgment was rendered; and such is the sole
       issue to be determined.”     (Emphasis added.)
             And in Sloan v. Riche , 143 S.W.2d 119 (Tex.Civ.
App. 1940, error dism. jt. corr.    the court quoted from the
Coleman case, supra, and further &oted from 15 R.C.L. 571,
Section 85, as follows:
Honorable Bill   Allcorn,   page 6 '(JJJ1-'4"j4\1

              "Although it has been said on high
       authority that a .judgment is a solemn
       record, the entry or'record      of the judg-
       ment should not be confused with the
       judgment Itself.     The judgment Is a judl-
       clal act of the court; the entry is the
       ministerial    act of the clerk. The judgment
       is as final and complete when pronounaed
       by the, Court as when It Is entered and
       recorded by the clerk. Although such entry
       may be necessary to give full force to the
       judgment as affecting     the rights of third
       parties,    the entry or recording of a judg-
       ment is not essential     as between the parties
       themselves.    A judgment therefore    is con-
       sidered as having been rendered when the
       court has pronounced a decree which finally
       determines the rights of the parties and
       nothing remains to be done but for the clerk
       to record the entry of the judgment. The
       judgment Itself     Is not what may be entered,
       but is that which is considered and delivered
       by the Court. Even If the judgment may be
       proven only by the record, yet it derlves Its
       force,   not from its entry on the record, but
       from its rendition     by the court."
            And see City of Talladega v. Jackson Tlnney Lumber
Company, 95 So. 455, 458, 209 Al a. 106.
              It follows from what has been said that we are
of the opinion that the Board is under a duty imposed by law
to keep full and correct records of Its proceedings,       and when
the accuracy of the minutes prepared by the secretary        of the
Board reflecting    acceptance of a bid 1s ascertained,      the
Board's duty Is to approve the same. Hence, while the Board
has heard evidence and argument ably presented pro and con
as to the benefit     or detriment to be derived from a rebidding
of the lease on another basis, and while reasonable minds may
and do differ    as to wherein the State's   best interest   lies,
it is our opinion that the Board accepted the high bid on
March 10, and It has no authorlty under the law to reopen
the matter. The entry of the minutes is a ministerial        act and
must reflect   the facts which transpired    at the meeting.
                                SUMMARY
             The minutes of the School Land Board as
       pr,epared by the secretary reflect that the
       Board accepted the high bid for a lease on a
Honorable   Bill   Allcorn,   page 7' (W-434)

         Rio Grande river bed tract in Hidalgo
         County. The Board has the legal duty
         under Article   5421c-3, Sections 6 and
         8, v.c.s.,   to approve such minutes, if
         satisfied  as to their accuracy,  and is
         without authority   to reopen the matter
         for new bidding on another basis, the
         approval of minutes being merely minis-
         terial.
                                     Yours very truly,
                                     WILL WILSON
                                     Attorney General of Texas


                                     By     J. Arthur Sandlln
                                            Assistant
JAS:bh
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn,      Chairman
Edward Cazares
J.C. Davis, Jr.
Mark McLaughlin
James H. Rogers
REVIEWEDFORTHEATTORNEY
                     GENERAL
BY:
      W.V. Geppert
