## 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 shallbe recorded 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 Commissioners1Court of Bexar County dated August 1, 1960, reading as follows:

"ORDERADOPTING A RULE OF PROCEDURE OF COMMISSIONERS'COURT ON VOTING.

"Amotion .waspresented by County Commissioner Sam Jorrie, duly secondedby County CommissionerA. J. Ploch,which motionwas voted as follows: CommissionersPena,Jorrie and Ploch voting 'Aye': CommissionerWurzbach and Judge Andersonvoting 'Nay': It is ordered by the Court that the followingbe adopted as a rule of procedure of Commissioners' Court: 'Inany case where any member of CommissionersfCourt (County Judge or County Commissioner)abstains from voting or fails to vote when present, the minutes of Commissioners'Court shallhereafter be marked to indicate that the member of Commissioners' Court who abstained or failed to vote when present,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 suitablebook kept for that purpose. Brown, et al v. Reese, 67 Tex. 318, 3 S.W.292 (1887). In Drown v. Reese, supra, the courtheld that the best evidence of a proceeding of the Commissioners'Court is "either the record itself or a certified copy as provided for byHonorable Charles J. Lieck, Jr. Page '2 (WW-942)

statuteunder 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 instanceswhere a member of the Commissioners' Court abstains from voting, rather than casting a "No"vote. If the Clerk abided by the order under consideration,the minutes of a Commissioners'Courtwould 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 invalid.

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'Courtwhich would require the County Clerk to record a voting,abstention 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

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APPROVED: OPINION COMMITTEE w. v. Gwpert, Chairman C. Dean Davis Wm. R. Hemphill IolaWilcox By, F /lcLwd John Reeves Assistant

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore