R-1017



### AUSWN PB.

TSSXAS

January 24,1948

Honorable William N. Hensley Criminal District Attorney Bexar County San Antonio, Texas Opinion No. V-485 Re: Whether a clerical error by the Board of Equalization will invalidate the assessment and related questions. Dear Mr. Hensley:

Your letter request relative to the above-captioned matter reads, in part, as follows:

“I’have received from the Commissioners’ Court ofBexar County the following:

“‘The Commissioners’ Court has heretofore passed anumber 

### oforders cancelling assessments and directing the Tax Assessor-Collector ofBexar County to cancel the set assessment appearing onthe 1947 tax roll by reporting it on the Form 17list of errors and to reassess the property and to present the new assessment to the Commissioners’ Court for approval as required by Articles 7346 and 7347, Revised Civil Statutes. In each of sucbcases, the order recited that the assessment was invalid because of a clerical error in the Board of Equalization.

“‘On November 21, 1947, several such orders 

### were r.eturned to the Commissioners’ Court with a statement from the Hon. P. E. Dickinson, Tax Assessor-Collector of Bexar County, substantially as follows:

““We regret,very much that we.cannot accept the 

### order of October 29, 1947, issued by Commissioners Court of Bexar County, Texas, instructing theHonorable William N. Hensley, Page 2 (V-485)

Assessor-Collector to reassess property in the name ofFidelity Realty Company No. 45.

“‘- It is our understanding that the value of the property as fixed by the County Commissioners sitting as a Board of Equalization is final, subject only to being set aside for fraud or the adoption of afundamentally wrong method ofa~ssessment.“’

“‘It is my feeling that where a clerical error is made in the Board ofEqualization setting evaluations on property on the tax rolls, that the order of the Commissioners’ Court, when that fact is,brought to its attention, probably should find as afinding afact by the Commissioners’ Court that evaluation was invalid because .of such clerical error. Idonot believe that the law can mean that the Commissioners’ Court is restricted in its findings to a.finding of fraud or the adoptioarof a fundamentally 

### wrong assessment. “Therefore, Irequest your opinion upon the following questions:

“1. Is it proper for the order ofthe Commissioners’ Court, where such is thefacts, to’ contain a finding that the evaluation placed by the Board of Equalization on the property in question was invalid because ofa clerical error in computing such value by the Board of Equalization?

“‘2. Is it necessary. that the Commissioners’ Court, in such case, find that the evaluation, and subsequent assessment, was invalid because of the adoption ofa fundamentally 

### wrong method ofassessment?

“‘3. Is it not sufficient that the Commissioners’ Court find that a clerical error exists as abasis for its order.declaring its evaluation, and subsequent assessment,, invalid?

“4. Ifit is not legally sufficient for the Court to find a clerical error exists, then what specific terminology must be used in order forHonorable William N. Hensley. Page 3 (V-485)

the Commissioners’ Court to set aside an invalid and improper evaluation made by the Board ofEqualization? I” We are enclosing herewith the prior Opinions ‘J-1342, O-1462, O-6257, and O-7412, which set out applicable statutes relative to invalid assessments and the method piovided in having prop- ; erty re-assessed.However, from the facts stated in your letter, we are of the opinion that the assessments in question are valid. Clerical errors were made by the Equalization Board inperforming its duty in equalizing add correcting the assessments. Assuming that the assessments were valid at the time the tax assessor submitted the list ofassessments to the Equaliaation Board, clerical errors by the Board would not, in our opinion, make the assessment void. The Commissioners’ Court, sitting as a board of equalization, is a quasijudicial body. Ward County v. Wentz, 69 S.W. (2) 571; City ofEl Paso v. Howze, 248 S.W. 99. Itis our opinion that the Commissioners’ Court, convened as aboard of equalization, has the same authority to make the record of its findings a,stovaluations correctly and fully reflect what the court found, as a court has to corroct~ errors in the entry of its’judgment by a nunc pro tune order. We must assume. as a baAis for this opinion that the changes in the assessment roll as or-, -’ dered by the Commissioners’ Court, were ordered because of clerical ) errors and that the’finding that an error had been made in entering its judgment approving 

### or fixing aparticular valuation is correct. The Supreme Court of Texas in Coleman v. Zapp, 151S.W. 1040, inuphold

### ingthe power of c~ourts to correct their records.by nunc pro tune entries, used the following language:

“The judgment ofa court is what the court pronounces. Its rendition is thejudicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministeriel act by which an enduring evidence of thejudicial act is affosded. *The failure ofthe minute entry to correct-

‘ly or fully recite what the court judicially determined does not annul the act of the court, which remains thejudgment of the court notwithstanding it.simperfect record. Freeman on Judgments, § 38. “Hence it is that from the earliest times the power of correcting or amending their records, by nunc pro tune entry, so as to faithfully recite their action, has been possessed and exercised by theHonorable William N. Hensley, **Page** 4 (V-485)

courts as an inherent right, independent of any statute, and, inthe absence of express provision, unaffected by limitation. 

### Freeman on

### Judgments, %56; Ency. Pl. 81Prac. vol. 18, p. 459. Our statutes providing for the correction af mistakes in the record ofjudgments and decrees (articles 1356 and 1357, Sayles’ CM1 #@at.) gevem the procedure of its exercke; hu#i&ey are only cumulative ofthis inherent power ofthe courts to have their records at~all 

### times speak the truth; Ifa court is made aware that through mistake or omission its records do not recite its judgment as actually rendered, we donot doubt that it is not only the right but the duty of the court, of its own motion and after due notice to the parties, to~order the proper entry. The nature ofajudicial record, the accuracy ofwhich is the peculiar concern ofthe court and which for that reason and to that extent remains within the court’s control, forbids that its correctness as an expression or evidence ofjudicial action should depend upon the inauguration ofa proceeding by the parties; and it is therefore plain that such a’ proceeding only invokes an authority which the court may exercise of its own accord. InXfmenes v. Ximenes, 43 Tex. 458, Judge Moore quoted the following language from the opinion ofJudge Wheeler in Burnett v. State, 14Tex. 456: “Every court has the right tojudge of its own records and minutes, and, ifit appear satisfactorily to them that an order was actually made at aformer term and omitted to be entered by the clerk,‘they,may at any time direct such order to be entered onthe records as ofthe term when itwas made.“’ And then announced: ‘And there can be no doubt, we think, that this court may, at a subsequent term after a final judgment, ifthere is the proper’ pred-~ icate for it. correct clerical errors or mistakes, cure defects ofform. or add such clause as may be necessary to carry out thejudgment ofthe court, make the entry in the minutes correspond with and correctly 

### express thejudgment actually rendered, as shown by the 

### entire record.’ In Whittaker v. Gee, 63 Tex. 435, itwas held by Chief Justice Willie as follows: ‘Frequent decisions ofthis court have settled the right to have ajudgment amended after the expirati,on of the term at which itwas obtained, when, through mistake or clerical error, the record does not speak.

Honorable William N. Hensley. Page 5 (V-485)

fully or truly thejudgment actually rendered in a cause.‘” Based upon the above, it is our opinion that the Cdmmissioners’ Court, sitting as a board of equalization, after due notice to the taxpayer, may by a nunc pro tune entry, correct clerical errors in its minutes of prior meetings so they will correctly reflect the prior action of the Board. Then itwill become the tax collector’s duty to correct his tax rolls to conform thereto.

SUMMARY The Commissioners’ Court, sitting as a board of equalization, after due notice~to the taxpayer, has the authority to correct clerical errors in its minutes of prior meetings by a nunc pro tune entry, so that the minutes will correctly reflect the prior action ofthe Board in equalizing assessments. The tax collector should then correct hi,stax rolls to eonform thereto.

Yours very truly ATTORNEYGENERALOF TEXAS

W. V. Geppert, Assistant WVG/JCP APPROVED :

T ASSISTA NT ORNEY GENERAL