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NY 21, 1958

Honorable Bill Allcorn Opinion No. WW-434 Commissioner General LandOffice Re: Proper construction Austin, Texas of Article 5&21c-3, V.C.S., as samepertains 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 LandBoard, the minutes of the Board as prepared by the Secretary reflect that motion wasmade, 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 aprotest waslodged with the Board against awarding of a lease on the river bed in question to the high bidder., anda hearing washadthereon. 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 nofinal acceptance of abid until the minutes of ameeting at which the acceptance occurs are approved?" Underprevious statutes, the State stood In the position of an offerer with noauthority to accept or reject bids. See State v. Robison, 119Tex. 302, 30S.W.2d 292, wherein 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. Hehas nopower, discretion or authority under the act to accept or reject the bid of theHonorable Bill Allcorn, page 2 (W-434)
highest bidder. But the statute makes it. his duty to ascertain whois the highest bidder, andto execute a lease to him. No discretion, nopower of rejection is reposed in him. His duties are fixed by law, are mandatory andministerial.” State v. Robison wasdecided in 1930, andapparently 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 1939the 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. Theanswer to your question depends u the proper interpretation of certain portions of Article ton 521c-3 as follows: Section 5provides that the School LandBoard shall meet on the 1st and 3rd Tuesday of each monthandthat such Board shall select a secretary.

Section 6provides:

“The School LandBoard shall keep a record of Its proceedings to be called lte minutes which shall inolude a docket onwhich the secretary shall enter all matters to be considered by the Board, the minutes anddooket to be subject to lnspeation by any citizen of Texas.

. .‘I Section 8provides that the amountof each bid to buy or lease public free school land shall be entered on the Board’s docket andfurther states:

“The minutes shall showthe fact of acceptance of abid or the rejection of a bid andthe approval of the minutes will constltute the approval of the act of acceptance or the act of rejection, as the case maybe.” Section 10 states:

“All awards or leases shall be issued by the Commissioner of the Qeneral LandOffice In accordance with the minutes as approved bythe School LandBoarda ”Honorable Bill Allcorn, page 3 (WW-434)

Section 13provides: "The School LandBoard shall have the right to reject anyandall bids, but unless the Board elects to reject any andall bids, it shall be required to accept the best bid submitted." Theaccuracy of the minutes a8prepared bythe secretary has not been challenged andthey reflect that the high bid for the river bed tract In question wasaccepted by the Board onmotion. Ourproblem then is to determine whether the Board Is required to approve the minutes reflecting such action or whether It maydecline to approve same, regardless of their accuracy, andmayfurther review Its previous acceptance of the bid with the right to arrive at a different conclusion.

Thequestion is a very close one, andIt must be admitted at the outset that the above quoted language from Section 8 of the 1939 statute is ambiguous and is subject to two different Interpretations, either of which can be supported by convincing arguments. WhatIs meantby the words: "the minutes shall showthe fact of acceptance of a bid

. . . andthe approval of the minutes will constitute the approval of the act of acceptance.

. .'I? Thefact or act of acceptance, It Is argued, is the act of the Board whenthe bids are opened, awarding the lease to the high bidder, andthe minutes are aministerial act recording the facts as they occurred. With equal force It is argued that Section 8meansthat the approval of the minutes is a discretionary thing giving the Board the opportunity to review its earlier act andto reach a different conclusion.

In these circumstances, weseek to ascertain the legislative intent, because the intention of the Legislature, as has often been said by our Texas courts, is the law. 39Tex.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 andthe right to cancel the action whenthe minutes are upfor approval two or three weeks later, this would be anunusual arrangement andgenerally at variance with the customary method of entering into contractual agreements, but the Legislature could dothis if that seemedto it to the best interest of the School Fund.

OurSupremeCourt has said that in construing statutes "the circumstances of business usage, andthe life andhabits of the people at the time of the passage of the act" will be considered. Cousins v. Sovereign CampW.O.W.,- -

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

120Tex, 107, 35 S.W.2d 696. In ,thelight of customary business usage in awarding contracts to the high bidder In one action and one action only, it would seemthat before a construction requiring two acceptances is adopted, the statute language should be clear andunambiguous. Such is not true of the statute under study.

Acanon of statutory construction Is "that a statute be construed as awhole andall of Its parts be harmonized, 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, wehave studied the act creating the School LandBoard as awhole. Theact provides for the appointment of a secretary andthat the Board "shall ieep a record of Its proceedings'to be called Its minutes. 009,whichminutes are required to be open to public inspection. Thelanguage of Section 5Is mandatory. Arecord (minutes) "shall" be kept of the proceedings of the Board,

Again in Section 8the language is mandatoq. "The minutes shall showthe fact of acceptance of a bid. D0 The approvalmhe minutes as so prepared "will constitute the approval of the act of acceptance. e *'

It seemsto us that a correct disposition of this question requires a study of the nature of "minutes". Historically andtraditionally, the minutes of ameeting faith: fully record the several events that there transpired. They should contain nothing current, Bather they are a record of the past, awritten record madeagainst the time whenmemories grow dimanddisputes arise as to whatactually occurred. A minute is thus defined In Webster's NewInternational Dlctlonary, 2ndEdition:

"5a. amemorandumor draft, as of instructions to an ambassador; a note to preserve the memoryof anything; as to take minutes of a contract or of a debate, b. Speclf,, pl. Theofficial record made of the transactions OP proceedings at ameeting of an organized body, as of the stockholders or directors of a corporation." In connection with corporate minutes, it is said in 18C.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 andpersons doing business with it." (Emphasis added.)Honorable Bill Allcorn, page 5 (WW-434)

Theattitude of the Texas courts in relation to the function of minutes is indicated in Colemanv. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041, wherein it Is said:

"Thejudgment of a cqurt is whatthe court pronounces. Its rendition Is the judicial act bywhich the court settles and declares the decision of the law uponthe matters at issue. Its entry Is the mlnlaterlal act, bywhich an enduring evidence of the judicial act is afforded. "The failure of the minute entry to correctly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwithstanding Its imperfect record. Freeman onJudgments, g38. "Hence it is that from the earliest times the power of aorrecting or amending their records, by nuncpro 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 madeaware that through mistake oreomission its recor&do not recite its judgment as actually rendered. wedonot doubt that It is not &ly the right but the duty of thr court, of its ownmotion andafter due notice tothe parties, to order the proper entry.

. . "Aproceeding 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 anynew 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, andmakesno such &tempt. Theinquiry under it is not whatjudgment might or ought to have been rendered, but only what judgment was rendered; and such is the sole issue to be determined.” (Emphasis added.) Andin Sloan v. Riche
, App. 1940, error dism. jt. corr. 143S.W.2d 119 (Tex.Civ. the court quoted from the Coleman case, supra, andfurther &oted from 15R.C.L. 571, Section 85, as follows:Honorable Bill Allcorn, page6 '(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 judgment should not be confused with the judgment Itself. Thejudgment Is ajudlclal act of the court; the entry is the ministerial act of the clerk. Thejudgment is as final and complete whenpronounaed by the,Court as whenIt Is entered and recorded by the clerk. Although such entry maybe necessary to give full force to the judgment as affecting the rights of third parties, the entry or recording of ajudgment is not essential as between the parties themselves. Ajudgment therefore is considered as having been rendered whenthe 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 whatmaybe entered, but is that which is considered and delivered by the Court. EvenIf the judgment maybe proven only by the record, yet it derlves Its force, not from its entry on the record, but from its rendition by the court." Andsee City of Talladega v. Jackson Tlnney Lumber Company,95 So. 455, 458, 209Ala. 106.

It follows from whathas been said that weare of the opinion that the Board is under a duty imposed by law to keep full and correct records of Its proceedings, andwhen 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 andargument ably presented pro and con as to the benefit or detriment to be derived from a rebidding of the lease on another basis, andwhile reasonable minds may anddo 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. Theentry of the minutes is aministerial act and must reflect the facts which transpired at the meeting. SUMMARY Theminutes of the School LandBoard as pr,epared by the secretary reflect that the Board accepted the high bid for a lease onaHonorable Bill Allcorn, page 7' (W-434)

Rio Grande river bed tract in Hidalgo County. TheBoard has the legal duty under Article 5421c-3, Sections 6and 8, v.c.s., to approve such minutes, if satisfied as to their accuracy, and is without authority to reopen the matter for newbidding onanother basis, the approval of minutes being merely ministerial. Yours very truly,
WILLWILSON Attorney General of Texas 

# By

J. Arthur Sandlln Assistant JAS:bh APPROVED: OPINIONCOMMITTEE Geo. P. Blackburn, Chairman EdwardCazares J.C. Davis, Jr. MarkMcLaughlin JamesH. Rogers REVIEWEDFORTHEATTORNEY GENERAL BY: W.V. Geppert