## OF TEXAS

GROVER SELLERS AUB- ia, - -N *-RNEYG%~NERAr.

Honorable T. K. Wilkinson County Auditor Hill Couilty Hlllsboro, Texas

Dear Sir: OpinionNo. O-6423 .- Re: Is it mandatory that the county tilerk ojPone of his deputies attend all meeting3 of the commissioners' cou?.% aS ex officlb clerk thereof, and another question.

oweackhowledge receipt of your reijuestfor 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 

### Courtas ex officio Clerk thereof?

"2D 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'countyClerk is not in attendance at the meetings of the Commlssloiiers Court as Ex offlclo Clerk, 'andorders are passed"and otherbusiness transactedand 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 shallb6 ex-offIcio"clerk of the.'commlssioner& court; and he'shall attend upon eischterm 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 commissionersHonorable T. K. Wilkinson, page 2 o-6423

of 41 court, and perform all such other duties as may be prescribedby law."
Article 2349 of said statutes is as follows:
"Thecourt shall require the county clerk to keep suitablebooks inwhich shallbe 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 attestedby the clerk. The clerk shall also record all authorized proceedings of the court '~ between terms; and such record shallbe read and signed on the first dciyof the term next after suchproceedings 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:

'~"Recordsof Proceedings -Authbnticatlon - Se&l -The Comml'ssloneri Court is'tiequired to recordupon suitable-'books the procegdlngs of each term of court; and the minutes are required to be read over and slgni%d bjithe county judge 6~ the member presiding and attested by the clerk. All authority ejrercised 'bythe court mtit be evid‘enctid in that mannei‘. It lsi not necessary that a singlebook shall contain the i%cord of the court's prbceedings;vtirlous books Ming be kept Znwhlch‘proceedlngs relating to particularmatters may be proberly recorded; Each book kept and used forkthis purpose 1s; within the meaning of the law, a minute-book, and the entries thereinmade are minutes.
"Commissioners'courts are courts of'reaord, and they mst &uthenticate all officialacts, if such authentication Is required, by a sealprescribedby statute.
"Entryof Orders - The requirement that every officialact of the commissioners'court shallbe evidencedby an order enteredupon the mlnut& of the cotirt

has been modified to the extentthat where an order Is shown to have been actuallym&de by the court, and has been acted upon, the omlsslon of the clerk to record the orderwill 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 enteredupon the court's mlnu.tes,it may nevertheless be provedby par'blevidence and given effect. The rule Is necessarilydifferent where an okder Is requiredby the termsof a special'statute to be entered 'ofrecord, orwhere
a general statutedeclares that such orilershall be bold unless recorded. It is held that the" evidence to establish a contractmust be contained in the written proceedings of the court. However, if the court falls to place an orderupon the minutes at the tlme~when it is made, as required by law, the order may'be entered.'upon the minutes at a subsequentregular 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~%onslderatlona matter where complaintwaa made because'~extracts from the minutes of the commissioners' courtwere 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 latestannouncement of this ruleXs foundsInthe case ofWeaver vs; Commissioners'Court of Nacogdbdhes~.Cauhty,~ 146 S,W. (26) 170,wherein-the Commlsslon of Appealswas pass; .' lngupbn the contention that a~certaln'order signedbgthe“c-buiity judge and three commissionerswas'the action'of said. offlclals personallyand not an official order,‘and that~ltshoula have been enteredupon the minutes of the commissioners1 court. In overruling such contentions, the court held as ~follows:
.~~ "It iswell settled that.'anorder of the commissioners' court actually paased~IS not vold.because not“entered upon-the"minutes of the court, and the fact that Itwas 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 similarmatter:

"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 courtwhose proceedings are required by law to be recorded In minutes or books kept for that purpose is a court of record.
"Theword 'ptioceedlngs' isused 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 Includea pertinentmo$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‘isit&elf"a 'ptioceed: lng' in the regular and ordinaryway, and;we think, shouldbe 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. ..~ "Agood reason 1s easily assigned, if reason for the statuteVere.'required, whyy‘&uch

proceedings should be made a matter of record. .'The CommissFoners"Coui% is"& cburt of-'generaljurlsdiction In this State, &id as weehave 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 concernwith the .ofPlclal-'acts of such court, ahd It5 probeedlngs therefore are of such lmportance as that~an accurtite record shouldbe kept for the general Information of the public concerned. Motieover;

while it sometimes-happensthat the fallure'to make a minute of certain proceedihgs'lsnot Patal to the validity of.thiisame-.(See Laiida v. State, 131 S.W. (2d) 321,) and that the validity of an.otider

properly ptissedla susceptible of proof and the order may be provedby oral testlmony Mecom v. Ford, 252 S.W. 491),nevertheless, t the statutory requirement for duly rbcorded m'lnutes,

attested by the ptioperoffichrs, Is the saferway, and matters of such importance should not be left to thedifficult and sometimesuncertainmethod of proof dehors the record."

It has been held that the provisions of th8 .+tatute~s hereinabovereferred 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 terinof the commissioneri?.' court are directory only and not mandatory, and that the failure of the cbunty clerk of his aeputy to perform such serviceswill 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 statutoryprovisions requiring the-.county ~clerktom attend'upon and record the proceedxngs of each term of the commissloner's-court shouldbe disregarded. Art. 5970 ofV.A.C.S. provides that a county clerk may be removed from offId@ by the judge of the district court'for incompetencyor offlc,ialmlsconduct; "officialmisconduct" being defined by Art. 5973 of said statute as follows;

"By 'officialmisconduct' as used h&reinwith 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 mannerwith the admliilstr~tlon of justi&, or the .executionof 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. ' (Emphasisours)

We trust that this aatlsfactorllyanswers 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