OF TEXAS 

GROVER SELLERS 

AUB- ia, - 

-N 

*-RNEYG%~NERAr. 

Honorable T. K. Wilkinson 

County Auditor 

Hill Couilty 

Hlllsboro, Texas 

Dear Sir: Opinion No. O-6423 .- 

Re: Is it mandatory that the county 

tilerk ojP one of his deputies 

attend all meeting3 of the commissioners' cou?.% aS ex officlb 

clerk thereof, and another question. 

owe ackhowledge receipt of your reijuest for an opFnlon 

on the above matters, said request being as follows: 

"1 . Is It mandatory that the County Clerk 

or one of his deuutltis att6nd all meetings of the 

Commissioners Court as ex officio Clerk thereof? 

"2 D Is It mandatory that the County Clerk 

attest the minutes of,the Cominissloners Court g 

neFther the County Clerk nor any of his dtiputles 

were Dresent at the session of the Court and have 

no Dersonal knowledae of the DPOCeedinRS Included 

Fn the minutes? 

"3. In the event the'county Clerk is not in 

attendance at the meetings of the Commlssloiiers 

Court as Ex offlclo Clerk, 'and orders are passed"and 

other business transacted and the County Clerk Fails 

to attest the minutes of the Court, will such failure invalidate the orders and proceedings of the Court?" 

Article 2345 of Vernon's Annotated Civil Statutes is as 

follows: 

"The county clerk shall b6 ex-offIcio"clerk 

of the.'commlssioner& court; and he' shall attend 

upon eisch term bf said commissioners court; preserve and keep all books,-papers;"records~and 

effects belonging theret'o, Fsaue all notices, 

writs and process necessary for the proper executlon of the powers and duties of the commissioners 
Honorable T. K. Wilkinson, page 2 o-6423 

of 

41 

court, and perform all such other duties as may 

be prescribed by law." 

Article 2349 of said statutes is as follows: 

"The court shall require the county clerk to 

keep suitable books in which shall be recorded 

the procei+dlngs of each term of the coutit, which 

record shall be read and signed after each term 

by the county judge, or the member preslaing and 

attested by the clerk. The clerk shall also record all authorized proceedings of the court '~ 

between terms; and such record shall be read and 

signed on the first dciy of the term next after 

such proceedings occurred." 

The general rules governing the keeping of the records 

the commliisloners court are found in 11 Tex.LJur., Sections 

and 42, pages 570-572 In the following language: 

'~ "Records of Proceedings - Authbnticatlon - 

Se&l - The Comml'ssloneri Court is'tiequired to 

record upon suitable-'books the procegdlngs of 

each term of court; and the minutes are required 

to be read over and slgni%d bji the county judge 

6~ the member presiding and attested by the 

clerk. All authority ejrercised 'by the court 

mtit be evid‘enctid in that mannei‘. It lsi not 

necessary that a single book shall contain the 

i%cord of the court's prbceedings; vtirlous books 

Ming be kept Zn whlch‘proceedlngs relating to 

particular matters may be proberly recorded; 

Each book kept and used fork this purpose 1s; 

within the meaning of the law, a minute-book, 

and the entries therein made are minutes. 

"Commissioners' courts are courts of'reaord, 

and they mst &uthenticate all official acts, if 

such authentication Is required, by a seal prescribed by statute. 

"Entry of Orders - The requirement that every 

official act of the commissioners' court shall be 

evidenced by an order entered upon the mlnut& of 

the cotirt has been modified to the extentthat 

where an order Is shown to have been actually m&de 

by the court, and has been acted upon, the omlsslon 

of the clerk to record the order will not render It 

or the gets done in pursuance thereof void. Although an order of the cowissloners' court has 
.- . 

’ 

Honorable T. K. Wilkinson, page 3 O-6423 

never been entered upon the court's mlnu.tes, it 

may nevertheless be proved by par'bl evidence and 

given effect. The rule Is necessarily different 

where an okder Is required by the termsof a 

special' statute to be entered 'of record, or where 

a general statute declares that such oriler shall 

be bold unless recorded. It is held that the" 

evidence to establish a contract must be contained 

in the written proceedings of the court. However, 

if the court falls to place an order upon the 

minutes at the tlme~when it is made, as required 

by law, the order may'be entered.'upon the minutes 

at a subsequent regular or special session." . 

In the case of Landa vs. State et al, 131 S;W. ~321',~ Wit 

dismissed, the'~San Antonlo'Court of Civil~~Appeals had unGer~%onslderatlon a matter where complaint waa made because'~extracts 

from the minutes of the commissioners' court were read In~evldence without first ahowlng that such mliiutes~had~ beensigned. 

by the judge and attested by the clerk, as provided for by'Art. 

2349, but the Court of Civil Appeals overruled sucil contention 

on the ground that the provisions of said article are directory 

and not mandatory. 

The latest announcement of this ruleXs founds Inthe 

case of Weaver vs; Commissioners' Court of Nacogdbdhes~.Cauhty,~ 

146 S,W. (26) 170, wherein-the Commlsslon of Appeals was pass; .' 

lng upbn the contention that a~certaln'order signed bgthe“c-buiity 

judge and three commissioners was' the action' of said. offlclals 

personally and not an official order, ‘and that ~ltshoula have 

been entered upon the minutes of the commissioners1 court. In 

overruling such contentions, the court held as ~follows: 

.~~ 

"It is well settled that.'an order of the commissioners' court actually paased~ IS not vold.because not“entered upon-the"minutes of the court, 

and the fact that It was made can be shown by 

parol evidence:' Mecom v; Ford, 113 Tex. IOg, 252 

sow. 491. See also Whltaker v. Dlllax-d, 81 Tex. 

359, 16 S.W. 1084: If the action of the court -. 

can be proven'by parol evidence, certainly It can 

be proven by circumstances." .~ 

We quote and adopt the following from our'~opl.nl.on No. 

o-6318, which had to do with a somewhat similar matter: 

"It Is uniformly held that' the Commissioners' 

Court is a court of record. Gano v. Palo Pinto 

County, 8 S.W. 634;'Bradford v. Moseley, 223 S.W. 

171. Article 2349 above quoted necessarily makes 
. 

Honorable T. K. Wilkinson, page 4 O-6423 

it so. Any court whose proceedings are required 

by law to be recorded In minutes or books kept 

for that purpose is a court of record. 

"The word 'ptioceedlngs' is used here In Its 

ordinary sense, and means the official functions 

of the court. Such functions are'not limited to 

any particular class of functlons;.but on the 

contrary they Include every official act done by 

the members of the court In tile course of their 

sitting .^' This would Include a pertinent mo$Fon 

m&de by any member of the court In the course of 

passing a besolutloii or--order whatsoevef. Such 

motion Is an lntegral‘part of the resolution or 

order. Furthermore, a motion made by a'member 

of the court duly"ln~'sesslon ‘is it&elf"a 'ptioceed: 

lng' in the regular and ordinary way, and; we 

think, should be entei%d upon the minutes, llhether 

such inotion‘~receives a iiecdnd or not. In parllamenttiry usage in such-a case the motion Xs lost 

for want of a second, and Is thus effectually 

disposed of. ..~ 

"A good reason 1s easily assigned, if reason 

for the statute Vere.'required, whyy‘&uch proceedings should be made a matter of record. .'The 

CommissFoners"Coui% is"& cburt of-'general jurlsdiction In this State, &id as wee have seeQ 1.9 a 

court of-record. It i's a court of tremendous 

lmportaiice'; since it h&s jurisdiction over the" 

county affairs of the county-; The public hai a 

deep concern with the .ofPlclal-'acts of such court, 

ahd It5 probeedlngs therefore are of such lmportance as that~an accurtite record should be kept 

for the general Information of the public concerned. 

Motieover; while it sometimes-happens that the fallure'to make a minute of certain proceedihgs'ls not 

Patal to the validity of.thii same-.(See Laiida v. 

State, 131 S.W. (2d) 321,) and that the validity 

of an.otider properly ptissed la susceptible of 

proof and the order may be proved by oral testlmony t Mecom v. Ford, 252 S.W. 491), nevertheless, 

the statutory requirement for duly rbcorded 

m'lnutes, attested by the ptioper offichrs, Is the 

safer way, and matters of such importance should 

not be left to the difficult and sometimes uncertain method of proof dehors the record." 

It has been held that the provisions of th8 .+tatute~s 

hereinabove referred to making It the duty of the county clerk, 
. 

Honorable T. K. Wilkinson, page 5 O-6423 

either in person or by deputy, to record the proceedings bf 

each terin of the commissioneri?.' court are directory only and 

not mandatory, and that the failure of the cbunty clerk of his 

aeputy to perform such services will nbt invalidate the orders 

and proceedings of the commissioners' court lnsbfar as they 

affect pub133 or private rights. However, It was not intended 

that the statutory provisions requiring the-.county ~clerk tom 

attend'upon and record the proceedxngs of each term of the commissloner's-court should be disregarded. Art. 5970 of V.A.C.S. 

provides that a county clerk may be removed from offId@ by the 

judge of the district court'for incompetency or offlc,ial mlsconduct; "official misconduct" being defined by Art. 5973 of 

said statute as follows; 

"By 'official misconduct' as used h&rein with 

reference to county officers, Is meant any unlaw- 

. 

ful behavior in relation~~t6 the~dutles of his 

office, wllful in its character, bf any officeti 

Intrusted in any manner with the admliilstr~tlon 

of justi&, or the .execution of the laws; ana-. 

includes any wilful OF corruDt Ptillutie, re=al 

or neglect of an officer to perform tiny duty 

enjoined on him by law. ' (Emphasis ours) 

We trust that this aatlsfactorlly answers your Inquiry. 

Yours very truly, 

ATTORNEYGENERALOFTEXAS 

By s/JEis. W. Bassett 

Jas. W. Bassett 

Assistant 

JWB :LJ :wc 

APPROVEI) MAY 12, 1945 

s/Carlos C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Commltt~ee By s/GWB Chairman