. . 

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 prepared 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, 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. 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 reposed in him. His duties are fixed by law, 

are mandatory and ministerial.” 

State v. Robison was decided in 1930, and apparently 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 

the proper interpretation of certain portions of Article t 

on 

5 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 acceptance of a bid or the rejection of a bid 

and the approval of the minutes will constltute 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 reflecting 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 subject 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 Legislature, 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 generally 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 business usage in awarding contracts to the high bidder In one 

action and one action only, it would seem that before a construction 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 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, 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 Section 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". Historically 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 Dlctlonary, 2nd Edition: 

"5a. a memorandum or draft, as of instructions to an ambassador; a note to preserve 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 judicial 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 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 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 inquiry 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 , 

App. 1940, error dism. jt. corr. 

143 S.W.2d 119 (Tex.Civ. 

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 judgment should not be confused with the 

judgment Itself. The judgment Is a judlclal 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 judgment is not essential as between the parties 

themselves. A judgment therefore is considered 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 ministerial. 

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